Vol. 77 Thursday, No. 96 May 17, 2012

Pages 29207–29518

OFFICE OF THE FEDERAL REGISTER

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Contents Federal Register Vol. 77, No. 96

Thursday, May 17, 2012

Agriculture Department Fiscal Year 2012 Draft Work Plan, 29317–29320 See Commodity Credit Corporation See Forest Service Department of Transportation NOTICES See Pipeline and Hazardous Materials Safety Agency Information Collection Activities; Proposals, Administration Submissions, and Approvals, 29313–29314 Election Assistance Commission Centers for Disease Control and Prevention NOTICES NOTICES Agency Information Collection Activities; Proposals, Agency Information Collection Activities; Proposals, Submissions, and Approvals, 29320–29321 Submissions, and Approvals, 29350–29351 Meetings: Employment and Training Administration Community Preventive Services Task Force, 29351 NOTICES Disease, Disability, and Injury Prevention and Control Affirmative Determination Regarding Application for Special Interest Projects, 29351–29352 Reconsideration, 29362 Amended Certification Regarding Eligibility To Apply for Coast Guard Worker Adjustment Assistance, 29362–29363 PROPOSED RULES Determinations Regarding Eligibility To Apply for Worker Safety Zones: Adjustment Assistance, 29363–29366 Carnival Fireworks Display, Nantasket Beach, Hull, MA, Investigations Regarding Eligibility To Apply for Worker 29251–29253 Adjustment Assistance, 29366–29367 Large Cruise Ships; Lower Mississippi River, Southwest Pass Sea Buoy to Mile Marker 96.0; New Orleans, Energy Department LA, 29254–29256 See Energy Efficiency and Renewable Energy Office See Federal Energy Regulatory Commission Commerce Department NOTICES See International Trade Administration Meetings: See National Oceanic and Atmospheric Administration National Coal Council, 29321–29322 Updating State Residential Building Energy Efficiency Commodity Credit Corporation Codes, 29322–29331 RULES Market Access Program, 29474–29514 Energy Efficiency and Renewable Energy Office NOTICES Comptroller of the Currency Petition for Waiver from Energy Residential Refrigerator NOTICES and Refrigerator-Freezer Test Procedures: Supervisory Guidance: Sanyo E&E Corp., 29331–29333 Stress Testing for Banking Organizations With More Than $10 Billion In Total Consolidated Assets, 29458– Environmental Protection Agency 29472 RULES Incorporation by Reference of Approved State Hazardous Consumer Product Safety Commission Waste Management Program: NOTICES Oklahoma, 29231–29235 Meetings; Sunshine Act, 29316–29317 Protection of Stratospheric Ozone: 2012 Critical Use Exemption From the Phaseout of Copyright Office, Library of Congress Methyl Bromide, 29218–29231 PROPOSED RULES PROPOSED RULES Registration of Copyright; Definition of Claimant, 29257– Approvals and Promulgations of Implementation Plans: 29259 State of Montana; State Implementation Plan and Regional Haze Federal Implementation Plan; Copyright Royalty Board Corrections, 29270–29271 PROPOSED RULES Effective Date for Water Quality Standards for Florida Lakes Compulsory License Rates for Mechanical and Digital and Flowing Waters, 29271–29275 Phonorecords, 29259–29270 Incorporation by Reference of State Hazardous Waste Management Program: Defense Department Oklahoma, 29275 PROPOSED RULES NOTICES Federal Acquisition Regulations: Agency Information Collection Activities; Proposals, Updated Postretirement Benefit References, 29305–29307 Submissions, and Approvals, 29334–29336 Agency Information Collection Activities; Proposals, Denali Commission Submissions, and Approvals: NOTICES Foreign Purchaser Acknowledgement Statement of Fiscal Year 2011 Draft Work Plan, 29317 Unregistered Pesticides, 29339–29340

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Green Power and Combined Heat and Power Federal Railroad Administration Partnerships, 29337–29338 PROPOSED RULES NSPS for Nonmetallic Mineral Processing, 29336–29337 Control of Alcohol and Drug Use: Intent to Grant Patent License, 29340–29341 Addition of Post-Accident Toxicological Testing for Non- Protection of Stratospheric Ozone: Controlled Substances, 29307–29312 Request for Methyl Bromide Critical Use Exemption Applications for 2015, 29341–29344 Federal Reserve System NOTICES Export-Import Bank Agency Information Collection Activities; Proposals, NOTICES Submissions, and Approvals, 29345–29347 Economic Impact Policy, 29344–29345 Changes in Bank Control: Acquisitions of Shares of a Bank or Bank Holding Company, 29347 Federal Aviation Administration Formations of, Acquisitions by, and Mergers of Bank RULES Holding Companies, 29347–29348 Airworthiness Directives: Proposals to Engage in or To Acquire Companies Engaged Airbus Airplanes, 29207–29212 in Permissible Nonbanking Activities, 29348 Hawker Beechcraft Corporation Airplanes, 29214–29216 Supervisory Guidance: The Boeing Company Airplanes, 29212–29214 Stress Testing for Banking Organizations With More Than PROPOSED RULES $10 Billion In Total Consolidated Assets, 29458– Rules of Practice for Federally-Assisted Airport 29472 Enforcement Proceedings: Retrospective Regulatory Review; Reopening of Comment Period, 29250–29251 Federal Retirement Thrift Investment Board NOTICES NOTICES Petitions for Exemptions; Summaries of Petitions Received, Meetings; Sunshine Act, 29348 29444–29445 Fiscal Service Federal Communications Commission NOTICES RULES Surety Companies Acceptable on Federal Bonds; Unlicensed Operation in the TV Broadcast Band, 29236– Termination: 29247 Atlantic Bonding Co., Inc., 29472 PROPOSED RULES Assessment and Collection of Regulatory Fees for Fiscal Fish and Wildlife Service Year 2012, 29275–29305 PROPOSED RULES Migratory Bird Hunting: Federal Deposit Insurance Corporation Supplemental Proposals for 2012–13 Hunting Season; NOTICES Meetings, 29516–29518 Meetings; Sunshine Act, 29345 NOTICES Supervisory Guidance: Endangered and Threatened Wildlife and Plants; Permit Stress Testing for Banking Organizations With More Than Applications, 29357–29358 $10 Billion In Total Consolidated Assets, 29458– Environmental Impact Statements; Availability, etc.: 29472 Shadura Natural Gas Development Project; Kenai National Wildlife Refuge, Soldotna, AK, 29358– 29359 Federal Election Commission Meetings: NOTICES Sport Fishing and Boating Partnership Council, 29359– Meetings; Sunshine Act, 29345 29360

Federal Energy Regulatory Commission Food and Drug Administration NOTICES RULES Proposed Restricted Service List; National Register of New Animal Drugs: Historic Places: Ceftiofur Sodium; Lincomycin Powder; Naracin; Tylosin, City of Norwich Department of Public Utilities, 29333– 29216–29218 29334 NOTICES Agency Information Collection Activities; Proposals, Federal Motor Carrier Safety Administration Submissions, and Approvals: NOTICES Experimental Study on Comparing Data Obtained From Agency Information Collection Activities; Proposals, Landline, 29353–29355 Submissions, and Approvals: Irradiation in the Production, Processing, and Handling Training Certification for Entry-Level Commercial Motor of Food, 29352–29353 Vehicle Operators, 29445–29446 Qualification of Drivers; Exemption Applications; Diabetes Forest Service Mellitus, 29446–29447 NOTICES Qualification of Drivers; Exemption Applications; Vision, Meetings: 29447–29449 Lake Tahoe Basin Federal Advisory Committee, 29314

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General Services Administration Millennium Challenge Corporation PROPOSED RULES NOTICES Federal Acquisition Regulations: Entry into a Compact With the Republic of Zambia, 29369– Updated Postretirement Benefit References, 29305–29307 29391

Health and Human Services Department National Aeronautics and Space Administration See Centers for Disease Control and Prevention PROPOSED RULES See Food and Drug Administration Federal Acquisition Regulations: See Substance Abuse and Mental Health Services Updated Postretirement Benefit References, 29305–29307 Administration RULES National Archives and Records Administration Patient Protection and Affordable Care Act: NOTICES Standards Related to Reinsurance, Risk Corridors, and Meetings: Risk Adjustment; Correction, 29235–29236 Advisory Committee on the Presidential Library- NOTICES Foundation Partnerships, 29391 Agency Information Collection Activities; Proposals, National Highway Traffic Safety Administration Submissions, and Approvals, 29348–29349 Statement of Organization, Functions, and Delegations of RULES Authority: Federal Motor Vehicle Safety Standards: Office of The National Coordinator for Health Information Occupant Crash Protection, 29247–29249 NOTICES Technology, 29349–29350 Grant of Petition for Decision of Inconsequential Noncompliance: Homeland Security Department Toyota Motor Corp., Inc., 29449–29450 See Coast Guard National Oceanic and Atmospheric Administration Interior Department NOTICES See Fish and Wildlife Service Meetings: Marine Protected Areas Federal Advisory Committee, International Trade Administration 29316 NOTICES Mid-Atlantic Fishery Management Council, 29316 Extension of Time Limit for Final Results: New England Fishery Management Council, 29315–29316 Sodium Hexametaphosphate From the People’s Republic of China, 29314 Neighborhood Reinvestment Corporation Meetings: NOTICES President’s Export Council, 29314–29315 Meetings; Sunshine Act, 29391 Postponement of Preliminary Determinations of Nuclear Regulatory Commission Antidumping Duty Investigations: NOTICES Utility Scale Wind Towers From the People’s Republic of Approach for Probabilistic Risk Assessment in Risk- China and the Socialist Republic of Vietnam, 29315 Informed Decisions: Plant-Specific Changes to the Licensing Basis, 29391– International Trade Commission 29393 NOTICES Agency Information Collection Activities; Proposals, Occupational Safety and Health Administration Submissions, and Approvals: NOTICES Used Electronic Products; An Examination of U.S. Whistleblower Protection Advisory Committee; Exports, 29360–29361 Establishment, 29368–29369

Justice Department Pipeline and Hazardous Materials Safety Administration NOTICES NOTICES Lodging of Consent Decree under CERCLA, 29361 Actions on Special Permit Applications, 29450–29453 Applications for Modifications of Special Permits, 29453– Labor Department 29454 See Employment and Training Administration Applications for Special Permits, 29454–29455 See Labor Statistics Bureau Delays in Processing of Special Permits Applications, See Occupational Safety and Health Administration 29455–29456 NOTICES Scientific Integrity; Statement of Policy, 29361–29362 Postal Regulatory Commission NOTICES Product List Changes, 29393 Labor Statistics Bureau NOTICES Public Debt Bureau Agency Information Collection Activities; Proposals, See Fiscal Service Submissions, and Approvals, 29367–29368 Securities and Exchange Commission Library of Congress NOTICES See Copyright Office, Library of Congress Agency Information Collection Activities; Proposals, See Copyright Royalty Board Submissions, and Approvals, 29394

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Applications: Transportation Department Van Eck VIP Trust, et al., 29394–29396 See Federal Aviation Administration Joint Industry Plan: See Federal Motor Carrier Safety Administration Addition of BOX Options Exchange LLC, 29396–29397 See Federal Railroad Administration Limited Exemptions: See National Highway Traffic Safety Administration BOX Options Exchange, LLC, 29397–29398 See Pipeline and Hazardous Materials Safety Meetings; Sunshine Act, 29398 Administration Orders of Suspension of Trading: See Surface Transportation Board 1–800–ATTORNEY, Inc. et al., 29399–29416 Self-Regulatory Organizations; Proposed Rule Changes: Treasury Department EDGA Exchange, Inc., 29428–29429 See Comptroller of the Currency EDGX Exchange, Inc., 29438–29440 See Fiscal Service NASDAQ OMX PHLX LLC, 29425–29427, 29440–29441 NOTICES NASDAQ Stock Market LLC, 29435–29438 Agency Information Collection Activities; Proposals, NYSE Arca, Inc., 29416–29425, 29429–29435 Submissions, and Approvals, 29457–29458 Social Security Administration NOTICES Agency Information Collection Activities; Proposals, Separate Parts In This Issue Submissions, and Approvals, 29441–29443 Part II State Department Agriculture Department, Commodity Credit Corporation, NOTICES 29474–29514 Agency Information Collection Activities; Proposals, Submissions, and Approvals, 29443–29444 Part III Substance Abuse and Mental Health Services Interior Department, Fish and Wildlife Service, 29516– Administration 29518

NOTICES Agency Information Collection Activities; Proposals, Reader Aids Submissions, and Approvals, 29355–29357 Consult the Reader Aids section at the end of this page for Surface Transportation Board phone numbers, online resources, finding aids, reminders, NOTICES and notice of recently enacted public laws. Abandonment Exemptions: To subscribe to the Federal Register Table of Contents Alameda d/b/a Alameda Belt Line Railroad, Alameda LISTSERV electronic mailing list, go to http:// County, CA, 29456–29457 listserv.access.gpo.gov and select Online mailing list Central Railroad Company of Indianapolis in Howard archives, FEDREGTOC-L, Join or leave the list (or change County, IN, 29456 settings); then follow the instructions.

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CFR PARTS AFFECTED IN THIS ISSUE

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

7 CFR 1485...... 29474 14 CFR 39 (4 documents) ...... 29207, 29210, 29212, 29214 Proposed Rules: 16...... 29250 21 CFR 510...... 29216 520...... 29216 522...... 29216 558...... 29216 33 CFR Proposed Rules: 165 (2 documents) ...... 29251, 29254 37 CFR Proposed Rules: 202...... 29257 385...... 29259 40 CFR 82...... 29218 272...... 29231 Proposed Rules: 52...... 29270 131...... 29271 272...... 29275 45 CFR 153...... 29235 47 CFR 15...... 29236 Proposed Rules: 1...... 29275 48 CFR Proposed Rules: 31...... 29305 49 CFR 571...... 29247 Proposed Rules: 219...... 29307 50 CFR Proposed Rules: 20...... 29516

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Rules and Regulations Federal Register Vol. 77, No. 96

Thursday, May 17, 2012

This section of the FEDERAL REGISTER The Director of the Federal Register also removes Model A320–111 airplanes contains regulatory documents having general approved the incorporation by reference from the applicability because there are applicability and legal effect, most of which of a certain other publication listed in no operational Model A320–111 are keyed to and codified in the Code of this AD as of December 19, 2005 (70 FR airplanes in the United States and Federal Regulations, which is published under 69067, November 14, 2005). Airbus intends to remove this model 50 titles pursuant to 44 U.S.C. 1510. ADDRESSES: You may examine the AD from the EASA Type Certificate Data The Code of Federal Regulations is sold by docket on the Internet at http:// Sheet (TCDS). You may obtain further the Superintendent of Documents. Prices of www.regulations.gov or in person at the information by examining the MCAI in new books are listed in the first FEDERAL U.S. Department of Transportation, the AD docket. REGISTER issue of each week. Docket Operations, M–30, West Comments Building Ground Floor, Room W12–140, 1200 New Jersey Avenue SE., We gave the public the opportunity to DEPARTMENT OF TRANSPORTATION Washington, DC. participate in developing this AD. We have considered the comments received. Federal Aviation Administration FOR FURTHER INFORMATION CONTACT: Sanjay Ralhan, Aerospace Engineer, Support for NPRM (76 FR 77934, 14 CFR Part 39 International Branch, ANM–116, December 15, 2011) Transport Airplane Directorate, FAA, Thomas Hayden Barnes stated he [Docket No. FAA–2011–1321; Directorate 1601 Lind Avenue SW., Renton, supports efforts to ensure airline safety Identifier 2011–NM–045–AD; Amendment Washington 98057–3356; telephone 39–17047; AD 2012–09–12] and the NPRM (76 FR 77934, December (425) 227–1405; fax (425) 227–1149. 15, 2011) appears reasonable. RIN 2120–AA64 SUPPLEMENTARY INFORMATION: US Airways stated it supports the Discussion intent of the NPRM (76 FR 77934, Airworthiness Directives; Airbus December 15, 2011). Airplanes We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR Request to Revise Cost Estimate AGENCY: Federal Aviation part 39 to include an AD that would US Airways stated that Administration (FAA), Department of apply to the specified products. That accomplishment of the modification Transportation (DOT). NPRM was published in the Federal specified in Airbus Mandatory Service ACTION: Final rule. Register on December 15, 2011 (76 FR Bulletin A320–28–1162, Revision 02, 77934), and proposed to supersede AD dated December 18, 2009, will take 14.5 SUMMARY: We are superseding an 2005–23–02, Amendment 39–14360 (70 man-hours per fuel tank. We infer that existing airworthiness directive (AD) for FR 69067, November 14, 2005). That the commenter wants the preamble certain Airbus Model A319–111, –112, NPRM proposed to correct an unsafe section of the final rule changed to –113, –114, –115, –131, –132, and –133 condition for the specified products. reflect 14.5 work-hours per fuel tank. airplanes; Model A320–111, –211, –212, The MCAI states: We agree. The total work-hours for –214, –231, –232, and –233 airplanes; accessing, modifying a fuel tank, and and Model A321–111, –112, and –131 Following an automatic ACT fuel transfer failure on an A319, it was noted that the ACT closing are estimated at 14.5 work-hours airplanes; equipped with an additional manhole cover seals were extruded, allowing per fuel tank. We have changed the cost center tank (ACT). That AD currently leakage. section in the final rule to reflect an requires identifying the part number of This condition, if not corrected, can lead estimate of 15 work-hours per fuel tank the ACT and, for certain ACTs, to fuel and/or vapour leakage, possibly to comply with the new basic replacing the outer ACT manhole cover resulting in a combustible fuel vapour/air requirements of this AD. We have also and seal. This new AD requires mixture in the cargo compartment, which revised the estimated cost of the AD on modifying certain ACTs by replacing the would constitute a fire risk. U.S. operators to be $919,275 (based on manhole seal with a new seal; adding DGAC France AD F–2004–038 [which corresponds to FAA AD 2005–23–02] was one fuel tank per airplane), or $1,275 certain ACT equipped airplanes to the issued to require the replacement of the ACT per fuel tank. applicability; and removing Model manhole cover and its seal in accordance A320–111 airplanes from the with SB A320–28–1105, but this Request To Revise the Parts Cost applicability. This AD was prompted by modification has proved not to be fully Statement reports that the modification required effective. Therefore, it is necessary to replace US Airways requested we revise the the seal material and to change the by the current AD was not fully parts cost statement of the NPRM (76 FR effective. We are issuing this AD to installation process in order to prevent such seal deformation and possibility of leakage. 77934, December 15, 2011) to include prevent fuel and/or vapor leakage, For the reasons described above, this the parts cost for the actions required by which could result in a combustible fuel [EASA] AD supersedes DGAC France AD F– AD 2005–23–02, Amendment 39–14360 vapor/air mixture in the cargo 2004–038 (EASA approval 2004–2110) and (70 FR 69067, November 14, 2005) and compartment, and consequent fire risk. requires the replacement of the existing that are retained in the NPRM. The DATES: This AD becomes effective June manhole seal with a new seal. commenter stated that the parts costs 21, 2012. This AD also adds certain ACT are not covered under warranty. The Director of the Federal Register equipped airplanes, produced after AD We partially agree. Airbus Service approved the incorporation by reference 2005–23–02, Amendment 39–14360 (70 Bulletin A320–28–1105, Revision 02, of a certain publication listed in this AD FR 69067, November 14, 2005) was dated March 11, 2005, states that Airbus as of June 21, 2012. issued, to the applicability. This AD will provide the material at no charge

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for orders placed before December 31, Conclusion General requirements.’’ Under that 2003. Therefore, we agree that some We reviewed the available data, section, Congress charges the FAA with operators may have had to pay for parts. including the comments received, and promoting safe flight of civil aircraft in We do not agree to add parts costs to determined that air safety and the air commerce by prescribing regulations this final rule, but we have added a public interest require adopting the AD for practices, methods, and procedures statement to the cost section for actions as proposed, except for minor editorial the Administrator finds necessary for that are required by AD 2005–23–02, changes and/or changes to the cost safety in air commerce. This regulation Amendment 39–14360 (70 FR 69067, section that add the accessing and is within the scope of that authority November 14, 2005) and retained in this closing costs. We have determined that because it addresses an unsafe condition AD. Where the service information lists these minor changes: that is likely to exist or develop on required parts costs that are covered • Are consistent with the intent that products identified in this rulemaking under warranty, we have assumed that was proposed in the NPRM (76 FR action. there will be no charge for these parts. 77934, December 15, 2011) for As we do not control warranty coverage Regulatory Findings correcting the unsafe condition; and for affected parties, some parties may • Do not add any additional burden We determined that this AD will not incur costs higher than estimated here. upon the public than was already have federalism implications under Request To Allow Seal Replacement proposed in the NPRM (76 FR 77934, Executive Order 13132. This AD will Without ACT Removal December 15, 2011). not have a substantial direct effect on the States, on the relationship between US Airways requested the NPRM (76 Costs of Compliance the national government and the States, FR 77934, December 15, 2011) be or on the distribution of power and changed to allow installation of the Based on the service information, we estimate that this AD affects 721 responsibilities among the various seals without removing the ACTs from levels of government. the airplane as specified in AD 2005– products of U.S. registry. 23–02, Amendment 39–14360 (70 FR The actions that are required by AD For the reasons discussed above, I 69067, November 14, 2005). The 2005–23–02, Amendment 39–14360 (70 certify that this regulation: commenter stated that in order to FR 69067, November 14, 2005) and 1. Is not a ‘‘significant regulatory replace the seal on ACT number 2, only retained in this AD take about 1 work- action’’ under Executive Order 12866; the integrated impact wall needs to be hour per product, at an average labor 2. Is not a ‘‘significant rule’’ under the removed; and for seal replacement on rate of $85 per work hour. Required DOT Regulatory Policies and Procedures ACT number 1, the ACT number 2 has parts cost about $0 per product. Where (44 FR 11034, February 26, 1979); to be rolled rearward approximately two the service information lists required 3. Will not affect intrastate aviation in feet to provide access to ACT number 1, parts costs that are covered under Alaska; and warranty, we have assumed that there which can then have its seal replaced 4. Will not have a significant without ACT removal. The commenter will be no charge for these parts. As we do not control warranty coverage for economic impact, positive or negative, provided references to its internal on a substantial number of small entities documentation to support its request. affected parties, some parties may incur costs higher than estimated here. Based under the criteria of the Regulatory We disagree. US Airways request does Flexibility Act. not substantiate the detailed procedures on these figures, the estimated cost of We prepared a regulatory evaluation needed for deviation from the Airbus the currently required actions is $85 per of the estimated costs to comply with recommended actions specified in product. this AD and placed it in the AD docket. Airbus Mandatory Service Bulletin We estimate that it would take about A320–28–1162, Revision 02, dated 15 work-hours per fuel tank to comply Examining the AD Docket December 18, 2009, for installation of with the new basic requirements of this seals on the ACT number 1 and ACT AD. The average labor rate is $85 per You may examine the AD docket on number 2. In addition, Airbus foresees work-hour. Where the service the Internet at http:// a potential safety hazard for mechanics information lists required parts costs www.regulations.gov; or in person at the if seals are installed without removing that are covered under warranty, we Docket Operations office between 9 a.m. the ACTs due to inadequate ventilation have assumed that there will be no and 5 p.m., Monday through Friday, and high concentration of fuel vapor. charge for these parts. As we do not except Federal holidays. The AD docket Under the provisions of paragraph (l) control warranty coverage for affected contains the NPRM (76 FR 77934, of this AD, we will consider requests for parties, some parties may incur costs December 15, 2011), the regulatory approval of alternate method of higher than estimated here. Based on evaluation, any comments received, and compliance (AMOC) if sufficient data these figures, we estimate the cost of the other information. The street address for are submitted to substantiate that AD on U.S. operators to be $919,275, or the Docket Operations office (telephone deviation from the specified procedures $1,275 per fuel tank. (800) 647–5527) is in the ADDRESSES section. Comments will be available in in Airbus Mandatory Service Bulletin Authority for This Rulemaking A320–28–1162, Revision 02, dated the AD docket shortly after receipt. December 18, 2009, would provide an Title 49 of the United States Code List of Subjects in 14 CFR Part 39 acceptable level of safety. We have not specifies the FAA’s authority to issue changed the AD in this regard. rules on aviation safety. Subtitle I, Air transportation, Aircraft, Aviation section 106, describes the authority of safety, Incorporation by reference, Explanation of Additional Changes the FAA Administrator. ‘‘Subtitle VII: Safety. Made to the AD Aviation Programs,’’ describes in more Adoption of the Amendment We have revised the heading for detail the scope of the Agency’s paragraph (k) of this AD and the authority. Accordingly, under the authority wording in paragraphs (h) and (k) of this We are issuing this rulemaking under delegated to me by the Administrator, AD; these changes have not changed the the authority described in ‘‘Subtitle VII, the FAA amends 14 CFR part 39 as intent of those paragraphs. Part A, Subpart III, Section 44701: follows:

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PART 39—AIRWORTHINESS 2012–09–12 Airbus: Amendment 39–17047. AD; certificated in any category; all serial DIRECTIVES Docket No. FAA–2011–1321; Directorate numbers; if equipped with one or more Identifier 2011–NM–045–AD. additional center tank(s) (ACT) with a part ■ 1. The authority citation for part 39 (a) Effective Date number (P/N) listed in table 1 of this AD. This AD does not apply to airplanes already continues to read as follows: This airworthiness directive (AD) becomes effective June 21, 2012. having received Airbus modification 38036 Authority: 49 U.S.C. 106(g), 40113, 44701. in production. (b) Affected ADs § 39.13 [Amended] (1) Model A319–111, –112, –113, –114, This AD supersedes AD 2005–23–02, –115, –131, –132, and –133 airplanes. ■ 2. The FAA amends § 39.13 by Amendment 39–14360 (70 FR 69067, (2) Model A320–211, –212, –214, –231, removing airworthiness directive (AD) November 14, 2005). –232, and –233 airplanes. 2005–23–02, Amendment 39–14360 (70 (c) Applicability (3) Model A321–111, –112, –131, –211, FR 69067, November 14, 2005), and This AD applies to Airbus airplanes listed –212, –213, –231, and –232 airplanes. adding the following new AD: in paragraphs (c)(1), (c)(2), and (c)(3) of this

TABLE 1—AFFECTED ACT PART NUMBERS FOR APPLICABILITY

D2827091100000 D2827105100200 D2827105300600 D2827105500400 D2827091100200 D2827105100400 D2827105300800 D2827105500600 D2827091100400 D2827105100600 D2827105400000 D2827105500800 D2827091100600 D2827105100800 D2827105400200 D2827105600000 D2827091100800 D2827105200000 D2827105400400 D2827105600200 D2827091101000 D2827105200200 D2827105400600 D2827105600400 D2827091300000 D2827105200400 D2827105400800 D2827105600600 D2827091300200 D2827105200600 D2827105401000 D2827105600800 D2827091300400 D2827105200800 D2827105401200 D2827107500000 D2827091300600 D2827105300000 D2827105401400 D2827107500200 D2827091300800 D2827105300200 D2827105500000 D2827107500400 D2827105100000 D2827105300400 D2827105500200 D2827107500600

(d) Subject (f) Compliance –115, –131, –132, and –133 airplanes) or 12 Air Transport Association (ATA) of You are responsible for having the actions months (for Model A320–211, –212, –214, America Code 28, Fuel. required by this AD performed within the –231, –232, and –233 airplanes; and Model compliance times specified, unless the A321–111, –112, and –131 airplanes) after (e) Reason actions have already been done. December 19, 2005 (the effective date of AD This AD was prompted by reports that the (g) Retained Determination of Part Number 2005–23–02, Amendment 39–14360 (70 FR modification required by AD 2005–23–02, 69067, November 14, 2005): Determine Amendment 39–14360 (70 FR 69067, With New Sealing Procedures whether the P/N of each ACT installed on the November 14, 2005), was not fully effective. This paragraph restates the requirements of We are issuing this AD to prevent fuel and/ paragraph (f) of AD 2005–23–02, Amendment airplane is included in table 2 of this AD. If or vapor leakage, which could result in a 39–14350 (70 FR 69067, November 14, 2005), no ACT installed on the airplane has a P/N combustible fuel vapor/air mixture in the with new sealing procedures. Within 30 days included in table 2 of this AD, no further cargo compartment, and consequent fire risk. (for Model A319–111, –112, –113, –114, work is required by this paragraph.

TABLE 2—AFFECTED ACT P/NS FOR AD 2005–23–02, AMENDMENT 39–14360 [70 FR 69067, November 14, 2005]

D2827091100000 D2827105100200 D2827105300400 D2827105500200 D2827091100200 D2827105100400 D2827105400000 D2827105500400 D2827091100600 D2827105200000 D2827105400200 D2827105600000 D2827091300000 D2827105200200 D2827105400400 D2827105600200 D2827091300200 D2827105200400 D2827105400600 D2827105600400 D2827091300400 D2827105300000 D2827105400800 D2827107500000 D2827105100000 D2827105300200 D2827105500000 D2827107500200

(h) Retained Manhole Cover/Seal further flight, replace the outer ACT manhole replacement required by paragraph (i) of this Replacement cover with a reinforced manhole cover and AD, terminates the manhole cover seal This paragraph restates the requirements of replace the outer manhole cover seal with a replacement required by this paragraph. new seal, in accordance with the paragraph (g) of AD 2005–23–02, (i) ACT Modification Amendment 39–14350 (70 FR 69067, Accomplishment Instructions of Airbus November 14, 2005). Within 30 days (for Service Bulletin A320–28–1105, Revision 02, Within 3,000 flight cycles or 24 months, Model A319–111, –112, –113, –114, –115, dated March 11, 2005. This paragraph whichever occurs first after the effective date –131, –132, and –133 airplanes) or 12 months provides credit for the replacements required of this AD: Modify the affected ACT listed in (for Model A320–211, –212, –214, –231, by this paragraph if the replacements were table 1 of this AD by replacing the manhole –232, and –233 airplanes; and Model A321– performed before December 19, 2005, using seal, in accordance with the Accomplishment 111, –112, and –131 airplanes) after Airbus Service Bulletin A320–28–1105, Instructions of Airbus Mandatory Service December 19, 2005 (the effective date of AD Revision 01, dated March 18, 2003; and Bulletin A320–28–1162, Revision 02, dated 2005–23–02, Amendment 39–14360 (70 FR Airbus Service Bulletin A320–28–1105, December 18, 2009. Accomplishing the 69067, November 14, 2005)): For each ACT dated October 22, 2002. As of the effective manhole cover sealing replacement specified P/N listed in table 2 of this AD: Before date of this AD, doing the manhole cover seal in this paragraph terminates the manhole

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cover sealing replacement required in 552(a) and 1 CFR part 51 on the date dowel pin bushes retaining the lower paragraph (h) of this AD. specified. steering flange. This AD requires (2) The following service information was (j) Parts Installation modifying the NLG main fitting by approved for IBR as of the effective date of adding primer paint to the cadmium As of the effective date of this AD, no this AD: person may install an ACT, having a part (i) Airbus Mandatory Service Bulletin around the dowel bush holes. We are number is listed in table 1 of this AD, on any A320–28–1162, Revision 02, dated December issuing this AD to prevent NLG main airplane unless it has been modified prior to 18, 2009. fitting rupture, which could result in an its installation, in accordance with Airbus (3) The following service information was NLG collapse. Mandatory Service Bulletin A320–28–1162, approved for IBR on December 19, 2005 (70 DATES: This AD becomes effective June Revision 02, dated December 18, 2009. FR 69067, November 14, 2005): (i) Airbus Service Bulletin A320–28–1105, 21, 2012. (k) Credit for Previous Actions Revision 02, dated March 11, 2005. The Director of the Federal Register This paragraph provides credit for the (4) For Airbus service information approved the incorporation by reference modification required by paragraph (i) of this identified in this AD, contact Airbus, of certain publications listed in this AD AD, if the modification was performed before Airworthiness Office—EAS, 1 Rond Point as of June 21, 2012. Maurice Bellonte, 31707 Blagnac Cedex, the effective date of this AD using Airbus ADDRESSES: You may examine the AD France; telephone +33 5 61 93 36 96; fax +33 Mandatory Service Bulletin A320–28–1162, docket on the Internet at http:// dated February 6, 2008; or Revision 01, dated 5 61 93 44 51; email: account.airworth- July 16, 2008. [email protected]; Internet http:// www.regulations.gov or in person at the www.airbus.com. U.S. Department of Transportation, (l) Other FAA AD Provisions (5) You may review copies of the service Docket Operations, M–30, West The following provisions also apply to this information at the FAA, Transport Airplane Building Ground Floor, Room W12–140, AD: Directorate, 1601 Lind Avenue SW., Renton, 1200 New Jersey Avenue SE., (1) Alternative Methods of Compliance Washington. For information on the Washington, DC. (AMOCs): The Manager, International availability of this material at the FAA, call Branch, ANM–116, Transport Airplane 425–227–1221. FOR FURTHER INFORMATION CONTACT: Directorate, FAA, has the authority to (6) You may also review copies of the Vladimir Ulyanov, Aerospace Engineer, approve AMOCs for this AD, if requested service information that is incorporated by International Branch, ANM–116, using the procedures found in 14 CFR 39.19. reference at the National Archives and Transport Airplane Directorate, FAA, In accordance with 14 CFR 39.19, send your Records Administration (NARA). For 1601 Lind Avenue SW., Renton, request to your principal inspector or local information on the availability of this Washington 98057–3356; telephone Flight Standards District Office, as material at an NARA facility, call 202–741– 425–227–1138; fax 425–227–1149. appropriate. If sending information directly 6030, or go to http://www.archives.gov/ to the International Branch, send it to ATTN: federal_register/code_of_federal_regulations/ SUPPLEMENTARY INFORMATION: _ Sanjay Ralhan, Aerospace Engineer, ibr locations.html. Discussion International Branch, ANM–116, Transport Issued in Renton, Washington, on May 1, Airplane Directorate, FAA, 1601 Lind 2012. We issued a notice of proposed Avenue SW., Renton, Washington 98057– rulemaking (NPRM) to amend 14 CFR Michael Kaszycki, 3356; telephone (425) 227–1405; fax (425) part 39 to include an AD that would 227–1149. Information may be emailed to: Acting Manager, Transport Airplane apply to the specified products. That Directorate, Aircraft Certification Service. [email protected]. NPRM was published in the Federal Before using any approved AMOC, notify [FR Doc. 2012–11490 Filed 5–16–12; 8:45 am] Register on December 29, 2011 (76 FR your appropriate principal inspector, or BILLING CODE 4910–13–P lacking a principal inspector, the manager of 81884). That NPRM proposed to correct the local flight standards district office/ an unsafe condition for the specified products. The MCAI states: certificate holding district office. The AMOC DEPARTMENT OF TRANSPORTATION approval letter must specifically reference Corrosion has been found on the main this AD. Federal Aviation Administration fitting of the NLG leg in the vicinity of the (2) Airworthy Product: For any requirement dowel pin bushes retaining the lower steering in this AD to obtain corrective actions from 14 CFR Part 39 flange on A330/A340 aeroplanes. The a manufacturer or other source, use these majority of parts have been reworked and actions if they are FAA-approved. Corrective [Docket No. FAA–2011–1327; Directorate returned to service. actions are considered FAA-approved if they Identifier 2011–NM–091–AD; Amendment This corrosion, if not avoided, could lead are approved by the State of Design Authority 39–17048; AD 2012–09–13] to the NLG main fitting rupture, possibly (or their delegated agent). You are required resulting in a NLG collapse, which would RIN 2120–AA64 to assure the product is airworthy before it constitute an unsafe condition. is returned to service. In order to maintain the structural integrity Airworthiness Directives; Airbus (m) Related Information of the NLG, this [EASA] AD requires the Airplanes accomplishment of a modification which Refer to MCAI European Aviation Safety consists in adding primer paint to the Agency (EASA) Airworthiness Directive AGENCY: Federal Aviation Administration (FAA), Department of cadmium around the dowel bush holes on 2010–0177, dated August 30, 2010; Airbus the main fitting, in order to provide further Mandatory Service Bulletin A320–28–1162, Transportation (DOT). protection against cadmium degradation. Revision 02, dated December 18, 2009; and ACTION: Final rule. Airbus Service Bulletin A320–28–1105, You may obtain further information Revision 02, dated March 11, 2005; for SUMMARY: We are adopting a new by examining the MCAI in the AD related information. airworthiness directive (AD) for certain docket. Airbus Model A330–200 freighter series (n) Material Incorporated by Reference Comments airplanes; Model A330–200 and –300 (1) You must use the following service information to do the actions required by this series airplanes; and Model A340–200 We gave the public the opportunity to AD, unless the AD specifies otherwise. The and –300 series airplanes. This AD was participate in developing this AD. We Director of the Federal Register approved the prompted by a report of corrosion found received no comments on the NPRM (76 incorporation by reference (IBR) of the on the main fitting of the nose landing FR 81884, December 29, 2011) or on the following service information under 5 U.S.C. gear (NLG) leg in the vicinity of the determination of the cost to the public.

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Changes to the AD Authority for This Rulemaking List of Subjects in 14 CFR Part 39 Airbus has issued Mandatory Service Title 49 of the United States Code Air transportation, Aircraft, Aviation Bulletins A330–32–3241 and A340–32– specifies the FAA’s authority to issue safety, Incorporation by reference, 4282, both Revision 01, both including rules on aviation safety. Subtitle I, Safety. Appendix 01, both dated October 6, section 106, describes the authority of Adoption of the Amendment 2011, which correct certain aircraft the FAA Administrator. ‘‘Subtitle VII: Aviation Programs,’’ describes in more Accordingly, under the authority maintenance manual references. We delegated to me by the Administrator, referred to Airbus Mandatory Service detail the scope of the Agency’s authority. the FAA amends 14 CFR part 39 as Bulletins A330–32–3241 and A340–32– follows: 4282, both dated November 26, 2010, as We are issuing this rulemaking under the authority described in ‘‘Subtitle VII, the appropriate sources of service PART 39—AIRWORTHINESS Part A, Subpart III, Section 44701: information for doing the actions DIRECTIVES specified in the NPRM (76 FR 81884, General requirements.’’ Under that December 29, 2011). We have updated section, Congress charges the FAA with ■ 1. The authority citation for part 39 paragraphs (g) and (j) of this AD to refer promoting safe flight of civil aircraft in continues to read as follows: air commerce by prescribing regulations to Airbus Mandatory Service Bulletins Authority: 49 U.S.C. 106(g), 40113, 44701. A330–32–3241 and A340–32–4282, both for practices, methods, and procedures Revision 01, both including Appendix the Administrator finds necessary for § 39.13 [Amended] 01, both dated October 6, 2011. We have safety in air commerce. This regulation ■ 2. The FAA amends § 39.13 by adding also added new paragraph (h) to this AD is within the scope of that authority the following new AD: because it addresses an unsafe condition to give credit for actions done before the 2012–09–13 Airbus: Amendment 39–17048. effective date of this AD in accordance that is likely to exist or develop on products identified in this rulemaking Docket No. FAA–2011–1327, Directorate with Airbus Mandatory Service Identifier 2011–NM–091–AD. Bulletins A330–32–3241 and A340–32– action. (a) Effective Date 4282, both dated November 26, 2010, Regulatory Findings and updated subsequent paragraph This airworthiness directive (AD) becomes identifiers accordingly. We determined that this AD will not effective June 21, 2012. have federalism implications under (b) Affected ADs We also added a reference to Model Executive Order 13132. This AD will A330–200 freighter series airplanes in not have a substantial direct effect on None. paragraphs (g) and (h) of this AD. the States, on the relationship between (c) Applicability Conclusion the national government and the States, This AD applies to Airbus Model A330– or on the distribution of power and 223F, –243F, –201, –202, –203, –223, –243, We reviewed the available data and responsibilities among the various –301, –302, –303, –321, –322, –323, –341, determined that air safety and the levels of government. –342, and –343 airplanes; and Model A340– public interest require adopting the AD For the reasons discussed above, I 211, –212, –213, –311, –312, and –313 with the changes described previously certify that this AD: airplanes; certificated in any category; all and minor editorial changes. We have 1. Is not a ‘‘significant regulatory manufacturer serial numbers, except determined that these changes: action’’ under Executive Order 12866; airplanes on which Airbus modification 200616 has been embodied in production. • Are consistent with the intent that 2. Is not a ‘‘significant rule’’ under the was proposed in the NPRM (76 FR DOT Regulatory Policies and Procedures (d) Subject 81884, December 29, 2011) for (44 FR 11034, February 26, 1979); Air Transport Association (ATA) of correcting the unsafe condition; and 3. Will not affect intrastate aviation in America Code 32: Landing gear. Alaska; and • (e) Reason Do not add any additional burden 4. Will not have a significant upon the public than was already economic impact, positive or negative, This AD was prompted by a report of corrosion found on the main fitting of the proposed in the NPRM (76 FR 81884, on a substantial number of small entities December 29, 2011). nose landing gear (NLG) leg in the vicinity under the criteria of the Regulatory of the dowel pin bushes retaining the lower Costs of Compliance Flexibility Act. steering flange. We are issuing this AD to We prepared a regulatory evaluation prevent NLG main fitting rupture, which We estimate that this AD will affect of the estimated costs to comply with could result in an NLG collapse. 55 products of U.S. registry. We also this AD and placed it in the AD docket. (f) Compliance estimate that it will take about 66 work- hours per product to comply with the Examining the AD Docket You are responsible for having the actions basic requirements of this AD. The You may examine the AD docket on required by this AD performed within the compliance times specified, unless the average labor rate is $85 per work-hour. the Internet at http:// actions have already been done Required parts will cost about $10,000 www.regulations.gov; or in person at the per product. Where the service Docket Operations office between 9 a.m. (g) Modification information lists required parts costs and 5 p.m., Monday through Friday, At the later of the times specified in that are covered under warranty, we except Federal holidays. The AD docket paragraph (g)(1), (g)(2), or (g)(3) of this AD, have assumed that there will be no contains the NPRM (76 FR 81884, as applicable: Modify the NLG main fitting charge for these parts. As we do not December 29, 2011), the regulatory by adding primer paint to the cadmium control warranty coverage for affected evaluation, any comments received, and around the dowel bush holes, in accordance with the Accomplishment Instructions of parties, some parties may incur costs other information. The street address for Airbus Mandatory Service Bulletin A330–32– higher than estimated here. Based on the Docket Operations office (telephone 3241, Revision 01, including Appendix 01, these figures, we estimate the cost of (800) 647–5527) is in the ADDRESSES dated October 6, 2011 (for Model A330–200 this AD to the U.S. operators to be section. Comments will be available in and –300 airplanes, and Model A330–200 $858,550, or $15,610 per product. the AD docket shortly after receipt. freighter series airplanes); or Airbus

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Mandatory Service Bulletin A340–32–4282, (k) Material Incorporated by Reference titanium bolts with new Inconel bolts, Revision 01, including Appendix 01, dated (1) You must use the following service and related investigative and corrective October 6, 2011 (for Model A340–200 and information to do the actions required by this actions if necessary. We are issuing this –300 airplanes). AD, unless the AD specifies otherwise. The AD to detect and correct fractured and (1) Within 60 months since first flight of Director of the Federal Register approved the missing latch pin retention bolts, which the NLG on any airplane. incorporation by reference (IBR) of the could result in potential separation of (2) Within 60 months since first flight of following service information under 5 U.S.C. the NLG on any airplane after the most recent 552(a) and 1 CFR part 51. the cargo door from the airplane and overhaul of the NLG. (i) Airbus Mandatory Service Bulletin catastrophic decompression of the (3) Within 24 months after the effective A330–32–3241, Revision 01, including airplane. date of this AD. Appendix 01, dated October 6, 2011. DATES: This AD is effective June 21, (ii) Airbus Mandatory Service Bulletin 2012. (h) Credit for Previous Actions A340–32–4282, Revision 01, including This paragraph provides credit for the Appendix 01, dated October 6, 2011. The Director of the Federal Register actions required by paragraph (g) of this AD, (2) For service information identified in approved the incorporation by reference if those actions were performed before the this AD, contact Airbus SAS—Airworthiness of a certain publication listed in the AD effective date of this AD using Airbus Office—EAL, 1 Rond Point Maurice Bellonte, as of June 21, 2012. Mandatory Service Bulletin A330–32–3241, 31707 Blagnac Cedex, France; telephone +33 ADDRESSES: For service information dated November 26, 2010 (for Model A330– 5 61 93 36 96; fax +33 5 61 93 45 80; email identified in this AD, contact Boeing 200 and –300 airplanes, and Model A330– [email protected]; Internet http://www.airbus.com. Commercial Airplanes, Attention: Data 200 freighter series airplanes); or A340–32– & Services Management, P.O. Box 3707, 4282, dated November 26, 2010 (for Model (3) You may review copies of the service A340–200 and –300 airplanes). information at the FAA, Transport Airplane MC 2H–65, Seattle, Washington 98124– Directorate, 1601 Lind Avenue SW., Renton, 2207; telephone 206–544–5000, (i) Other FAA AD Provisions Washington. For information on the extension 1; fax 206–766–5680; email The following provisions also apply to this availability of this material at the FAA, call [email protected]; Internet AD: 425–227–1221. https://www.myboeingfleet.com. You (1) Alternative Methods of Compliance (4) You may also review copies of the may review copies of the referenced (AMOCs): The Manager, International service information that is incorporated by reference at the National Archives and service information at the FAA, Branch, ANM–116, Transport Airplane Transport Airplane Directorate, 1601 Directorate, FAA, has the authority to Records Administration (NARA). For information on the availability of this Lind Avenue SW., Renton, Washington. approve AMOCs for this AD, if requested material at an NARA facility, call 202–741– For information on the availability of using the procedures found in 14 CFR 39.19. 6030, or go to http://www.archives.gov/ In accordance with 14 CFR 39.19, send your this material at the FAA, call 425–227– federal_register/code_of_federal_regulations/ request to your principal inspector or local 1221. ibr_locations.html. Flight Standards District Office, as Examining the AD Docket appropriate. If sending information directly Issued in Renton, Washington, on May 1, to the International Branch, send it to ATTN: 2012. You may examine the AD docket on Vladimir Ulyanov, Aerospace Engineer, Michael Kaszycki, the Internet at http:// International Branch, ANM–116, Transport Acting Manager, Transport Airplane www.regulations.gov; or in person at the Airplane Directorate, FAA, 1601 Lind Directorate, Aircraft Certification Service. Docket Management Facility between Avenue SW., Renton, Washington 98057– [FR Doc. 2012–11492 Filed 5–16–12; 8:45 am] 9 a.m. and 5 p.m., Monday through 3356; telephone 425–227–1138; fax 425–227– BILLING CODE 4910–13–P Friday, except Federal holidays. The AD 1149. Information may be emailed to: docket contains this AD, the regulatory [email protected]. Before using any approved AMOC, notify evaluation, any comments received, and your appropriate principal inspector, or DEPARTMENT OF TRANSPORTATION other information. The address for the lacking a principal inspector, the manager of Docket Office (phone: 800–647–5527) is the local flight standards district office/ Federal Aviation Administration Document Management Facility, U.S. certificate holding district office. The AMOC Department of Transportation, Docket approval letter must specifically reference 14 CFR Part 39 Operations, M–30, West Building this AD. [Docket No. FAA–2012–0105; Directorate Ground Floor, Room W12–140, 1200 (2) Airworthy Product: For any requirement Identifier 2011–NM–123–AD; Amendment New Jersey Avenue SE., Washington, in this AD to obtain corrective actions from 39–17049; AD 2012–09–14] DC 20590. a manufacturer or other source, use these actions if they are FAA-approved. Corrective RIN 2120–AA64 FOR FURTHER INFORMATION CONTACT: Ana actions are considered FAA-approved if they Martinez Hueto, Aerospace Engineer, are approved by the State of Design Authority Airworthiness Directives; The Boeing Cabin Safety and Environmental (or their delegated agent). You are required Company Airplanes Systems Branch, ANM–150S, FAA, to assure the product is airworthy before it Seattle Aircraft Certification Office, is returned to service. AGENCY: Federal Aviation 1601 Lind Avenue SW., Renton, WA Administration (FAA), DOT. (j) Related Information 98057–3356; phone: 425–917–6592; fax: ACTION: Final rule. 425–917–6590; email: Refer to MCAI European Aviation Safety [email protected]. Agency (EASA) Airworthiness Directive SUMMARY: We are adopting a new 2011–0032, dated March 1, 2011, and the airworthiness directive (AD) for certain SUPPLEMENTARY INFORMATION: service information specified in paragraphs The Boeing Company Model 777 (j)(1) and (j)(2) of this AD, for related airplanes. This AD was prompted by Discussion information. reports of fractured and missing latch We issued a notice of proposed (1) Airbus Mandatory Service Bulletin A330–32–3241, Revision 01, including pin retention bolts that secure the latch rulemaking (NPRM) to amend 14 CFR Appendix 01, dated October 6, 2011. pins on the forward cargo door. This AD part 39 to include an AD that would (2) Airbus Mandatory Service Bulletin requires repetitive detailed inspections apply to the specified products. That A340–32–4282, Revision 01, including for fractured or missing latch pin NPRM published in the Federal Appendix 01, dated October 6, 2011. retention bolts, replacement of existing Register on February 8, 2012 (77 FR

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6522). That NPRM proposed to require have considered the comments received. Costs of Compliance repetitive detailed inspections for Boeing and American Airlines support fractured or missing latch pin retention the NPRM (77 FR 6522, February 8, We estimate that this AD affects 148 bolts, replacement of existing titanium 2012). airplanes of U.S. registry. bolts with new Inconel bolts, and Conclusion We estimate the following costs to related investigative and corrective comply with this AD: actions if necessary. We reviewed the relevant data, considered the comments received, and Comments determined that air safety and the We gave the public the opportunity to public interest require adopting the AD participate in developing this AD. We as proposed.

ESTIMATED COSTS

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

Inspection ...... 1 work-hour × $85 per hour = $85 ...... $0 $85 $12,580

We estimate the following costs to do required based on the results of the determining the number of aircraft that any necessary repairs that would be inspection. We have no way of might need these repairs:

ON-CONDITION COSTS

Cost per Action Labor cost Parts cost product

Cross-bolt replacement ...... 2 work-hours × $85 per hour = $170 ...... $50 $220

Authority for This Rulemaking (1) Is not a ‘‘significant regulatory (a) Effective Date action’’ under Executive Order 12866, This AD is effective June 21, 2012. Title 49 of the United States Code (2) Is not a ‘‘significant rule’’ under specifies the FAA’s authority to issue DOT Regulatory Policies and Procedures (b) Affected ADs rules on aviation safety. Subtitle I, (44 FR 11034, February 26, 1979), None. section 106, describes the authority of (3) Will not affect intrastate aviation (c) Applicability the FAA Administrator. Subtitle VII: in Alaska, and Aviation Programs, describes in more This AD applies to The Boeing Company (4) Will not have a significant Model 777–200, –200LR, –300, –300ER, and detail the scope of the Agency’s economic impact, positive or negative, 777F series airplanes; certificated in any authority. on a substantial number of small entities category; as identified in Boeing Alert We are issuing this rulemaking under under the criteria of the Regulatory Service Bulletin 777–52A0038, Revision 1, the authority described in Subtitle VII, Flexibility Act. dated June 24, 2010. Part A, Subpart III, Section 44701: List of Subjects in 14 CFR Part 39 (d) Subject ‘‘General requirements.’’ Under that Joint Aircraft System Component (JASC)/ section, Congress charges the FAA with Air transportation, Aircraft, Aviation safety, Incorporation by reference, Air Transport Association (ATA) of America promoting safe flight of civil aircraft in Code 52, Doors. air commerce by prescribing regulations Safety. (e) Unsafe Condition for practices, methods, and procedures Adoption of the Amendment the Administrator finds necessary for This AD was prompted by reports of Accordingly, under the authority safety in air commerce. This regulation fractured and missing latch pin retention delegated to me by the Administrator, is within the scope of that authority bolts that secure the latch pins on the the FAA amends 14 CFR part 39 as forward cargo door. We are issuing this AD because it addresses an unsafe condition follows: to detect and correct fractured and missing that is likely to exist or develop on latch pin retention bolts, which could result products identified in this rulemaking PART 39—AIRWORTHINESS in potential separation of the cargo door from action. DIRECTIVES the airplane and catastrophic decompression of the airplane. Regulatory Findings ■ 1. The authority citation for part 39 (f) Compliance This AD will not have federalism continues to read as follows: Comply with this AD within the implications under Executive Order Authority: 49 U.S.C. 106(g), 40113, 44701. compliance times specified, unless already 13132. This AD will not have a done. substantial direct effect on the States, on § 39.13 [Amended] (g) Inspect Retention Bolt of Latch Pin the relationship between the national ■ 2. The FAA amends § 39.13 by adding Fittings No. 1 Through No. 8 government and the States, or on the the following new airworthiness At the applicable times specified in distribution of power and directive (AD): responsibilities among the various paragraph 1.E., ‘‘Compliance,’’ of Boeing levels of government. 2012–09–14 The Boeing Company: Alert Service Bulletin 777–52A0038, Amendment 39–17049; Docket No. Revision 1, dated June 24, 2010, except as For the reasons discussed above, I FAA–2012–0105; Directorate Identifier specified in paragraph (i) of this AD: Do a certify that this AD: 2011–NM–123–AD. detailed inspection for fractured and/or

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missing latch pin retention bolts of the latch (l) Related Information 58 and G58 airplanes. This AD was pin fittings of the lower sill of the forward For more information about this AD, prompted by installation of oversized large cargo door, and do all applicable related contact Ana Martinez Hueto, Aerospace clamps on fuel vapor return and/or fuel investigative and corrective actions, in Engineer, Cabin Safety and Environmental vent lines in the outboard sections of accordance with the Accomplishment Systems Branch, ANM–150S, FAA, Seattle the left and right wings. This AD Instructions of Boeing Alert Service Bulletin Aircraft Certification Office, 1601 Lind requires inspecting for oversized or 777–52A0038, Revision 1, dated June 24, Avenue SW., Renton, WA 98057–3356; 2010, except as provided by paragraph (h) of deformed fuel hose clamps and phone: 425–917–6592; fax: 425–917–6590; replacing as necessary. We are issuing this AD. Do all applicable related email: [email protected]. investigative and corrective actions at the this AD to correct the unsafe condition applicable times specified in paragraph 1.E., (m) Material Incorporated by Reference on these products. ‘‘Compliance,’’ of Boeing Alert Service (1) You must use the following service DATES: This AD is effective June 21, Bulletin 777–52A0038, Revision 1, dated information to do the actions required by this 2012. June 24, 2010. Repeat the inspection AD, unless the AD specifies otherwise. The The Director of the Federal Register thereafter at the applicable time specified in Director of the Federal Register approved the approved the incorporation by reference paragraph 1.E., ‘‘Compliance,’’ of Boeing incorporation by reference (IBR) of the of a certain publication listed in the AD following service information under 5 U.S.C. Alert Service Bulletin 777–52A0038, as of June 21, 2012. Revision 1, dated June 24, 2010, except as 552(a) and 1 CFR part 51 of the following ADDRESSES: For service information specified in paragraph (j) of this AD. service information: (i) Boeing Alert Service Bulletin 777– identified in this AD, contact Hawker (h) Repair 52A0038, Revision 1, dated June 24, 2010. Beechcraft Corporation, B091–A04, If any cut, crack, or damage is found during (2) For service information identified in 10511 E. Central Ave., Wichita, Kansas any inspection required by this AD, and this AD, contact Boeing Commercial 67206; telephone: (800) 429–5372 or Boeing Alert Service Bulletin 777–52A0038, Airplanes, Attention: Data & Services (316) 676–3140; fax: (316) 676–8027; Revision 1, dated June 24, 2010, specifies to Management, P.O. Box 3707, MC 2H–65, email: [email protected]; or Seattle, Washington 98124–2207; telephone contact Boeing for appropriate action: Before 206–544–5000, extension 1; fax 206–766– Internet: http:// further flight, repair the cut, crack, or damage 5680; email [email protected]; Internet www.hawkerbeechcraft.com/ in accordance with a method approved by https://www.myboeingfleet.com. customer_support/ the Manager, Seattle, Aircraft Certification (3) You may review copies of the technical_and_field_support/. You may Office (ACO), FAA. For a repair method to referenced service information at the FAA, review copies of the referenced service be approved, the repair must meet the Transport Airplane Directorate, 1601 Lind information at the FAA, Small Airplane certification basis of the airplane, and the Avenue SW., Renton, Washington. For approval must specifically refer to this AD. Directorate, 901 Locust, Kansas City, information on the availability of this Missouri 64106. For information on the (i) Exception to Compliance Time material at the FAA, call 425–227–1221. availability of this material at the FAA, (4) You may also review copies of the Where Boeing Alert Service Bulletin 777– service information that is incorporated by call (816) 329–4148. 52A0038, Revision 1, dated June 24, 2010, reference at the National Archives and Examining the AD Docket specifies a compliance time after the date on Records Administration (NARA). For that service bulletin, this AD requires information on the availability of this You may examine the AD docket on compliance within the specified compliance material at NARA, call 202–741–6030, or go the Internet at http:// time after the effective date of this AD. to: http://www.archives.gov/federal-register/ www.regulations.gov; or in person at the (j) Optional Terminating Action for cfr/ibr-locations.html. Docket Management Facility between Repetitive Inspections Issued in Renton, Washington, on May 4, 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD Replacing latch pin retention bolts made of 2012. titanium with new Inconel bolts, in Michael Kaszycki, docket contains this AD, the regulatory accordance with the Accomplishment Acting Manager, Transport Airplane evaluation, any comments received, and Instructions of Boeing Alert Service Bulletin Directorate, Aircraft Certification Service. other information. The address for the 777–52A0038, Revision 1, dated June 24, [FR Doc. 2012–11463 Filed 5–16–12; 8:45 am] Docket Office (phone: 800–647–5527) is Document Management Facility, U.S. 2010, terminates the repetitive inspections BILLING CODE 4910–13–P required by paragraph (g) of this AD at Department of Transportation, Docket Stations 509.10, 522.75, 537.50, 554.30, Operations, M–30, West Building 562.90, 579.70, 591.25, and 604.90, latch pin DEPARTMENT OF TRANSPORTATION Ground Floor, Room W12–140, 1200 fittings No. 1 through No. 8. New Jersey Avenue SE., Washington, (k) Alternative Methods of Compliance Federal Aviation Administration DC 20590. (AMOCs) FOR FURTHER INFORMATION CONTACT: (1) The Manager, Seattle ACO, has the 14 CFR Part 39 Thomas Teplik, Aerospace Engineer, Wichita Aircraft Certification Office, authority to approve AMOCs for this AD, if [Docket No. FAA–2012–0218; Directorate requested using the procedures found in 14 Identifier 2012–CE–003–AD; Amendment FAA, 1801 Airport Road, Room 100, CFR 39.19. In accordance with 14 CFR 39.19, 39–17051; AD 2012–10–02] Wichita, Kansas 67209; phone: (316) send your request to your principal inspector 946–4196; fax: (316) 329–4090; email: or local Flight Standards District Office, as RIN 2120–AA64 [email protected]. appropriate. If sending information directly SUPPLEMENTARY INFORMATION: to the manager of the ACO, send it to the Airworthiness Directives; Hawker attention of the person identified in the Beechcraft Corporation Airplanes Discussion Related Information section of this AD. AGENCY We issued a notice of proposed Information may be emailed to: 9-ANM- : Federal Aviation [email protected]. Administration (FAA), DOT. rulemaking (NPRM) to amend 14 CFR (2) Before using any approved AMOC, ACTION: Final rule. part 39 to include an AD that would notify your appropriate principal inspector, apply to the specified products. That or lacking a principal inspector, the manager SUMMARY: We are adopting a new NPRM published in the Federal of the local flight standards district office/ airworthiness directive (AD) for certain Register on March 2, 2012 (77 FR certificate holding district office. Hawker Beechcraft Corporation Models 12757). That NPRM proposed to require

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inspection for oversized or deformed Comments • Are consistent with the intent that fuel hose clamps and replacement as We gave the public the opportunity to was proposed in the NPRM (77 FR necessary because of reports we have participate in developing this AD. We 12757, March 2, 2012) for correcting the received of installation of oversized received no comments on the NPRM or unsafe condition; and • clamps on fuel vapor return and/or fuel on the determination of the cost to the Do not add any additional burden vent lines in the outboard sections of public. upon the public than was already the left and right wings. This condition, proposed in the NPRM (77 FR 12757, Conclusion if not corrected, could result in leakage March 2, 2012). We reviewed the relevant data and of fuel or vapor in areas where electrical Costs of Compliance wiring and other potential ignition determined that air safety and the sources are present, which could lead to public interest require adopting the AD We estimate that this AD affects 244 an inflight fire. as proposed except for minor editorial airplanes of U.S. registry. changes. We have determined that these We estimate the following costs to minor changes: comply with this AD:

ESTIMATED COSTS

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

Defueling, inspection of the fuel hose 3.5 work-hours × $85 per hour = Not applicable ...... $297.50 $72,590 clamps, and refueling. $297.50.

We estimate the following costs to do be required based on the results of the determining the number of aircraft that any necessary replacements that would inspection. We have no way of might need these replacements:

ON-CONDITION COSTS

Cost per prod- Action Labor cost Parts cost uct

Replacement of fuel hose clamps (Cost represents re- 3 work-hours × $85 per hour = $255 ...... $20 $275 placement of a maximum of 20 clamps depending on airplane configuration).

According to the manufacturer, some products identified in this rulemaking Adoption of the Amendment of the costs of this AD may be covered action. Accordingly, under the authority under warranty, thereby reducing the Regulatory Findings delegated to me by the Administrator, cost impact on affected individuals. We the FAA amends 14 CFR part 39 as do not control warranty coverage for This AD will not have federalism follows: affected individuals. As a result, we implications under Executive Order have included all costs in our cost 13132. This AD will not have a PART 39—AIRWORTHINESS estimate. substantial direct effect on the States, on DIRECTIVES the relationship between the national Authority for This Rulemaking government and the States, or on the ■ 1. The authority citation for part 39 distribution of power and continues to read as follows: Title 49 of the United States Code responsibilities among the various Authority: 49 U.S.C. 106(g), 40113, 44701. specifies the FAA’s authority to issue levels of government. rules on aviation safety. Subtitle I, For the reasons discussed above, I § 39.13 [Amended] section 106, describes the authority of certify that this AD: ■ 2. The FAA amends § 39.13 by adding the FAA Administrator. Subtitle VII: (1) Is not a ‘‘significant regulatory the following new airworthiness Aviation Programs, describes in more action’’ under Executive Order 12866, directive (AD): detail the scope of the Agency’s (2) Is not a ‘‘significant rule’’ under authority. 2012–10–02 Hawker Beechcraft DOT Regulatory Policies and Procedures Corporation: Amendment 39–17051; We are issuing this rulemaking under (44 FR 11034, February 26, 1979), Docket No. FAA–2012–0218; Directorate the authority described in Subtitle VII, (3) Will not affect intrastate aviation Identifier 2012–CE–003–AD. Part A, Subpart III, Section 44701: in Alaska, and (a) Effective Date ‘‘General requirements.’’ Under that (4) Will not have a significant This AD is effective June 21, 2012. section, Congress charges the FAA with economic impact, positive or negative, promoting safe flight of civil aircraft in on a substantial number of small entities (b) Affected ADs air commerce by prescribing regulations under the criteria of the Regulatory None. for practices, methods, and procedures Flexibility Act. (c) Applicability the Administrator finds necessary for List of Subjects in 14 CFR Part 39 (1) This AD applies to the following safety in air commerce. This regulation Hawker Beechcraft Corporation airplanes that is within the scope of that authority Air transportation, Aircraft, Aviation are certificated in any category: because it addresses an unsafe condition safety, Incorporation by reference, (i) Model 58, serial numbers TH–1931 that is likely to exist or develop on Safety. through TH–2124, and

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(ii) Model G58, serial numbers TH–2125 (j) Related Information ACTION: Final rule. through TH–2281, TH–2283, and TH–2284. For more information about this AD, (d) Subject contact Thomas Teplik, Aerospace Engineer, SUMMARY: The Food and Drug Wichita ACO, FAA, 1801 Airport Road, Administration (FDA) is amending the Joint Aircraft System Component (JASC)/ Room 100, Wichita, Kansas 67209; phone: Air Transport Association (ATA) of America (316) 946–4196; fax: (316) 329–4090; email: animal drug regulations to reflect Code 28; fuel. [email protected]. approval actions for new animal drug applications (NADAs) and abbreviated (e) Unsafe Condition (k) Material Incorporated by Reference new animal drug applications This AD was prompted by installation of (1) You must use Hawker Beechcraft (ANADAs) during March 2012. FDA is oversized clamps on fuel vapor return and/ Mandatory Service Bulletin No. SB 28–4039, also informing the public of the or fuel vent lines in the outboard sections of Revision 1, dated October 2011, to do the availability of summaries of the basis of the left and right wings. We are issuing this actions required by this AD, unless the AD AD to correct the unsafe condition on these specifies otherwise. The Director of the approval and of environmental review products. Federal Register approved the incorporation documents, where applicable. by reference (IBR) under 5 U.S.C. 552(a) and (f) Compliance 1 CFR part 51. DATES: This rule is effective May 17, Comply with this AD within the (2) For service information identified in 2012. this AD, contact Hawker Beechcraft compliance times specified, unless already Corporation, B091–A04, 10511 E. Central FOR FURTHER INFORMATION CONTACT: done. Ave., Wichita, Kansas 67206; telephone: George K. Haibel, Center for Veterinary (g) Inspection (800) 429–5372 or (316) 676–3140; fax: (316) Medicine (HFV–6), Food and Drug 676–8027; email: Administration, 7519 Standish Pl., Within the next 50 hours time-in-service [email protected]; or Internet: after June 21, 2012 (the effective date of this http://www.hawkerbeechcraft.com/ Rockville, MD 20855, 240–276–9019, AD) or within the next 6 calendar months customer_support/ email:[email protected]. after June 21, 2012 (the effective date of this technical_and_field_support/. AD), whichever occurs first, inspect the fuel (3) You may review copies of the SUPPLEMENTARY INFORMATION: FDA’s hose clamps for oversized or deformed referenced service information at the FAA, Center for Veterinary Medicine (CVM) is clamps following Hawker Beechcraft Small Airplane Directorate, 901 Locust, adopting use of a monthly Federal Mandatory Service Bulletin No. SB 28–4039, Kansas City, Missouri 64106. For information Register document to codify approval on the availability of this material at the Revision 1, dated October 2011. actions for NADAs and abbreviated Note 1 to paragraph (g) of this AD: If you FAA, call (816) 329–4148. (4) You may also review copies of the ANADAs. CVM will no longer publish have a scheduled inspection before the a separate rule for each action. This compliance time of this AD, the FAA service information that is incorporated by reference at the National Archives and recommends you comply with this AD at that approach will allow a more efficient use Records Administration (NARA). For of available resources. time. information on the availability of this In this document, FDA is amending (h) Replacement material at NARA, call 202–741–6030, or go to: http://www.archives.gov/federal-register/ the animal drug regulations to reflect If any oversized or deformed clamps are cfr/ibr-locations.html. the original and supplemental approval found during the inspection required in Issued in Kansas City, Missouri, on May 9, actions during March 2012, as listed in paragraph (g) of this AD, before further flight, 2012. replace the clamps following Hawker table 1 of this document. FDA is also Beechcraft Mandatory Service Bulletin No. Earl Lawrence, informing the public of the availability SB 28–4039, Revision 1, dated October 2011. Manager, Small Airplane Directorate, Aircraft of environmental review documents Certification Service. required under the National (i) Alternative Methods of Compliance [FR Doc. 2012–11812 Filed 5–16–12; 8:45 am] Environmental Policy Act (NEPA), (AMOCs) BILLING CODE 4910–13–P where applicable. For actions requiring (1) The Manager, Wichita Aircraft review of safety or effectiveness data, Certification Office (ACO), FAA, has the authority to approve AMOCs for this AD, if summaries of the basis of approval (FOI requested using the procedures found in 14 DEPARTMENT OF HEALTH AND Summaries) under the Freedom of CFR 39.19. In accordance with 14 CFR 39.19, HUMAN SERVICES Information Act (FOIA) may be seen in send your request to your principal inspector the Division of Dockets Management Food and Drug Administration or local Flight Standards District Office, as (HFA–305), Food and Drug appropriate. If sending information directly Administration, 5630 Fishers Lane, rm. 21 CFR Parts 510, 520, 522, and 558 to the manager of the ACO, send it to the 1061, Rockville, MD 20852, between attention of the person identified in the [Docket No. FDA–2012–N–0002] 9 a.m. and 4 p.m., Monday through Related Information section of this AD. Friday. (2) Before using any approved AMOC, New Animal Drugs; Ceftiofur Sodium; notify your appropriate principal inspector, Lincomycin Powder; Naracin; Tylosin or lacking a principal inspector, the manager of the local flight standards district office/ AGENCY: Food and Drug Administration, certificate holding district office. HHS.

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TABLE 1—ORIGINAL AND SUPPLEMENTAL NADAS AND ANADAS APPROVED DURING MARCH 2012

FOIA NADA/ Sponsor New animal drug prod- Action 21 CFR sum- NEPA review ANADA uct name Section mary

118–980 ... Elanco Animal Health, A MONTEBAN (narasin) Supplement increasing 558.363 Yes ...... Environmental assess- Division of Eli Lilly & Type A medicated ar- the upper dose limit ment (EA)/Finding of Co., Lilly Corporate ticle. for narasin in broiler no significant impact Center, Indianapolis, feed. (FONSI). IN 46285. 111–636 ... Pharmacia & Upjohn LINCOMIX (lincomycin Supplement adding an 520.1263c Yes ...... Categorically excluded Co., a Division of hydrochloride) Soluble indication for control (CE).1 Pfizer, Inc., 235 East Powder. of American foulbrood 42d St., New York, in honey bees. NY 10017. 200–421 ... Hospira, Inc., 275 N. Ceftiofur for Injection Original approval of ge- 522.313c Yes ...... CE. Field Dr., Lake Forest, (ceftiofur sodium) neric copy of NADA IL 60045. Sterile Powder. 140–338. 200–455 ... Cross Vetpharm Group, TYLOMED–WS (tylosin Supplement adding an 520.2640 Yes ...... CE.1 Ltd., Broomhill Rd., tartrate) Soluble Pow- indication for control Tallaght, Dublin 24, der. of porcine proliferative Ireland. enteropathies. 200–473 ... Huvepharma AD, 33 TYLOVET Soluble Supplement adding an 520.2640 Yes ...... CE.1 James Boucher Blvd., (tylosin tartrate). indication for control Sophia 1407, Bulgaria. of porcine proliferative enteropathies. 1 The Agency has determined under 21 CFR 25.33 that this action is CE from the requirement to submit an EA or an environmental impact statement (EIS) because it is of a type that does not individually or cumulatively have a significant effect on the human environment.

This rule does not meet the definition § 510.600 Names, addresses, and drug (b) Sponsors. See sponsor numbers in of ‘‘rule’’ in 5 U.S.C. 804(3)(A) because labeler codes of sponsors of approved § 510.600(c) of this chapter for use as in it is a rule of ‘‘particular applicability.’’ applications. paragraph (d) of this section. * * * * * Therefore, it is not subject to the (1) No. 000009 for use as in paragraph (c) * * * congressional review requirements in 5 (d) of this section. U.S.C. 801–808. (1) * * * (2) Nos. 046573, 054925, 061623, and List of Subjects 076475 for use as in paragraphs (d)(1) Firm name and address Drug labeler 21 CFR Part 510 code and (d)(2) of this section. Administrative practice and * * * * * procedure, Animal drugs, Labeling, ***** (d) * * * Reporting and recordkeeping Hospira, Inc., 275 North Field Dr., Lake Forest, IL 60045 000409 (3) Honey bees—(i) Amount. Mix 100 requirements. milligrams lincomycin with 20 grams 21 CFR Parts 520 and 522 ***** confectioners’/powdered sugar and dust Animal drugs. over the top bars of the brood chamber (2) * * * once weekly for 3 weeks. 21 CFR Part 558 (ii) Indications for use. For the control Animal drugs, Animal feeds. Drug labeler code Firm name and address of American foulbrood (Paenibacillus Therefore, under the Federal Food, larvae). Drug, and Cosmetic Act and under (iii) Limitations. The drug should be authority delegated to the Commissioner ***** fed early in the spring or late in the fall of Food and Drugs and redelegated to 000409 ...... Hospira Inc., 275 North Field Dr., Lake Forest, IL 60045. and consumed by the bees before the the Center for Veterinary Medicine, 21 main honey flow begins to avoid CFR parts 510, 520, 522, and 558 are ***** contamination of production honey. amended as follows: Complete treatments at least 4 weeks PART 510—NEW ANIMAL DRUGS PART 520—ORAL DOSAGE FORM before main honey flow. NEW ANIMAL DRUGS ■ 5. In § 520.2640, revise paragraph (b) ■ 1. The authority citation for 21 CFR introductory text to read as follows: part 510 continues to read as follows: ■ 3. The authority citation for 21 CFR Authority: 21 U.S.C. 321, 331, 351, 352, part 520 continues to read as follows: § 520.2640 Tylosin. 353, 360b, 371, 379e. Authority: 21 U.S.C. 360b. * * * * * ■ 2. In § 510.600, in the table in ■ 4. In § 520.1263c, revise paragraph (b) (b) Sponsors. See Nos. 000986, paragraph (c)(1), alphabetically add an and add paragraph (d)(3) to read as 016592, and 061623 in § 510.600(c) of entry for ‘‘Hospira, Inc.’’; and in the follows: this chapter. table in paragraph (c)(2), numerically * * * * * add an entry for ‘‘000409’’ to read as § 520.1263c Lincomycin powder. follows: * * * * *

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PART 522—IMPLANTATION OR Dated: May 7, 2012. (202) 343–9055, or by email at INJECTABLE DOSAGE FORM NEW Bernadette Dunham, [email protected] or by mail at U.S. ANIMAL DRUGS Director, Center for Veterinary Medicine. Environmental Protection Agency, [FR Doc. 2012–11937 Filed 5–16–12; 8:45 am] Stratospheric Protection Division, ■ 6. The authority citation for 21 CFR BILLING CODE 4160–01–P Stratospheric Program Implementation part 522 continues to read as follows: Branch (6205J), 1200 Pennsylvania Authority: 21 U.S.C. 360b. Avenue NW., Washington, DC 20460. ■ 7. In § 522.313c, revise paragraphs (b), ENVIRONMENTAL PROTECTION You may also visit the methyl bromide (e)(2)(ii), (e)(3)(ii), (e)(4)(ii), and (e)(8)(i) AGENCY section of the ozone layer protection to read as follows: Web site at www.epa.gov/ozone/mbr for 40 CFR Part 82 further information about the methyl § 522.313c Ceftiofur sodium. bromide critical use exemption, other * * * * * [EPA–HQ–OAR–2009–0277; FRL–9668–3] stratospheric ozone protection (b) Sponsors. See Nos. 000009, RIN 2060–AQ83 regulations, the science of ozone layer 000409, and 068330 in § 510.600(c) of depletion, and related topics. this chapter. Protection of Stratospheric Ozone: The SUPPLEMENTARY INFORMATION: This rule * * * * * 2012 Critical Use Exemption From the concerns Clean Air Act (CAA) (e) * * * Phaseout of Methyl Bromide restrictions on the consumption, (2) * * * production, and use of methyl bromide (ii) Indications for use. For treatment AGENCY: Environmental Protection Agency (EPA). (a Class I, Group VI controlled of bovine respiratory disease (shipping substance) for critical uses during ACTION: Final rule. fever, pneumonia) associated with calendar year 2012. Under the Clean Air Mannheimia haemolytica, Pasteurella SUMMARY: EPA is authorizing uses that Act, methyl bromide consumption and multocida, and Histophilus somni. Also, qualify for the 2012 critical use production were phased out on January for the treatment of acute bovine exemption and the amount of methyl 1, 2005, apart from allowable interdigital necrobacillosis (foot rot, bromide that may be produced, exemptions, such as the critical use pododermatitis) associated with imported, or supplied from existing pre- exemption and the quarantine and Fusobacterium necrophorum and phaseout inventory for those uses in preshipment (QPS) exemption. Bacteroides melaninogenicus. 2012. EPA is taking this action under Consumption is defined under the CAA * * * * * the authority of the Clean Air Act to as production plus imports minus (3) * * * reflect a recent consensus decision by exports. With this action, EPA is (ii) Indications for use. For treatment the Parties to the Montreal Protocol on authorizing the uses that qualify for the of sheep respiratory disease (sheep Substances that Deplete the Ozone 2012 critical use exemption as well as pneumonia) associated with Layer at the Twenty-Second Meeting of specific amounts of methyl bromide that Mannheimia haemolytica and the Parties. may be produced and imported, or sold Pasteurella multocida. DATES: This rule is effective on May 17, from pre-phaseout inventory (also * * * * * 2012. referred to as ‘‘stocks’’) for critical uses (4) * * * in 2012. (ii) Indications for use. For treatment ADDRESSES: EPA has established a Section 553(d) of the Administrative of caprine respiratory disease (goat docket for this action under Docket ID Procedure Act (APA), 5 U.S.C. Chapter pneumonia) associated with No. EPA–HQ–OAR–2009–0277. All 5, generally provides that rules may not Mannheimia haemolytica and documents in the docket are listed on take effect earlier than 30 days after they Pasteurella multocida. the www.regulations.gov web site. are published in the Federal Register. * * * * * Although listed in the index, some EPA is issuing this final rule under (8) * * * information is not publicly available, section 307(d)(1) of the Clean Air Act, (i) Amount. 1.0 mg/lb (2.2 mg/kg) e.g., CBI or other information whose which states: ‘‘The provisions of section body weight by subcutaneous injection. disclosure is restricted by statute. 553 through 557 * * * of Title 5 shall Treatment should be repeated at 24- Certain other material, such as not, except as expressly provided in this hour intervals for 5 to 14 days. copyrighted material, is not placed on section, apply to actions to which this * * * * * the Internet and is publicly available subsection applies.’’ Thus, section only in hard copy form. Publicly 553(d) of the APA does not apply to this PART 558—NEW ANIMAL DRUGS FOR available docket materials are available rule. EPA is nevertheless acting USE IN ANIMAL FEEDS either electronically through consistently with the policies www.regulations.gov or in hard copy at underlying APA section 553(d) in ■ 8. The authority citation for 21 CFR the Air and Radiation Docket, EPA/DC, making this rule effective on May 17, part 558 continues to read as follows: EPA West, Room 3334, 1301 2012. APA section 553(d) allows an Authority: 21 U.S.C. 360b, 371. Constitution Ave. NW., Washington, effective date less than 30 days after DC. The Public Reading Room is open ■ 9. In § 558.363, revise paragraph publication ‘‘as otherwise provided by from 8:30 a.m. to 4:30 p.m., Monday the agency for good cause found and (d)(1)(i) introductory text to read as through Friday, excluding legal follows: published with the rule.’’ Section 5 holidays. The telephone number for the U.S.C. 553(d)(1) allows an effective date § 558.363 Narasin. Public Reading Room is (202) 566–1744, less than 30 days after publication for a and the telephone number for the Air * * * * * rule that ‘‘that grants or recognizes an (d) * * * and Radiation Docket is (202) 566– exemption or relieves a restriction.’’ 5 (1) * * * 1742). U.S.C. 553(d)(1). Since today’s action (i) Amount per ton. Narasin, 54 to 90 FOR FURTHER INFORMATION CONTACT: For can be considered to either grant an grams. further information about this rule, exemption for limited critical uses * * * * * contact Jeremy Arling by telephone at during 2012 from the general

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prohibition on production or import of rulemaking does not affect applicants program was originally published in the methyl bromide after the phaseout date for future control periods. Federal Register on August 12, 1988 (53 of January 1, 2005, or relieve a This list is not intended to be FR 30566), in response to the 1987 restriction that would otherwise prevent exhaustive, but rather to provide a guide signing and subsequent ratification of production or import of methyl for readers regarding entities likely to be the Montreal Protocol on Substances bromide, EPA is making this action regulated by this action. To determine that Deplete the Ozone Layer (Montreal effective immediately upon publication. whether your facility, company, Protocol). The Montreal Protocol is the business, or organization could be international agreement aimed at Table of Contents regulated by this action, you should reducing and eliminating the I. General Information carefully examine the regulations production and consumption of A. Regulated entities promulgated at 40 CFR part 82, subpart stratospheric ozone-depleting II. What is methyl bromide? A. If you have questions regarding the substances. The United States was one III. What is the background to the phaseout applicability of this action to a of the original signatories to the 1987 regulations for ozone-depleting particular entity, consult the person Montreal Protocol and the United States substances? listed in the preceding section. IV. What is the legal authority for exempting ratified the Protocol on April 12, 1988. the production and import of methyl II. What is methyl bromide? Congress then enacted, and President bromide for critical uses authorized by George H.W. Bush signed into law, the Methyl bromide is an odorless, Clean Air Act Amendments of 1990 the parties to the Montreal Protocol? colorless, toxic gas which is used as a V. What is the critical use exemption (CAAA of 1990) which included Title VI process? broad-spectrum pesticide and is on Stratospheric Ozone Protection, A. A. Background of the Process controlled under the CAA as a Class I codified as 42 U.S.C. Chapter 85, B. How does this rule relate to previous ozone-depleting substance (ODS). Subchapter VI, to ensure that the U.S. Methyl bromide was once widely used critical use exemption rules? could satisfy its obligations under the as a fumigant to control a variety of C. Stocks of Methyl Bromide Montreal Protocol. EPA issued D. Critical Uses pests such as insects, weeds, rodents, regulations to implement this legislation E. Critical Use Amounts pathogens, and nematodes. Information and has since amended the regulations F. Critical Use Allowance Allocations on methyl bromide can be found at as needed. G. Critical Stock Allowance Allocations http://www.epa.gov/ozone/mbr. H. The Criteria in Decisions IX/6 and Ex. Methyl bromide is also regulated by Methyl bromide was added to the I/4 EPA under the Federal Insecticide, Montreal Protocol as an ozone-depleting I. Emissions Minimization Fungicide, and Rodenticide Act (FIFRA) substance in 1992 through the VI. Statutory and Executive Order Reviews and other statutes and regulatory Copenhagen Amendment. The Parties to A. Executive Order 12866: Regulatory the Montreal Protocol (Parties) agreed Planning and Review and Executive authority, as well as by States under Order 13563: Improving Regulation and their own statutes and regulatory that each industrialized country’s level Regulatory Review authority. Under FIFRA, methyl of methyl bromide production and B. Paperwork Reduction Act bromide is a restricted use pesticide. consumption in 1991 should be the C. Regulatory Flexibility Act Restricted use pesticides are subject to baseline for establishing a freeze in the D. Unfunded Mandates Reform Act Federal and State requirements level of methyl bromide production and E. Executive Order 13132: Federalism governing their sale, distribution, and consumption for industrialized F. Executive Order 13175: Consultation use. Nothing in this rule implementing countries. EPA published a rule in the and Coordination With Indian Tribal Title VI of the Clean Air Act is intended Federal Register on December 10, 1993 Governments (58 FR 65018), listing methyl bromide as G. Executive Order 13045: Protection of to derogate from provisions in any other Children From Environmental Health Federal, State, or local laws or a Class I, Group VI controlled substance, and Safety Risks regulations governing actions including, freezing U.S. production and H. Executive Order 13211: Actions That but not limited to, the sale, distribution, consumption at the 1991 baseline level Significantly Affect Energy Supply, transfer, and use of methyl bromide. of 25,528,270 kilograms, and setting Distribution, or Use Entities affected by this rule must forth the percentage of baseline I. National Technology Transfer and comply with FIFRA and other pertinent allowances for methyl bromide granted Advancement Act statutory and regulatory requirements to companies in each control period J. Executive Order 12898: Federal Actions for pesticides (including, but not limited (each calendar year) until 2001, when To Address Environmental Justice in the complete phaseout would occur. Minority Populations and Low-Income to, requirements pertaining to restricted Populations use pesticides) when producing, This phaseout date was established in K. Congressional Review Act importing, exporting, acquiring, selling, response to a petition filed in 1991 distributing, transferring, or using under sections 602(c)(3) and 606(b) of I. General Information methyl bromide. The provisions in this the CAAA of 1990, requesting that EPA A. Regulated Entities action are intended only to implement list methyl bromide as a Class I the CAA restrictions on the production, substance and phase out its production Entities and categories of entities consumption, and use of methyl and consumption. This date was potentially regulated by this action bromide for critical uses exempted from consistent with section 602(d) of the include producers, importers, and the phaseout of methyl bromide. CAAA of 1990, which for newly listed exporters of methyl bromide; Class I ozone-depleting substances applicators and distributors of methyl III. What is the background to the provides that ‘‘no extension [of the bromide; and users of methyl bromide phaseout regulations for ozone- phaseout schedule in section 604] under that applied for the 2012 critical use depleting substances? this subsection may extend the date for exemption including growers of The regulatory requirements of the termination of production of any class I vegetable crops, fruits, and nursery stratospheric ozone protection program substance to a date more than 7 years stock, and owners of stored food that limit production and consumption after January 1 of the year after the year commodities and structures such as of ozone-depleting substances are in 40 in which the substance is added to the grain mills and processors. This CFR part 82, subpart A. The regulatory list of class I substances.’’

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At the Seventh Meeting of the Parties control periods from 2006 to 2011. governmental and academic sources, to (MOP) in 1995, the Parties agreed to Under the authority of section 604(d)(6) establish whether there are technically adjustments to the methyl bromide of the CAA, this action authorizes the and economically feasible alternatives control measures and agreed to uses that qualify as approved critical available for a particular use of methyl reduction steps and a 2010 phaseout uses in 2012 and the amount of methyl bromide, and whether there would be a date for industrialized countries with bromide that may be produced, significant market disruption if no exemptions for critical uses. At that imported, or supplied from inventory to exemption were available. In addition, time, the U.S. continued to have a 2001 satisfy those uses. EPA reviews other parameters of the phaseout date in accordance with This action reflects Decision XXII/6, exemption applications such as dosage section 602(d) of the CAAA of 1990. At taken at the Twenty-Second Meeting of and emissions minimization techniques the Ninth MOP in 1997, the Parties the Parties in November 2010. In and applicants’ research or transition agreed to further adjustments to the accordance with Article 2H(5) of the plans. This assessment process phaseout schedule for methyl bromide Montreal Protocol, the Parties have culminates in the development of the in industrialized countries, with issued several Decisions pertaining to U.S. Government’s critical use reduction steps leading to a 2005 the critical use exemption. These nomination (CUN). The U.S. phaseout. The Parties also established a include Decisions IX/6 and Ex. I/4, Department of State has submitted a phaseout date of 2015 for developing which set forth criteria for review of CUN annually to the United Nations (Article 5) countries. critical uses. The status of Decisions is Environment Programme (UNEP) Ozone Secretariat. The Methyl Bromide IV. What is the legal authority for addressed in NRDC v. EPA, (464 F.3d 1, Technical Options Committee (MBTOC) exempting the production and import of DC Cir. 2006) and in EPA’s and the Technology and Economic methyl bromide for critical uses ‘‘Supplemental Brief for the Assessment Panel (TEAP), which are authorized by the parties to the Respondent,’’ filed in NRDC v. EPA and advisory bodies to Parties to the Montreal Protocol? available in the docket for this action. In this rule on critical uses for 2012, EPA Montreal Protocol, review the CUNs of In October 1998, the U.S. Congress is honoring commitments made by the the Parties and make recommendations amended the Clean Air Act to prohibit United States in the Montreal Protocol to the Parties on the nominations. The the termination of production of methyl context. Parties then take Decisions to authorize bromide prior to January 1, 2005, to critical use exemptions for particular require EPA to align the U.S. phaseout V. What is the critical use exemption Parties, including how much methyl of methyl bromide with the schedule process? bromide may be supplied for the specified under the Protocol, and to A. Background of the Process exempted critical uses. As required in authorize EPA to provide certain section 604(d)(6) of the CAA, for each exemptions. These amendments were Article 2H of the Montreal Protocol exemption period, EPA consults with contained in Section 764 of the 1999 established the critical use exemption the United States Department of Omnibus Consolidated and Emergency provision. At the Ninth Meeting of the Agriculture (USDA) and other Supplemental Appropriations Act (Pub. Parties in 1997 the Parties agreed to departments and institutions of the L. 105–277, October 21, 1998) and were criteria for the exemption, as contained Federal government that have regulatory codified in section 604 of the CAA, 42 in Decision IX/6. In that Decision, the authority related to methyl bromide. U.S.C. 7671c. The amendment that Parties agreed that ‘‘a use of methyl EPA also provides an opportunity for specifically addresses the critical use bromide should qualify as ‘critical’ only public comment on the amounts of exemption appears at section 604(d)(6), if the nominating Party determines that: methyl bromide that the agency is 42 U.S.C. 7671c(d)(6). EPA revised the (i) The specific use is critical because proposing to exempt for critical uses phaseout schedule for methyl bromide the lack of availability of methyl and the uses that the agency is production and consumption in a final bromide for that use would result in a proposing as approved critical uses. rulemaking on November 28, 2000 (65 significant market disruption; and (ii) Additional information on the FR 70795), which allowed for the there are no technically and domestic review process and phased reduction in methyl bromide economically feasible alternatives or methodology employed by the Office of consumption specified under the substitutes available to the user that are Pesticide Programs is available in a Protocol and extended the phaseout to acceptable from the standpoint of detailed memorandum titled 2005 while creating a placeholder for environment and public health and are ‘‘Development of 2003 Nomination for a critical use exemptions. EPA again suitable to the crops and circumstances Critical Use Exemption for Methyl amended the regulations to allow for an of the nomination.’’ EPA promulgated Bromide for the United States of exemption for quarantine and these criteria in the definition of America,’’ contained in the docket for preshipment (QPS) purposes on July 19, ‘‘critical use’’ at 40 CFR 82.3. this rulemaking. While the particulars of 2001 (66 FR 37751), with an interim In response to EPA’s request for the data continue to evolve and final rule and with a final rule on critical use exemption applications administrative matters are further January 2, 2003 (68 FR 238). published in the Federal Register on streamlined, the technical review itself On December 23, 2004 (69 FR 76982), May 20, 2009 (74 FR 23705), applicants remains rigorous with careful EPA published a rule (the ‘‘Framework provided data on the technical and consideration of new technical and Rule’’) that established the framework economic feasibility of using economic conditions. for the critical use exemption; set forth alternatives to methyl bromide. On January 22, 2010, the U.S. a list of approved critical uses for 2005; Applicants also submitted data on their Government (USG) submitted the eighth and specified the amount of methyl use of methyl bromide, research CUN to the Ozone Secretariat of the bromide that could be supplied in 2005 programs into the use of alternatives, UNEP. This nomination contained the from stocks and new production or and efforts to minimize use and request for 2012 critical uses. In import to meet the needs of approved emissions. February 2010, MBTOC sent questions critical uses. EPA has subsequently EPA’s Office of Pesticide Programs to the USG concerning technical and published rules applying the critical use reviews the data submitted by economic issues in the 2012 exemption framework for each of the applicants, as well as data from nomination. The USG transmitted

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responses to MBTOC in March, 2010. C. Stocks of Methyl Bromide • National Pest Management These documents, together with reports Association food processing The Framework Rule established by the advisory bodies noted above, are structures provisions governing the sale of pre- • Mills and processors in the public docket for this rulemaking. phaseout inventories for critical uses, • Dried cured pork The critical uses and allocation amounts including the concept of CSAs and a • Cucurbits reflect the analysis contained in those prohibition on the sale of pre-phaseout • Eggplant—field documents. inventories for critical uses in excess of • Forest nursery seedlings the amount of CSAs held by the seller. B. How does this rule relate to previous • Nursery stock—fruits, nuts, flowers It also established trading provisions critical use exemption rules? • Orchard replants that allow CUAs to be converted into • Ornamentals The December 23, 2004, Framework CSAs. • Peppers—field Rule (69 FR 76982) established the The aggregate amount of pre-phaseout • Strawberry—field framework for the critical use methyl bromide reported as being in • Strawberry runners exemption program in the U.S., inventory at the beginning of 2011 was • Tomatoes—field including definitions, prohibitions, 1,802,715 kg. As in prior years, the • Sweet potato slips trading provisions, and recordkeeping Agency continues to closely monitor EPA sought comment on the technical and reporting obligations. The preamble CUA and CSA data. As stated in the analysis contained in the U.S. to the Framework Rule included EPA’s final 2006 CUE Rule, if an inventory nomination (available for public review determinations on key issues for the shortage occurs, EPA may consider in the docket to this rulemaking), and critical use exemption program. various options including authorizing information regarding any changes to the conversion of a limited number of An approved critical user may the registration (including cancellation CSAs to CUAs through a rulemaking, purchase methyl bromide produced or or new registrations), use, or efficacy of bearing in mind the upper limit on U.S. imported with critical use allowances alternatives that have transpired after production/import for critical uses. (CUAs) as well as limited inventories of the 2012 U.S. nomination was written. pre-phaseout methyl bromide, the As explained in the 2008 CUE Rule, Such information has the potential to combination of which constitute the EPA intends to continue releasing the alter the technical or economic supply of ‘‘critical use methyl bromide’’ aggregate methyl bromide stockpile data feasibility of an alternative and could intended to meet the needs of agreed reported under the requirements at 40 thus cause EPA to modify the analysis critical uses. Since publishing the CFR 82.13 for the end of each control that underpins EPA’s determination as Framework Rule, EPA has annually period. If the number of competitors in to which uses and what amounts of promulgated regulations to exempt from the industry were to decline methyl bromide qualify for the CUE. the phaseout of methyl bromide specific appreciably, EPA may revisit the EPA recognizes that as the market for quantities of production and import for question of whether the aggregate is alternatives evolves, the thresholds for entitled to treatment as confidential each control period (each calendar what constitutes ‘‘significant market business information and whether to year), to determine the amounts that disruption’’ or ‘‘technical and economic release the aggregate without notice. may be supplied from pre-phaseout feasibility’’ change. EPA received one EPA did not propose to change the inventory, and to indicate which uses comment urging the agency to consider treatment of submitted information but meet the criteria for the exemption greater use of 1,3–D and sulfuryl welcomes relevant information program for that year. See 71 FR 5985 fluoride than contained in the technical concerning the composition of the analysis. This comment repeats a (calendar year 2006), 71 FR 75386 industry. EPA did not receive any (calendar year 2007), 72 FR 74118 comment submitted by the same information suggesting that the number commenter on the 2010 CUE Rule but (calendar year 2008), 74 FR 19878 of companies has declined to the point (calendar year 2009), 75 FR 23167 does not provide any new data. EPA has that EPA should consider treating the considered the commenter’s concerns (calendar year 2010), and 76 FR 60736 aggregate as confidential information. (calendar year 2011). and believes that response contained in The aggregate information for 2003 the 2010 CUE Rule response to Today’s action uses the existing through 2011 is available in the docket comments, which is available in the regulatory framework to determine for this rulemaking. docket to this rule, still appropriately critical uses for 2012 and the amounts D. Critical Uses addresses this comment. of critical use allowances (CUAs) and EPA proposed to modify the table in critical stock allowances (CSAs) to be In Decision XXII/6, taken in 40 CFR part 82, subpart A, appendix L allocated for those uses. A CUA is the November 2010, the Parties to the to reflect the agreed critical use privilege granted through 40 CFR part Protocol agreed ‘‘to permit, for the categories identified in Decision XXII/6. 82 to produce or import 1 kilogram (kg) agreed critical-use categories for 2012 EPA is finalizing the lists of critical uses of methyl bromide for an approved set forth in table C of the annex to the and critical users as proposed. First, critical use during the specified control present decision for each party, subject EPA is removing from the list of period. These allowances expire at the to the conditions set forth in the present approved critical users two users that end of the control period and, as decision and in decision Ex.I/4 to the did not submit applications for 2012 explained in the Framework Rule, are extent that those conditions are and therefore were not included in the not bankable from one year to the next. applicable, the levels of production and U.S. nomination. These users are A CSA is the right granted through 40 consumption for 2012 set forth in table International Paper and Weyerhaeuser CFR part 82 to sell 1 kg of methyl D of the annex to the present decision Company in the forest nursery seedlings bromide from the remaining inventory which are necessary to satisfy critical sector and beans in the commodities of material produced or imported prior uses * * *’’ The following uses are sector. to the January 1, 2005, phaseout date for those set forth in table C of the annex Second, EPA is removing North an approved critical use during the to Decision XXII/6 for the United States: Carolina and Tennessee strawberry specified control period. • Commodities nurseries from the list of approved

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critical users. Southeast strawberry ease of reference. The ‘‘local township certain conditions. The No Action growers applied for a critical use in limits prohibiting 1,3-dichloropropene’’ Assurance allows for the production 2012. The U.S. did not submit a are prohibitions on the use of 1,3- and import of 379,872 kg and the sale nomination to UNEP for this use in this dichloropropene products in cases of 131,541 kg from pre-phaseout geographical location because EPA’s where local township limits on use of inventory for critical uses. The No technical review found that there are this alternative have been reached. In Action Assurance levels were half the alternatives to methyl bromide for addition, ‘‘pet food’’ under subsection B amounts contained in the proposed rule Southeast strawberry nurseries. of Food Processing refers to food for to allow for changes to the final rule Third, EPA is limiting the scope of the domesticated dogs and cats. Finally, after new inventory data were received. approved critical use for the National ‘‘rapid fumigation’’ for commodities is At the end of February, distributors Pest Management Association’s (NPMA) when a buyer provides short (two reported to EPA the amount of pre- post harvest fumigations. In past control working days or fewer) notification for phaseout inventory that was still under periods, the scope of the NPMA food a purchase or there is a short period their ownership as of December 31, processing critical use included after harvest in which to fumigate and 2011. These data show that the pre- ‘‘processed food, cheese, herbs and there is limited silo availability for phaseout inventory was greater than the spices, and spaces and equipment in using alternatives. estimates that formed the basis of the associated processing and storage E. Critical Use Amounts CSA and CUA amounts in the proposed facilities.’’ MBTOC found that the rule. In the proposed rule, EPA nomination for food processing facilities Table C of the annex to Decision XXII/ estimated that the inventory would was inadequately justified and 6 lists critical uses and amounts agreed decline to 692,082 kg at the end of 2011. recommended only cheese storage to by the Parties to the Montreal The reported data show that the facilities for consideration by the Parties Protocol. When added together, the total remaining inventory was actually authorization for 2012 is 1,022,826 kg, as a critical use. MBTOC’s comments 1,248,876 kg. which is equivalent to 4.0% of the U.S. can be found in the May 2010 TEAP The amount of inventory drawdown 1991 methyl bromide consumption Progress Report in the docket to this was so low compared to EPA’s estimates rule. The Parties’ Decision reflects the baseline. The maximum amount of new in the proposed rule that if EPA were to MBTOC recommendation. EPA is production or import authorized by the apply the framework calculation modifying the NPMA critical use to Parties is 922,826 kg (3.6% of baseline) detailed in the proposed rule to the new include only ‘‘Members of the National as set forth in Table D of the annex to data, the new production levels would Pest Management Association treating Decision XXII/6. The difference between be less than what is allowed under the cheese storage facilities.’’ the total authorization and the EPA did not receive any comments authorized amount of new production is No Action Assurance (these calculations objecting to the proposed modifications 100,000 kg (0.4% of baseline), which is are available in the docket for this to the table in 40 CFR part 82, subpart the minimum that the Parties expect the rulemaking). The No Action Assurance A, appendix L. EPA received three U.S. to use from pre-phaseout inventory allows for the production and import of comments agreeing that the proposed on critical uses. 379,872 kg and the sale of 131,541 kg critical uses have a continuing need for EPA is finalizing the amount of new from pre-phaseout inventory for critical access to methyl bromide under a 2012 production and import discussed in the uses. Under the framework calculation CUE. One commenter stated that the proposed rule. With this final rule, EPA based on new inventory data, the strict application and review process is allocating 759,744 kg (3.0% of allocation would be 202,950 kg of new properly limits the use of methyl baseline) of new production and import production/import and 819,876 kg of bromide, given its effect on the of methyl bromide for critical uses for inventory. stratospheric ozone layer. EPA also 2012. EPA is also allocating 263,082 kg Hence, EPA is not finalizing a critical received comment that there should be (1.0% of baseline) in the form of critical use allocation of 202,950 kg for 2012. no uses of methyl bromide given its stock allowances for sale of pre- This amount would be below what is toxicity and effect on the stratospheric phaseout inventory for critical uses in currently allowed for production/import ozone layer. EPA disagrees that all 2012. in the No Action Assurance letter. methyl bromide use should stop. The In the proposed rule, EPA used the Regulated entities have been acting on CUN addresses the need for methyl methodology established in the 2008 the amounts in the No Action Assurance bromide for the 2012 critical uses. In CUE Rule to determine the level of letter in good faith, and may have addition, the 2012 critical uses were ‘‘available stocks,’’ from which the already produced up to the allowed reviewed by the technical bodies to the CSAs are calculated. At the time of the level. In addition, EPA never Ozone Secretariat and authorized by the proposed rule, EPA estimated that determined that the No Action Parties to the Montreal Protocol. 263,082 kg of pre-phaseout inventory Assurance levels for CUAs and CSAs Concerns about the toxicity of methyl would be ‘‘available’’ for use in 2012. would be sufficient for an entire year. bromide are addressed through the Therefore, EPA proposed allocating When this situation occurred during the pesticide registration program under 263,082 kg of critical stock allowances development of the 2011 CUE Rule, EPA FIFRA, as well as other authorities, and for 2012. Using the calculation finalized the new production amount are outside the scope of this rulemaking. described in the proposed rule, EPA allowed under the No Action Assurance EPA also received one comment then proposed a CUA amount of and allocated CSAs up to the full level questioning some of the limiting critical 759,744 kg. authorized by the Parties. Were EPA to conditions. This commenter has raised Due to the timing of the 2012 CUE follow this approach in this 2012 Rule, the same points in past CUE rulemaking, EPA issued a No Action EPA would finalize 379,872 kg of new rulemakings and EPA believes our Assurance letter December 21, 2011. production and import and 819,876 kg responses from past rulemakings, which This letter allowed critical use of critical stock allowances. For the are included in the docket for this rule, allowance holders to continue reasons discussed below, EPA is not remain appropriate. producing and importing methyl following this approach but rather is EPA is repeating the following bromide beyond December 31, 2011, in finalizing the amounts discussed in the clarifications made in previous years for the absence of allowances, subject to proposed rule.

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An allocation of 202,950 kg, or even production or import. The commenter reasonable exercise of EPA’s discretion 379,872 kg (i.e., an amount consistent stated that the Parties authorized under this provision. with the No Action Assurance) for new 922,826 kg for new production and One commenter objects to the use of production and import would be import and that it is arbitrary and a supply chain factor in determining an substantially less than the amount capricious for the agency to allocate any amount of ‘‘available stocks’’ that can be proposed, which was 759,744 kg. These amount less than that level of new used by critical users and requests that circumstances are substantially different production. EPA disagrees with the EPA require that the inventory be from the 2011 rule, when EPA proposed commenter’s interpretation of Decision exhausted before allowing any to authorize 1,500,000 kg of new XXII/6. In Table D of Decision XXII/6, additional new production. The production, and issued a No Action the Parties authorized 922,826 kg for commenter also states that the Assurance for that same amount of new new production and import ‘‘minus calculation of the supply chain factor is production. While EPA provided the available stocks.’’ Thus, EPA does not overly conservative because it assumes public with an explanation of how it believe it would be consistent with a catastrophic loss when production is at the peak. EPA has addressed this calculated its proposed authorization for Decision XXII/6 to authorize 922,826 kg comment in prior rulemakings; those CUE, and noted that it might adjust for new production and import without responses are available in the docket for those calculations with new data, EPA considering available stocks. believes the results of the methodology this rulemaking. Furthermore, EPA notes, consistent with using the updated data now available Another commenter stated that the our position in prior rulemakings, that are sufficiently different that additional CSA allocation failed to consider the the Agency is not required to allocate notice and the opportunity to comment effect that drawing down the pre- would be warranted before using that the full amount of authorized new phaseout inventory would have if there data as the basis for a final CUE production and consumption. The is a catastrophic failure in the domestic authorization. At the same time, EPA Parties only agree to ‘‘permit’’ a supply of methyl bromide in future recognizes that regulated entities, particular level of production and years. EPA believes that the calculation including manufacturers and critical consumption; they do not—and of the supply chain factor (which users of methyl bromide, are in need of cannot—mandate that the U.S. authorize reflects the level of authorized CUE use a final CUE rule for calendar year 2012. this level of production and as it declines) was adequate EPA did not propose, and is not consumption domestically. Nor does the consideration of the possibility of a considering, a total authorization of less CAA require EPA to allow the full future catastrophic interruption in the than 1,022,826 kg for critical uses in amount permitted by the Parties. domestic supply of methyl bromide. 2012. EPA has weighed the benefit of re- Section 604(d)(6) of the CAA does not Although EPA is not relying on opening for comment the allocation of require EPA to exempt any amount of calculation of a supply chain factor and the total authorization between critical production and consumption from the the formula it proposed to use to use allowances and critical stock phaseout, but instead specifies that the allocate CSAs in this final rule, EPA allowances against the time-sensitive Agency ‘‘may’’ create an exemption for notes that the CSA allocation is lower need for a CUE authorization for the critical uses, providing EPA with under this final rule than if EPA had current calendar year and concluded substantial discretion. relied on that formula, because more that re-opening the allocation for When determining the CSA amount methyl bromide remains in pre- comment is not warranted. Accordingly, for a year, EPA considers what portion phaseout inventory than anticipated. Unlike past control periods, all EPA is finalizing its proposed of existing stocks is ‘‘available’’ for allocations of 759,744 kg of critical use critical use methyl bromide that critical uses. As discussed in prior CUE companies reported to be produced or allowances and 263,082 kg of critical rulemakings, the Parties to the Protocol stock allowances for 2012. imported in 2010 was sold to end users. recognized in their Decisions that the The information reported to EPA is that EPA received a comment that the level of existing stocks may differ from calculation mistakenly used the CSA 1,954,610 kg of critical use methyl the level of available stocks. Decision allocation amount from the proposed bromide was produced or imported. A XXII/6 states that ‘‘production and 2011 CUE rule, not the final rule. When slightly higher amount than the amount consumption of methyl bromide for EPA was developing the proposed 2012 produced or imported was actually sold critical uses should be permitted only if rule, the 2011 rule was still not to end-users in 2010. This additional finalized. EPA assumed that the final methyl bromide is not available in amount was from distributors selling 2011 rule would allocate 482,333 kg but sufficient quantity and quality from amounts that were carried over from the it actually allocated 555,200 kg of CSAs. existing stocks.’’ In addition, earlier 2009 control period. Thus, EPA did not The commenter requests that the decisions refer to the use of ‘‘quantities propose to apply any carryover estimated drawdown calculation be of methyl bromide from stocks that the deduction to the new production updated. EPA agrees with the Party has recognized to be available.’’ amount for 2012. commenter that EPA would have used Thus, it is clear that individual Parties One commenter suggested that the the value from the final 2011 rule, had have the ability to determine their level lack of a carryover demonstrates excess it been available when EPA was of available stocks. Decision XXII/6 demand and that EPA should therefore developing the proposed 2012 rule. EPA further reinforces this concept by increase the amount of newly produced has used the updated CSA value from including the phrase ‘‘minus available or imported material. EPA responds that the final 2011 rule, as well as updated stocks’’ as a footnote to the United the agency expects material produced or inventory information, in calculating States’ authorized level of production imported for use in a particular control how the formula used in the proposal and consumption in Table D. Section period to be used in that control period would allocate the CUE authorization. 604(d)(6) of the CAA does not require and that there typically should not be a However, as noted above, EPA is not EPA to adjust the amount of new carryover. EPA established the carryover basing the allocation in this final rule on production and import to reflect the reduction to account for an over that formula. availability of stocks; however, as allocation or underuse of allowances in One commenter objected to EPA’s explained in previous rulemakings, a particular control period and avoid proposal to allocate 759,744 kg for new making such an adjustment is a any stockpiling of critical use material.

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The absence of a carryover does not permit each iodomethane application import in the 2012 allocation rule to mean that the agency should increase that occurs within their jurisdiction. account for this difference. the allocation. EPA’s carryover One commenter stated that EPA EPA took comment on an alternative calculation is consistent with the should not be allocating fewer CUEs approach in which EPA would allocate method used in previous CUE rules, and than the amount authorized by the 631,362 kg (2.5% of baseline) of CUAs with the method agreed to by the Parties Parties given EPA’s January 19, 2011, for 2012. This amount is 128,382 kg less in Decision XVI/6 for calculating proposal to revoke the tolerances than the proposed CUA amount. The column L of the U.S. Accounting established for sulfuryl fluoride under CSA amount could remain either at Framework. All past U.S. Accounting section 408 of the Federal Food, Drug, 263,082 kg or be increased to 391,464 kg Frameworks for the methyl bromide and Cosmetic Act (76 FR 3422). This to reflect the lower CSA allocation in critical use exemption are available in rule is based on the current status of 2011. The total allocation for 2012 the public docket for this rulemaking. alternatives and is limited to 2012. The would be 894,444 kg or 1,022,826 kg EPA considers new data about proposed tolerance revocation rule depending on how many CSAs are alternatives that were not available at includes a staggered implementation issued under this alternative. EPA did the time the U.S. Government submitted scheme so that it is unlikely that any not propose this alternative as the lead the CUN to the Parties and adjusts the specific revocation will be effective as approach because the number of CUAs allocation for new production and soon as 2012 (76 FR 3447). Therefore, in the 2011 rule did not exceed the import accordingly. Two alternatives EPA has not based the allocation Parties’ production authorization for not considered in the 2012 CUN, which amounts for 2012 on any anticipated 2011 and the total CUE amount for 2011 was submitted to UNEP in January 2010, impacts of that proposal on methyl was unaffected. EPA received one may be used in limited quantities in bromide use. comment in opposition to this 2012. EPA proposed to not adjust the EPA did not propose to take any other approach. The commenter states that the allocation considering that the uptake of reductions because the 2012 CUN 2011 CUA allocation was proper these two alternatives (iodomethane and properly applied transition rates for all because it maintained consistency with the No Action Assurance letter and that DMDS) is expected to be minimal in other alternatives. The TEAP report of 2012. One commenter agreed that the any ‘‘over allocation’’ in 2011 will self- October 2010 included reductions in its uptake will be practically nonexistent. correct in future rules. First, any recommendations for critical use In July 2010, EPA registered Dimethyl additional new production would categories based on the transition rates Disulfide (DMDS) to control nematodes, reduce the need to use CSAs, which will in the 2012 CUN. The TEAP’s weeds, and pathogens in tomatoes, result in more ‘‘available stocks’’ in next recommendations were then considered peppers, eggplants, curcurbits, year’s CUE calculation and therefore a in the Parties’ 2012 authorization strawberries, ornamentals, forest higher CSA allocation. Second, any amounts, as listed in Decision XXII/6. nursery seedlings, and onions. Twenty- unused allocation will be captured in Therefore, transition rates, which four states have now registered DMDS EPA’s calculation of carryover. After and registrations are pending in four account for the uptake of alternatives, considering this issue, EPA is not other states. Even though DMDS is have already been applied for finalizing the alternative allocation registered in states that grow critical use authorized 2012 critical use amounts. approach in the final rule. crops, EPA believes that the uptake of EPA continues to gather information EPA received one comment that the this alternative will be minimal in 2012. about methyl bromide alternatives rulemaking process typically is not Use in the 2011 growing season was through the CUE application process, completed in a timely manner. Methyl small because the product was either and by other means. EPA also continues bromide producers, importers, and not registered in the state or the to support research and adoption of distributers need advance notice of their distribution system was still under methyl bromide alternatives, and to allowances to ensure material can be development. Furthermore, the request information about the economic manufactured or imported and manufacturer of DMDS, Arkema, has and technical feasibility of all existing ultimately distributed to growers to stated that they are limiting the roll-out and potential alternatives. meet spring fumigation schedules. The of this alternative to ensure proper EPA also took comment on an issue commenter requests that EPA develop a applicator training and use of odor raised in the proposed 2011 CUE rule. more efficient process to promulgate the mitigation practices. As stated in the In that rulemaking, EPA proposed a critical use rule so that it is in effect proposed rule, EPA continues to critical-use allowance allocation of before the control period begins. EPA anticipate that growers will use the 2012 1,500,000 kg for 2011, given that notes that the Parties to the Montreal growing season to test the fumigant on regulated entities had been acting in Protocol take their decision to authorize limited acreage. Therefore, EPA is not good faith on statements made by the critical uses typically a year before the reducing the allocation of allowances agency in a No Action Assurance letter control period at issue. This schedule, based on the uptake of DMDS in 2012. that producers and importers could coupled with the Clean Air Act section Second, California registered assume the final allocation would be at 604(d)(6) requirement to provide notice iodomethane in December of 2010. EPA least that much. While the total and the opportunity for public is unable to estimate uptake of allocation was not affected, the amount comment, makes it difficult for EPA to iodomethane in California during 2012 of new production was 128,382 kg more complete the rule in advance of the due to uncertainties created by the than what EPA would have allocated for control period, since the Decisions of California label. Specifically, the 2011 had the CSA and CUA amounts the Parties are central to the California label has larger buffer zones been based on the ‘‘available stocks’’ development of the rule. However, EPA and lower use rates than the federal calculation using end of year inventory acknowledges that promulgating the label. EPA does not have efficacy data. It also means that the critical stock rule after the start of the control period studies at the California label’s lower allocation was 128,382 kg less than the is not ideal. EPA will consider means of use rates and is uncertain how widely amount of ‘‘available stocks.’’ EPA streamlining the Critical Use Exemption it will be adopted without that data. In stated in the 2011 proposed rule that the rulemaking in the future so that the rule addition to the state registration, County Agency could reduce critical-use can be issued prior to the start of the Agricultural Commissioners must allowances for new production and control period.

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F. Critical Use Allowance Allocations specific approach would be overly amount approved by the Parties and the EPA is allocating critical use complex to administer, would create permitted level of U.S. production and allowances for new production or problems for distributors, and would consumption. For 2012, that difference import of methyl bromide up to the spread allowances among too many is 100,000 kg (0.4% of baseline). One commenter stated that the amount of 759,744 kg (3.0% of baseline) producer/importers and distributors. Agency is incorrect to assume that as shown in the table in 40 CFR EPA has addressed these comments in 263,082 kg of pre-phaseout inventory 82.8(c)(1). These allowances expire at prior rulemakings; those responses are will be available for critical uses in the end of the control period and, as available in the docket for this 2012. Instead, the commenter stated that explained in the Framework Rule, are rulemaking. For the reasons discussed in the EPA should allocate only 100,000 kg not bankable from one year to the next. preamble to the 2009 CUE rule (74 FR from stocks. The commenter says that The CUA allocation is subject to the 19894), the agency believes that under the distributors that own stocks are free trading provisions at 40 CFR 82.12, the universal allocation approach to sell them for any purpose, including which are discussed in section V.G. of adopted in the Framework Rule, the for non-CUE uses, and that EPA cannot the preamble to the Framework Rule (69 actual critical use will closely follow the control how or whether inventory is FR 76982). sector breakout listed in the Parties’ sold. EPA agrees that the allocation Paragraph 3 of Decision XXII/6 states decisions. system allows distributors of inventory ‘‘that Parties shall endeavor to license, to respond to market conditions instead permit, authorize or allocate quantities G. Critical Stock Allowance Allocations of requiring them to sell inventory to of critical-use methyl bromide as listed The 2004 Framework Rule (69 FR critical users. EPA issues CSAs as a in tables A and C of the annex to the 52366) established the provisions mechanism to track the use of stocks for present decision.’’ This is similar to governing the sale of pre-phaseout critical uses. Under section 82.4(p), language in prior Decisions authorizing inventories for critical uses, including stocks may not be sold for use on critical uses. The language from these the concept of CSAs and a prohibition critical uses if the seller does not hold Decisions calls on Parties to endeavor to on the sale of pre-phaseout inventories the corresponding amount of CSAs. allocate critical use methyl bromide on for critical uses in excess of the amount Critical users may purchase either a sector basis. EPA’s Framework Rule of CSAs held by the seller. In addition, newly produced or imported critical use proposed several options for allocating the Framework Rule further took pre- methyl bromide or stocks sold through critical use allowances, including a phaseout inventories into account the expenditure of CSAs. EPA chose this sector-by-sector approach. The agency through the trading provisions that approach, at least in part, to promote evaluated the various options based on allow CUAs to be converted into CSAs. market flexibility and efficiency. EPA’s their economic, environmental, and A preambular paragraph to Decision formula for calculating the amount of practical effects. After receiving XXII/6 states ‘‘that parties should ‘‘available stocks’’ contains a variable comments, EPA determined that a reduce their stocks of methyl bromide representing the drawdown of pre- lump-sum, or universal, allocation, retained for employment in critical-use phaseout inventory prior to the modified to include distinct caps for exemptions to a minimum in as short a beginning of the relevant control period. pre-plant and post-harvest uses, was the time period as possible.’’ EPA notes that EPA has attempted to estimate the most efficient and least burdensome the U.S. Government does not retain amounts of pre-phaseout inventory approach that would achieve the pre-phaseout inventory. Pre-phaseout expected to be sold to critical and non- desired environmental results, and that inventory is held by private companies critical users. EPA recognizes that its a sector-by-sector approach would pose that may sell or distribute it for any use estimates have become increasingly significant administrative and practical that meets the labeling under FIFRA, inexact in characterizing actual difficulties. whether critical or not. EPA believes it drawdown of pre-phaseout inventory, as One commenter states that EPA is responsibly managing the stocks of the amounts in inventory have declined should allocate specifically to each of pre-phaseout inventory through the CUE over time. EPA intends to consider the the Critical Use Categories as authorized authorization process. Prior rulemakings adequacy of using this formula to assess by the Parties. The EPA’s ‘‘lump sum’’ have generally allocated higher amounts ‘‘available stocks’’ in a future action. approach, the commenter asserts, does from stocks than the minimum set forth However, the fact that distributors can not guarantee that critical users have in the Parties’ decisions. Through the choose to sell to non-critical users does access to methyl bromide and it instead careful management, aggregate amounts not necessarily mean that the inventory allows those with the greatest ability to have been reduced by 93% since the is largely unavailable to critical users. In pay to garner methyl bromide away end of 2003. In addition, EPA has fact, regulatory changes under the from other users with approved critical undertaken a broader use of its FIFRA labeling requirements discussed needs. Furthermore, developers of regulatory authorities under FIFRA to above will likely mean that remaining methyl bromide alternatives need progressively limit U.S. domestic use of stocks are increasingly only available to assurance that methyl bromide will stocks to critical uses. While it is not U.S. critical uses. End of year reported eventually exit a particular use segment. possible to predict the exact date by data show that the inventory on Allowing an open market for methyl which all remaining pre-2005 inventory December 31, 2011, was 1,248,876 kg. bromide allocation is an economic will be exhausted, under the FIFRA EPA expects that holders of pre- disincentive for anyone developing process any small remaining quantities phaseout inventory will be able to alternatives. At a minimum, this in 2015 will likely be entirely devoted expend the full amount of CSA commenter supports distinguishing to uses that have been identified as allocations to satisfy the needs of between pre-plant and post-harvest critical under the process developed critical users. sectors as EPA currently does. EPA since 2005 to address critical needs of One commenter also stated that received a separate comment favoring developed countries. EPA is allocating inventory was disproportionately the universal allocation approach over a CSAs for the 2012 control period in the distributed among fewer distributors sector-specific allocation. The amount of 263,082 kg (1.0% of and thus is unavailable to critical users. commenter states that by allocating up baseline). This is more than the EPA collects information annually on to 14 types of allowances the sector difference between the total U.S. CUE the number of companies that hold

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inventory. These data support the criteria in paragraphs 5 and 6 of leaving the research portion of the total comment that some companies no Decision Ex. I/4. critical use exemption to be met through longer maintain any pre-phaseout The criterion in Decision IX/ the use of CSAs. inventory. Recent mergers have also 6(1)(b)(ii), which refers to the use of In the proposed rule, EPA discussed resulted in fewer companies holding available stocks of methyl bromide, is a supplemental critical use nomination pre-phaseout inventory. However, there addressed in sections V.E., V.F., and of 2,576 kg for research activities in has not been a significant change in the V.G. of this preamble. The agency has 2012. This nomination was to have been overall geographic distribution of previously provided its interpretation of discussed at the Meeting of the Parties inventory. It is still held by companies the criterion in Decision IX/6(1)(a)(i) in November 2011. EPA proposed to in large amounts in both California and regarding the presence of significant increase the final CSA allocation by up the Southeast, the two largest markets market disruption in the absence of an to 2,576 kg after consideration of the for critical use methyl bromide. EPA exemption, and EPA refers readers to action taken by the Parties in November will continue to consider the question of the 2006 CUE rule (71 FR 5989) as well 2011 and comments on research needs. availability of stocks in light of as to the memo in the docket titled However, prior to the Meeting of the declining inventory and distributors in ‘‘Development of 2003 Nomination for a Parties, the U.S. Government withdrew future actions. However, as noted above Critical Use Exemption for Methyl the supplemental nomination. EPA believes that holders of pre- Bromide for the United States of Therefore, EPA is not increasing the phaseout inventory will be able to America’’ for further elaboration. final CSA allocation. Nonetheless, the expend the full amount of CSA The remaining considerations are 2012 nomination and the decision the allocations in 2012 to satisfy the needs addressed in the nomination documents Parties took in 2010 are broad enough to of critical users. including: the lack of available cover both research and non-research EPA’s allocation of CSAs is based on technically and economically feasible uses. As discussed in the preamble to each company’s proportionate share of alternatives under the circumstance of the 2010 CUE rule (75 FR 23179), the aggregate inventory. In 2006, the the nomination; efforts to minimize use research is a key element of the critical United States District Court for the and emissions of methyl bromide where use process. Research on the crops District of Columbia upheld EPA’s technically and economically feasible; shown in the table in Appendix L to treatment of company-specific methyl the development of research and subpart A remains a critical use of bromide inventory information as transition plans; and the requests in methyl bromide. While researchers may confidential. NRDC v. Leavitt, 2006 WL Decision Ex. I/4(5) and (6) that Parties continue to use newly produced 667327 (D.D.C. March 14, 2006). consider and implement MBTOC material for field, post-harvest, and Therefore, the documentation regarding recommendations, where feasible, on emission minimization studies requiring company-specific allocation of CSAs is reductions in the critical use of methyl the use of methyl bromide, EPA in the confidential portion of the bromide and include information on the encourages researchers to use pre- rulemaking docket and the individual methodology they use to determine phaseout inventory purchased through CSA allocations are not listed in the economic feasibility. the expenditure of CSAs. EPA also table in 40 CFR 82.8(c)(2). EPA notes Some of these criteria are evaluated in encourages distributors to make that it is modifying the table in 40 CFR other documents as well. For example, inventory available to researchers, to 82.8(c)(2) to reflect the recent merger of the U.S. has considered the adoption of promote the continuing effort to assist three methyl bromide distributors who alternatives and research into methyl growers to transition critical use crops are also critical stock allowance holders. bromide alternatives, criterion (1)(b)(iii) to alternatives. The revised table removes the in Decision IX/6, in the development of I. Emissions Minimization individual entries for Hendrix & Dail, the National Management Strategy Hy-Yield Products, and Reddick submitted to the Ozone Secretariat in Previous decisions have stated that Fumigants and adds an entry for TriEst December 2005, and updated in October Parties shall request critical users to Ag Group, Inc. EPA will inform the 2009. The National Management employ emission minimization listed companies of their CSA Strategy addresses all of the aims techniques such as virtually allocations in a letter following specified in Decision Ex.I/4(3) to the impermeable films, barrier film publication of the rule. extent feasible and is available in the technologies, deep shank injection and/ docket for this rulemaking. or other techniques that promote H. The Criteria in Decisions IX/6 and EPA received one comment that the environmental protection, whenever Ex. I/4 Agency should adjust production and technically and economically feasible. Paragraphs 2 and 5 of Decision XXII/ import levels in the 2012 CUE Rule to One commenter asks EPA to require 6 request Parties to ensure that the account for research amounts. EPA emissions minimization techniques conditions or criteria listed in Decisions received a similar comment on the 2011 rather than simply encourage them. EPA Ex. I/4 and IX/6, paragraph 1, are CUE Rule. The commenter implied that notes that, although EPA considers applied to exempted critical uses for the EPA had a previous policy of adjusting application rates in determining CUAs, 2012 control period. A discussion of the the production and import level upward requiring specific emissions agency’s application of the criteria in to provide an allocation for research. minimization techniques would be paragraph 1 of Decision IX/6 appears in This is not an accurate characterization outside the scope of the proposed rule. sections V.A., V.D., V.E., and V.G. of of EPA’s policy. Prior to 2010, the U.S. EPA developed a comprehensive this preamble. EPA has solicited Nomination did contain a separate strategy for risk mitigation through the comments on the technical and amount for research. While the Parties 2006 Reregistration Eligibility Decision economic basis for determining that the approved research as a critical use, their (RED) for methyl bromide, which is uses listed in this rule meet the criteria decisions encouraged the use of implemented through restrictions on of the critical use exemption. The CUNs inventory to meet critical research how methyl bromide products can be detail how each proposed critical use needs. In the corresponding CUE rules, used. This approach does require that meets the criteria listed in paragraph 1 EPA responded to the Parties’ decisions methyl bromide labels include of Decision IX/6, apart from the by reducing the new production/import directions that treated sites be tarped criterion located at (b)(ii), as well as the amounts by the research amount, except for California orchard replant

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where EPA instead requires deep (18 VI. Statutory and Executive Order Reduction Act, 44 U.S.C. 3501 et seq. inches or greater) shank applications. Reviews and has assigned OMB control number The RED also incorporated incentives A. Executive Order 12866: Regulatory 2060–0482. The OMB control numbers for applicators to use high-barrier tarps, Planning and Review and Executive for EPA’s regulations in 40 CFR are such as virtually impermeable film Order 13563: Improving Regulation and listed in 40 CFR part 9. (VIF), by allowing smaller buffer zones Regulatory Review around those sites. In addition to C. Regulatory Flexibility Act minimizing emissions, use of high- Under Executive Order (EO) 12866 The RFA generally requires an agency barrier tarps has the benefit of providing (58 FR 51735, October 4, 1993), this pest control at lower application rates. final rule is a ‘‘significant regulatory to prepare a regulatory flexibility The amount of methyl bromide action’’ because it was deemed to raise analysis of any rule subject to notice- nominated by the United States reflects novel legal or policy issues. and-comment rulemaking requirements the lower application rates necessary Accordingly, EPA submitted this action under the Administrative Procedure Act when using high-barrier tarps, where to the Office of Management and Budget or any other statute unless the agency such tarps are allowed. (OMB) for review under Executive certifies that the rule will not have a EPA will continue to work with the Orders 12866 and 13563 (76 FR 3821, significant economic impact on a U.S. Department of Agriculture— January 21, 2011) and any changes made substantial number of small entities. Agricultural Research Service (USDA– in response to interagency Small entities include small businesses, ARS) to promote emission reduction recommendations have been small organizations, and small techniques. The federal government has documented in the docket for this governmental jurisdictions. For invested substantial resources into best action. purposes of assessing the impacts of this practices for methyl bromide use, B. Paperwork Reduction Act rule on small entities, small entity is including emission reduction practices. defined as: (1) A small business as This action does not impose any new USDA–ARS has a national outreach defined by the Small Business information collection burden. The effort to publicize the best practices. Administration’s regulations at 13 CFR Users of methyl bromide should application, recordkeeping, and 121.201 (see Table below); (2) a small continue to make every effort to reporting requirements have already minimize overall emissions of methyl been established under previous critical governmental jurisdiction that is a bromide to the extent consistent with use exemption rulemakings and this government of a city, county, town, State and local laws and regulations. action does not change any of those school district or special district with a EPA also encourages researchers and existing requirements. The Office of population of less than 50,000; and (3) users who are successfully utilizing Management and Budget (OMB) has a small organization that is any not-for- such techniques to inform EPA of their previously approved the information profit enterprise which is independently experiences and to provide such collection requirements contained in the owned and operated and is not information with their critical use existing regulations at 40 CFR part 82 dominant in its field. applications. under the provisions of the Paperwork

NAICS Small busi- ness size standard (in Category NAICS code SIC code number of employees or millions of dollars)

Agricultural production .. 1112—Vegetable and Melon farming ...... 0171—Berry Crops ...... $0.75 million. 1113—Fruit and Nut Tree Farming ...... 0172—Grapes. 1114—Greenhouse, Nursery, and Floriculture 0173—Tree Nuts. Production. 0175—Deciduous Tree Fruits (except apple orchards and farms). 0179—Fruit and Tree Nuts, NEC. 0181—Ornamental Floriculture and Nursery Products. 0831—Forest Nurseries and Gathering of Forest Products. Storage Uses ...... 115114—Postharvest Crop activities (except ...... $7 million. Cotton Ginning). 311211—Flour Milling ...... 2041—Flour and Other Grain Mill Products 500 employees. 31121—Rice Milling ...... 2044—Rice Milling ...... 500 employees 493110—General Warehousing and Storage 4225—General Warehousing and Storage .... $25.5 million 493130—Farm Product Warehousing and 4221—Farm Product Warehousing and Stor- $25.5 million. Storage. age. Distributors and Appli- 115112—Soil Preparation, Planting and Culti- 0721—Crop Planting, Cultivation, and Protec- $7 million. cators. vating. tion. Producers and Import- 325320—Pesticide and Other Agricultural 2879—Pesticides and Agricultural Chemicals, 500 employees ers. Chemical Manufacturing. NEC.

Agricultural producers of minor crops rule only affects entities that applied to for exemptions from industry consortia. and entities that store agricultural EPA for an exemption to the phaseout On the exemption application, EPA commodities are categories of affected of methyl bromide for 2012. In most asked consortia to describe the number entities that contain small entities. This cases, EPA received aggregated requests and size distribution of entities their

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application covered. EPA estimated that the private sector. Instead, this action H. Executive Order 13211: Actions That 3,218 entities petitioned EPA for an provides an exemption for the Significantly Affect Energy Supply, exemption for the 2005 control period. manufacture and use of a phased out Distribution, or Use EPA revised this estimate in 2011 down compound and would not impose any This rule is not a ‘‘significant energy to 1,800 end users of critical use methyl new requirements on any entities. action’’ as defined in Executive Order bromide. EPA believes that the number Therefore, this action is not subject to 13211, ‘‘Actions Concerning Regulations will continue to decline as growers stop the requirements of sections 202 or 205 That Significantly Affect Energy Supply, applying for critical uses. Since many of the UMRA. This action is also not Distribution, or Use’’ (66 FR 28355 (May applicants did not provide information subject to the requirements of section 22, 2001)) because it is not likely to on the distribution of sizes of entities 203 of UMRA because it contains no have a significant adverse effect on the covered in their applications, EPA regulatory requirements that might supply, distribution, or use of energy. estimated that, based on the above This rule does not pertain to any definition, between one-fourth and one- significantly or uniquely affect small third of the entities may be small governments. segment of the energy production economy nor does it regulate any businesses. In addition, other categories E. Executive Order 13132: Federalism of affected entities do not contain small manner of energy use. Therefore, we businesses based on the above This action does not have federalism have concluded that this rule is not description. implications. It does not have likely to have any adverse energy After considering the economic substantial direct effects on the States, effects. impacts of today’s final rule on small on the relationship between the national I. National Technology Transfer and entities, I certify that this action will not government and the States, or on the Advancement Act have a significant economic impact on distribution of power and Section 12(d) of the National a substantial number of small entities. responsibilities among the various In determining whether a rule has a Technology Transfer and Advancement levels of government, as specified in Act of 1995 (‘‘NTTAA’’), Public Law significant economic impact on a Executive Order 13132. This rule is substantial number of small entities, the 104–113, 12(d) (15 U.S.C. 272 note) expected to affect producers, suppliers, impact of concern is any significant directs EPA to use voluntary consensus importers, and exporters and users of adverse economic impact on small standards in its regulatory activities entities, since the primary purpose of methyl bromide. Thus, Executive Order unless to do so would be inconsistent the regulatory flexibility analyses is to 13132 does not apply to this rule. In the with applicable law or otherwise identify and address regulatory spirit of Executive Order 13132, and impractical. Voluntary consensus alternatives ‘‘which minimize any consistent with EPA policy to promote standards are technical standards (e.g., significant economic impact of the communications between EPA and State materials specifications, test methods, proposed rule on small entities.’’ (5 and local governments, EPA specifically sampling procedures, and business U.S.C. 603–604). Thus, an agency may solicited comment on this action from practices) that are developed or adopted certify that a rule will not have a State and local officials. by voluntary consensus standards significant economic impact on a bodies. NTTAA directs EPA to provide F. Executive Order 13175: Consultation substantial number of small entities if Congress, through OMB, explanations the rule relieves a regulatory burden, or and Coordination With Indian Tribal when the agency decides not to use otherwise has a positive economic effect Governments available and applicable voluntary on all of the small entities subject to the consensus standards. This rulemaking This action does not have tribal does not involve technical standards. rule. Since this rule exempts methyl implications, as specified in Executive bromide for approved critical uses after Therefore, EPA did not consider the use Order 13175 (65 FR 67249, November 9, the phaseout date of January 1, 2005, of any voluntary consensus standards. 2000). This rule does not significantly or this action confers a benefit to users of uniquely affect the communities of J. Executive Order 12898: Federal methyl bromide. EPA estimates in the Actions To Address Environmental Regulatory Impact Assessment found in Indian tribal governments nor does it impose any enforceable duties on Justice in Minority Populations and the docket to this rule that the reduced Low-Income Populations costs resulting from the de-regulatory communities of Indian tribal creation of the exemption are governments. Thus, Executive Order Executive Order 12898 (59 FR 7629 approximately $22 million to $31 13175 does not apply to this action. EPA (Feb. 16, 1994)) establishes federal million on an annual basis (using a 3% specifically solicited additional executive policy on environmental or 7% discount rate respectively). These comment on this action from tribal justice. Its main provision directs reduced costs are dramatic due to the officials. federal agencies, to the greatest extent high value of methyl bromide for crop practicable and permitted by law, to production and agriculture related G. Executive Order No. 13045: make environmental justice part of their activities. We have therefore concluded Protection of Children From mission by identifying and addressing, that this rule would relieve regulatory Environmental Health and Safety Risks as appropriate, disproportionately high and adverse human health or burden for all small entities. EPA interprets EO 13045 (62 F.R. environmental effects of their programs, D. Unfunded Mandates Reform Act 19885, April 23, 1997) as applying only policies, and activities on minority This action contains no Federal to those regulatory actions that concern populations and low-income mandates under the provisions of Title health or safety risks, such that the populations in the United States. II of the Unfunded Mandates Reform analysis required under section 5–501 of EPA has determined that this rule Act of 1995 (UMRA), 2 U.S.C. 1531– the EO has the potential to influence the does not have disproportionately high 1538 for State, local, or tribal regulation. This action is not subject to and adverse human health or governments or the private sector. The EO 13045 because it does not establish environmental effects on minority or action imposes no enforceable duty on an environmental standard intended to low-income populations, because it any State, local or tribal governments or mitigate health or safety risks. affects the level of environmental

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protection equally for all affected Congress and to the Comptroller General PART 82—PROTECTION OF populations without having any of the United States. EPA will submit a STRATOSPHERIC OZONE disproportionately high and adverse report containing this rule and other human health or environmental effects required information to the U.S. Senate, ■ 1. The authority citation for part 82 on any population, including any the U.S. House of Representatives, and continues to read as follows: minority or low-income population. the Comptroller General of the United Any ozone depletion that results from States prior to publication of the rule in Authority: 42 U.S.C. 7414, 7601, 7671– this rule will impact all affected the Federal Register. A Major rule 7671q. populations equally because ozone cannot take effect until 60 days after it ■ depletion is a global environmental is published in the Federal Register. 2. Section 82.8 is amended as follows: problem with environmental and This action not a ‘‘major rule’’ as ■ a. By revising the table in paragraph human effects that are, in general, defined by 5 U.S.C. 804(2). This rule (c)(1); equally distributed across geographical will be effective May 17, 2012. ■ b. By revising paragraph (c)(2) regions of the United States. List of Subjects in 40 CFR Part 82 including the table. K. Congressional Review Act Environmental protection, Chemicals, § 82.8 Grant of essential use allowances The Congressional Review Act, 5 Exports, Imports, Ozone depletion. and critical use allowances. U.S.C. 801 et seq., as added by the Small Dated: May 11, 2012. * * * * * Business Regulatory Enforcement Fairness Act of 1996, generally provides Lisa P. Jackson, (c) * * * Administrator. that before a rule may take effect, the (1) * * * agency promulgating the rule must For the reasons stated in the submit a rule report, which includes a preamble, 40 CFR Part 82 is amended as copy of the rule, to each House of the follows:

2012 Critical 2012 Critical use allow- use allow- Company ances for pre- ances for post- plant uses * harvest uses * (kilograms) (kilograms)

Great Lakes Chemical Corp. A Chemtura Company ...... 425,197 36,499 Albemarle Corp ...... 174,851 15,009 ICL–IP America ...... 96,626 8,294 TriCal, Inc ...... 3,009 258

Total ** ...... 699,683 60,061 * For production or import of Class I, Group VI controlled substance exclusively for the Pre-Plant or Post-Harvest uses specified in appendix L to this subpart. ** Due to rounding, numbers do not add exactly.

(2) Allocated critical stock allowances Helena Chemical Co. Pest Fog Sales Corp. granted for specified control period. The Trical Inc. Western Fumigation following companies are allocated Burnside Services, Inc. critical stock allowances for 2012 on a ICL–IP America TOTAL—263,082 kilograms pro-rata basis in relation to the Trident Agricultural Products ■ 3. Appendix L to Subpart A is revised inventory held by each. Cardinal Professional Products to read as follows: Industrial Fumigant Company Company TriEst Ag Group, Inc. APPENDIX L TO SUBPART A OF Albemarle Chemtura Corp. PART 82—APPROVED CRITICAL Degesch America, Inc. Pacific Ag Supplies Inc. USES AND LIMITING CRITICAL Prosource One Univar CONDITIONS FOR THOSE USES FOR Bill Clark Pest Control, Inc. Crop Production Services THE 2012 CONTROL PERIOD

Limiting critical conditions that exist, or that the Approved critical uses Approved critical user and location of use approved critical user reasonably expects could arise without methyl bromide fumigation

Column A Column B Column C

PRE–PLANT USES

Cucurbits ...... (a) Growers in Delaware and Maryland ...... Moderate to severe soilborne disease infestation. (b) Growers in Georgia and Southeastern U.S. limited Moderate to severe yellow or purple nutsedge infesta- to growing locations in Alabama, Arkansas, Ken- tion. tucky, Louisiana, Mississippi, North Carolina, South Moderate to severe soilborne disease infestation. Carolina, Tennessee, and Virginia. Moderate to severe root knot nematode infestation. Eggplant ...... (a) Florida growers ...... Moderate to severe yellow or purple nutsedge infesta- tion. Moderate to severe soilborne disease infestation. Restrictions on alternatives due to karst topographical features and soils not supporting seepage irrigation.

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Limiting critical conditions that exist, or that the Approved critical uses Approved critical user and location of use approved critical user reasonably expects could arise without methyl bromide fumigation

Column A Column B Column C

(b) Georgia growers ...... Moderate to severe yellow or purple nutsedge infesta- tion. Moderate to severe nematode infestation. Moderate to severe pythium collar, crown and root rot. Moderate to severe southern blight infestation. Restrictions on alternatives due to karst topographical features. Forest Nursery Seedlings .... (a) Southern Forest Nursery Management Cooperative Moderate to severe yellow or purple nutsedge infesta- (Growers in Alabama, Arkansas, Florida, Georgia, tion. Kentucky, Louisiana, Mississippi, North Carolina, Moderate to severe soilborne disease infestation. Oklahoma, South Carolina, Tennessee, Texas, and Moderate to severe nematode infestation. Virginia). (b) Northeastern Forest and Conservation Nursery As- Moderate to severe weed infestation including purple sociation (Government-owned seedling nurseries in and yellow nutsedge infestation. Illinois, Indiana, Kentucky, Maryland, Missouri, New Moderate to severe Canada thistle infestation. Jersey, Ohio, Pennsylvania, West Virginia, and Wis- Moderate to severe nematode infestation. consin). Moderate to severe soilborne disease infestation. (c) Michigan Seedling Growers ...... Moderate to severe soilborne disease infestation. Moderate to severe Canada thistle infestation. Moderate to severe nutsedge infestation. Moderate to severe nematode infestation. Nursery Stock (Fruit, Nut, (a) Members of the California Association of Nursery Moderate to severe nematode infestation. Flower). and Garden Centers representing Deciduous Tree Medium to heavy clay soils. Fruit Growers. Local township limits prohibiting 1,3-dichloropropene. (b) California rose nurseries ...... Moderate to severe nematode infestation. Local township limits prohibiting 1,3-dichloropropene. Orchard Replant...... California stone fruit, table and raisin grape, wine Moderate to severe nematode infestation. grape, walnut, and almond growers. Moderate to severe soilborne disease infestation. Replanted orchard soils to prevent orchard replant dis- ease. Medium to heavy soils. Local township limits prohibiting 1,3-dichloropropene. Ornamentals ...... (a) California growers ...... Moderate to severe soilborne disease infestation. Moderate to severe nematode infestation. Local township limits prohibiting 1,3-dichloropropene. (b) Florida growers ...... Moderate to severe weed infestation. Moderate to severe soilborne disease infestation. Moderate to severe nematode infestation. Restrictions on alternatives due to karst topographical features and soils not supporting seepage irrigation. Peppers ...... (a) Alabama, Arkansas, Kentucky, Louisiana, Mis- Moderate to severe yellow or purple nutsedge infesta- sissippi, North Carolina, South Carolina, Tennessee, tion. and Virginia growers. Moderate to severe nematode infestation. Moderate to severe pythium root, collar, crown and root rots. (b) Florida growers ...... Moderate to severe yellow or purple nutsedge infesta- tion. Moderate to severe soilborne disease infestation. Moderate to severe nematode infestation. Restrictions on alternatives due to karst topographical features and soils not supporting seepage irrigation. (c) Georgia growers ...... Moderate to severe yellow or purple nutsedge infesta- tion. Moderate to severe nematode infestation, or moderate to severe pythium root and collar rots. Moderate to severe southern blight infestation, crown or root rot. Restrictions on alternatives due to karst topographical features. Strawberry Fruit ...... (a) California growers ...... Moderate to severe black root rot or crown rot. Moderate to severe yellow or purple nutsedge infesta- tion. Moderate to severe nematode infestation. Local township limits prohibiting 1,3-dichloropropene. Time to transition to an alternative.

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Limiting critical conditions that exist, or that the Approved critical uses Approved critical user and location of use approved critical user reasonably expects could arise without methyl bromide fumigation

Column A Column B Column C

(b) Florida growers ...... Moderate to severe yellow or purple nutsedge infesta- tion. Moderate to severe nematode infestation. Moderate to severe soilborne disease infestation. Carolina geranium or cut-leaf evening primrose infesta- tion. Restrictions on alternatives due to karst topographical features and soils not supporting seepage irrigation. (c) Alabama, Arkansas, Georgia, Illinois, Kentucky, Moderate to severe yellow or purple nutsedge infesta- Louisiana, Maryland, Mississippi, Missouri, New Jer- tion. sey, North Carolina, Ohio, South Carolina, Ten- Moderate to severe nematode infestation. nessee, and Virginia growers. Moderate to severe black root and crown rot. Strawberry Nurseries ...... California growers ...... Moderate to severe soilborne disease infestation. Moderate to severe yellow or purple nutsedge infesta- tion. Moderate to severe nematode infestation. Sweet Potato Slips ...... California growers ...... Local township limits prohibiting 1,3-dichloropropene. Tomatoes ...... (a) Alabama, Arkansas, Florida, Georgia, Kentucky, Moderate to severe yellow or purple nutsedge infesta- Louisiana, Mississippi, North Carolina, South Caro- tion. lina, Tennessee, and Virginia growers. Moderate to severe soilborne disease infestation. Moderate to severe nematode infestation. Restrictions on alternatives due to karst topographical features and, in Florida, soils not supporting seepage irrigation. (b) Maryland growers ...... Moderate to severe fungal pathogen infestation.

POST–HARVEST USES

Food Processing ...... (a) Rice millers in the U.S. who are members of the Moderate to severe beetle, weevil, or moth infestation. USA Rice Millers Association. Presence of sensitive electronic equipment subject to corrosion. Time to transition to an alternative. (b) Pet food manufacturing facilities in the U.S. who are Moderate to severe beetle, moth, or cockroach infesta- members of the Pet Food Institute. tion. Presence of sensitive electronic equipment subject to corrosion. Time to transition to an alternative. (c) Members of the North American Millers’ Association Moderate to severe beetle infestation. in the U.S. Presence of sensitive electronic equipment subject to corrosion. Time to transition to an alternative. (d) Members of the National Pest Management Asso- Mite infestation. ciation treating cheese storage facilities. Commodities ...... California entities storing walnuts, dried plums, figs, rai- Rapid fumigation required to meet a critical market win- sins, and dates (in Riverside county only) in Cali- dow, such as during the holiday season. fornia. Dry Cured Pork Products ..... Members of the National Country Ham Association and Red legged ham beetle infestation. the Association of Meat Processors, Nahunta Pork Cheese/ham skipper infestation. Center (North Carolina), and Gwaltney and Smithfield Dermested beetle infestation. Inc. Ham mite infestation.

[FR Doc. 2012–11972 Filed 5–16–12; 8:45 am] ACTION: Direct final rule. regulations that will be subject to the BILLING CODE 6560–50–P EPA’s inspection and enforcement. The SUMMARY: The Solid Waste Disposal Act, rule codifies in the regulations the prior as amended, commonly referred to as approval of Oklahoma’s hazardous ENVIRONMENTAL PROTECTION the Resource Conservation and waste management program and AGENCY Recovery Act (RCRA), allows the incorporates by reference authorized Environmental Protection Agency (EPA) provisions of the State’s statutes and 40 CFR Part 272 to authorize States to operate their regulations. hazardous waste management programs [EPA–R06–2011–0484 FRL–9652–9a] in lieu of the Federal program. The EPA DATES: This regulation is effective July Oklahoma: Incorporation by Reference uses the regulations entitled ‘‘Approved 16, 2012, unless the EPA receives of Approved State Hazardous Waste State Hazardous Waste Management adverse written comment on this Management Program Programs’’ to provide notice of the regulation by the close of business June authorization status of State programs 18, 2012. If the EPA receives such AGENCY: Environmental Protection and to incorporate by reference those comments, it will publish a timely Agency (EPA). provisions of the State statutes and withdrawal of this immediate final rule

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in the Federal Register informing the homepage at http://www.spa.gov/ FR 39274), June 3, 1991 (56 FR 13411), public that this rule will not take effect. epahome/dockets.htm). November 19, 1991 (56 FR 47675), The Director of the Federal Register You can view and copy the November 29, 1993 (58 FR 50854), approves this incorporation by reference documents that form the basis for this December 21, 1994 (59 FR 51116), April as of July 16, 2012 in accordance with codification and associated publicly 27, 1995 (60 FR 2699), March 14, 1997 5 U.S.C. 552(a) and 1 CFR part 51. available materials from 8:30 a.m. to (62 FR 12100), July 14, 1998 (63 FR ADDRESSES: Submit your comments by 4:00 p.m. Monday through Friday at the 23673), November 23, 1998 (63 FR one of the following methods: following location: EPA Region 6, 1445 50528), February 8, 1999 (63 FR 67800), 1. Federal eRulemaking Portal: http:// Ross Avenue, Dallas, Texas, 75202– March 30, 2000 (65 FR 16528), July 10, www.regulations.gov. Follow the on-line 2733, phone number (214) 665–8533 or 2000 (65 FR 29981) March 5, 2001 (66 instructions for submitting comments. (214) 665–8178. Interested persons FR 28), June 9, 2003 (68 FR 17308), 2. Email: [email protected]. wanting to examine these documents April 6, 2009 (74 FR 5994), and May 6, 3. Mail: Alima Patterson, Region 6, should make an appointment with the 2011 (76 FR 18927). The EPA Regional Authorization Coordinator, or office at least two weeks in advance. incorporated by reference Oklahoma’s Julia Banks, State/Tribal Oversight FOR FURTHER INFORMATION CONTACT: then authorized hazardous waste Section (6PD–O), Multimedia Planning Alima Patterson, Region 6 Regional program effective December 13, 1993 and Permitting Division, EPA Region 6, Authorization Coordinator or Julia (58 FR 52679), July 14, 1998 (63 FR 1445 Ross Avenue, Dallas, Texas 75202– Banks, Codification Coordinator, State/ 23673), October 25, 1999 (64 FR 46567), 2733. Tribal Oversight Section (6PD–O), October 27, 2003 (68 FR 51488), and 4. Hand Delivery or Courier: Deliver Multimedia Planning and Permitting August 27, 2010 (75 FR 36546). In this your comments to Alima Patterson, Division, (214) 665–8533 or (214) 665– document, the EPA is revising Subpart Region 6, Regional Authorization 8178, EPA Region 6, 1445 Ross Avenue, LL of 40 CFR part 272 to include the Coordinator, State/Tribal Oversight Dallas, Texas 75202–2733, and email authorization revision actions effective Section (6PD–O), Multimedia Planning address [email protected] or April 6, 2009 (74 FR 5994) and June 6, and Permitting Division, EPA Region 6, [email protected]. 2011 (76 FR 18927). 1445 Ross Avenue, Dallas, Texas 75202– SUPPLEMENTARY INFORMATION: C. What codification decisions have we 2733. made in this rule? A. What is codification? Instructions: Direct your comments to The purpose of this Federal Register Docket ID No. EPA–R06–RCRA–2011– Codification is the process of placing document is to codify Oklahoma’s base 0484. EPA’s policy is that all comments a State’s statutes and regulations that hazardous waste management program received will be included in the public comprise the State’s authorized revisions RCRA Clusters XVII through docket without change, including hazardous waste management program XVIII. The EPA provided notices and personal information provided, unless into the Code of Federal Regulations opportunity for comments on the the comment includes information (CFR). Section 3006(b) of RCRA, as Agency’s decisions to authorize the claimed to be Confidential Business amended, allows the Environmental Oklahoma program, and the EPA is not Information (CBI) or other information Protection Agency (EPA) to authorize now reopening the decisions, nor whose disclosure is restricted by statute. State hazardous waste management requesting comments, on the Oklahoma Do not submit information that you programs to operate in lieu of the authorizations as published in the consider to be CBI or otherwise Federal hazardous waste management Federal Register notices specified in protected through www.regulations.gov, regulatory program. The EPA codifies its Section B of this document. or email. The Federal authorization of State programs in 40 This document incorporates by www.regulations.gov Web site is an CFR part 272 and incorporates by reference Oklahoma’s hazardous waste ‘‘anonymous access’’ system, which reference State statutes and regulations statutes and regulations and clarifies means the EPA will not know your that the EPA will enforce under sections which of these provisions are included identity or contact information unless 3007 and 3008 of RCRA and any other in the authorized and Federally you provide it in the body of your applicable statutory provisions. enforceable program. By codifying comment. If you send an email The incorporation by reference of Oklahoma’s authorized program and by comment directly to the EPA without State authorized programs in the CFR amending the Code of Federal going through www.regulations.gov, should substantially enhance the Regulations, the public will be more your email address will be public’s ability to discern the current easily able to discern the status of automatically captured and included as status of the authorized State program Federally approved requirements of the part of the comment that is placed in the and State requirements that can be Oklahoma hazardous waste public docket and made available on the Federally enforced. This effort provides management program. Internet. If you submit an electronic clear notice to the public of the scope The EPA is incorporating by reference comment, the EPA recommends that of the authorized program in each State. the Oklahoma authorized hazardous you include your name and other waste program in subpart LL of 40 CFR contact information in the body of your B. What is the history of the part 272. Section 272.1851 incorporates comment and with any disk or CD–ROM authorization and codification of by reference Oklahoma’s authorized you submit. If the EPA cannot read your Oklahoma’s hazardous waste hazardous waste statutes and comment due to technical difficulties, management program? regulations. Section 272.1851 also and cannot contact you for clarification, Oklahoma initially received Final references the statutory provisions the EPA may not be able to consider authorization effective January 10, 1985, (including procedural and enforcement your comment. Electronic files should (49 FR 50362) to implement its Base provisions) which provide the legal avoid the use of special characters, any Hazardous Waste Management program. basis for the State’s implementation of form of encryption, and be free of any Subsequently, the EPA approved the hazardous waste management defects or viruses. (For additional additional program revision program, the Memorandum of information about the EPA’s public applications effective on June 18, 1990 Agreement, the Attorney General’s docket, visit the EPA Docket Center (55 FR 14280), November 27, 1990 (55 Statements and the Program

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Description, which are approved as part 1, 1991 (56 FR 3978); February 13, 1991 requirements, the EPA can only enforce of the hazardous waste management (56 FR 5910); April 2, 1991 (56 FR the HSWA requirements and not the program under Subtitle C of RCRA. 13406); May 1, 1991 (56 FR 19951); State analogs. The EPA will not codify December 23, 1991 (56 FR 66365); June those State requirements until the State D. What is the effect of Oklahoma’s 29, 1995 (60 FR 33912), May 26, 1998 receives authorization for those codification on enforcement? (63 FR 28556), June 14, 2005 (70 FR requirements. The EPA retains its authority under 34538), August 1, 2005 (70 FR 44150). G. Statutory and Executive Order statutory provisions, including but not Therefore, these Federal amendments Reviews limited to, RCRA sections 3007, 3008, included in Oklahoma’s adoption by 3013 and 7003, and other applicable reference at 252:205–3–2(b) through The Office of Management and Budget statutory and regulatory provisions to 252:205–3–2(m) of the Oklahoma (OMB) has exempted this action from undertake inspections and enforcement Administrative Code, are not part of the the requirements of Executive Order actions and to issue orders in authorized State’s authorized program and are not 12866 (58 FR 51735, October 4, 1993), States. With respect to these actions, the part of the incorporation by reference and therefore this action is not subject EPA will rely on Federal sanctions, addressed by this Federal Register to review by OMB. The reference to Federal inspection authorities, and document. Executive Order 13563 (76 FR 3821, Federal procedures rather than any With respect to any requirement January 21, 2011) is also exempt from authorized State analogues to these pursuant to the Hazardous and Solid review under Executive order 12866 (56 provisions. Therefore, the EPA is not Waste Amendments of 1984 (HSWA) for FR 51735, October 4, 1993). This rule incorporating by reference such which the State has not yet been incorporates by reference Oklahoma’s particular, approved Oklahoma authorized, the EPA will continue to authorized hazardous waste procedural and enforcement authorities. enforce the Federal HSWA standards management regulations and imposes Section 272.1851(c)(2) of 40 CFR lists until the State is authorized for these no additional requirements beyond the statutory provisions which provide provisions. those imposed by State law. the legal basis for the State’s Accordingly, I certify that this action F. What will be the effect of Federal implementation of the hazardous waste will not have a significant economic HSWA requirements on the impact on a substantial number of small management program, as well as those codification? procedural and enforcement authorities entities under the Regulatory Flexibility that are part of the State’s approved The EPA is not amending 40 CFR part Act (5 U.S.C. 601 et seq.). Because this program, but these are not incorporated 272 to include HSWA requirements and rule merely incorporates by reference by reference. prohibitions that are implemented by certain existing State hazardous waste the EPA. Section 3006(g) of RCRA management program requirements E. What State provisions are not part of provides that any HSWA requirement or which the EPA already approved under the codification? prohibition (including implementing 40 CFR part 271, and with which The public needs to be aware that regulations) takes effect in authorized regulated entities must already comply, some provisions of Oklahoma’s and not authorized States at the same it does not contain any unfunded hazardous waste management program time. A HSWA requirement or mandate or significantly or uniquely are not part of the Federally authorized prohibition supersedes any less affect small governments, as described State program. These non-authorized stringent or inconsistent State provision in the Unfunded Mandates Reform Act provisions include: which may have been previously of 1995 (Pub. L. 104B–4). (1) Provisions that are not part of the authorized by the EPA (50 FR 28702, This action will not have substantial RCRA subtitle C program because they July 15, 1985). The EPA has the direct effects on the States, on the are ‘‘broader in scope’’ than RCRA authority to implement HSWA relationship between the national subtitle C (see 40 CFR 271.1(i)); requirements in all States, including government and the States, or on the (2) Federal rules for which Oklahoma authorized States, until the States distribution of power and is not authorized, but which have been become authorized for such requirement responsibilities among the various incorporated into the State regulations or prohibition. Authorized States are levels of government, as specified in because of the way the State adopted required to revise their programs to Executive Order 13132 (64 FR 43255, Federal regulations by reference. adopt the HSWA requirements and August 10, 1999), because it merely State provisions that are ‘‘broader in prohibitions, and then to seek incorporates by reference existing scope’’ than the Federal program are not authorization for those revisions authorized State hazardous waste part of the RCRA authorized program pursuant to 40 CFR part 271. management program requirements and the EPA will not enforce them. Instead of amending the 40 CFR part without altering the relationship or the Therefore, they are not incorporated by 272 every time a new HSWA provision distribution of power and reference in 40 CFR part 272. For takes effect under the authority of RCRA responsibilities established by RCRA. reference and clarity, 40 CFR section 3006(g), the EPA will wait until This action also does not have Tribal 272.1851(c)(3) lists the Oklahoma the State receives authorization for its implications within the meaning of regulatory provisions which are analog to the new HSWA provision Executive Order 13175 (65 FR 67249, ‘‘broader in scope’’ than the Federal before amending the State’s 40 CFR part November 6, 2000). program and which are not part of the 272 incorporation by reference. Until This action also is not subject to authorized program being incorporated then, persons wanting to know whether Executive Order 13045 (62 FR 19885, by reference. ‘‘Broader in scope’’ a HSWA requirement or prohibition is April 23, 1997), because it is not provisions cannot be enforced by the in effect should refer to 40 CFR 271.1(j), economically significant and it does not EPA; the State, however, may enforce as amended, which lists each such make decisions based on environmental such provisions under State law. provision. health or safety risks. This rule is not Oklahoma has adopted but is not Some existing State requirements may subject to Executive Order 13211, authorized for the Federal rules be similar to the HSWA requirement ‘‘Actions Concerning Regulations That published in the Federal Register on implemented by the EPA. However, Significantly Affect Energy Supply, October 5, 1990 (55 FR 40834); February until the EPA authorizes those State Distribution, or Use’’ (66 FR 28355, May

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22, 2001), because it is not a significant Dated: March 16, 2012. paragraph from the State’s Office of regulatory action under Executive Order Al Armendariz, Administrative Rules, Secretary of State, 12866. Regional Administrator, Region 6. P.O. Box 53390, Oklahoma City, OK The requirements being codified are For the reasons set forth in the 73152–3390; Phone number: 405–521– the result of Oklahoma’s voluntary preamble, 40 CFR part 272 is amended 4911; Web site: www.sos.state.ok.us/ participation in the EPA’s State program _ as follows: oar/oar welcome.htm. The statutes are authorization process under RCRA available from West Publishing Subtitle C. Thus, the requirements of PART 272—APPROVED STATE Company, 610 Opperman Drive, P.O. section 12(d) of the National HAZARDOUS WASTE MANAGEMENT Box 64526, St. Paul, Minnesota 55164– Technology Transfer and Advancement PROGRAMS 0526; Phone: 1–800–328–4880; Web Act of 1995 (15 U.S.C. 272 note) do not site: http://west.thomson.com. You may apply. As required by section 3 of ■ 1. The authority citation for part 272 inspect a copy at EPA Region 6, 1445 Executive Order 12988 (61 FR 4729, continues to read as follows: Ross Avenue, Dallas, Texas 75202 February 7, 1996), in issuing this rule, Authority: Sections 2002(a), 3006, and (Phone number (214) 665–8533), or at the EPA has taken the necessary steps 7004(b) of the Solid Waste Disposal Act, as the National Archives and Records to eliminate drafting errors and amended by the Resource Conservation and Administration (NARA). For ambiguity, minimize potential litigation, Recovery Act, as amended, 42 U.S.C. 6912(a), information on the availability of this and provide a clear legal standard for 6926, and 6974(b). material at NARA, call 202–741–6030, affected conduct. The EPA has complied or go to: http://www.archives.gov/ ■ 2. Revise § 272.1851 to read as with Executive Order 12630 (53 FR federal-register/cfr/ibr-locations.html. follows: 8859, March 15, 1988) by examining the (i) The binder entitled ‘‘EPA takings implications of the rule in § 272.1851 Oklahoma State-administered Approved Oklahoma Statutory and accordance with the ‘‘Attorney program: Final authorization. Regulatory Requirements Applicable to General’s Supplemental Guidelines for (a) Pursuant to section 3006(b) of the Hazardous Waste Management the Evaluation of Risk and Avoidance of RCRA, 42 U.S.C. 6926(b), the EPA Program’’, dated May 2011. Unanticipated Takings’’ issued under granted Oklahoma final authorization (ii) [Reserved] the executive order. This rule does not for the following elements as submitted (2) The following provisions provide impose an information collection to EPA in Oklahoma’s base program the legal basis for the State’s burden under the provisions of the application for final authorization implementation of the hazardous waste Paperwork Reduction Act of 1995 (44 management program, but they are not U.S.C. 3501 et seq.). which was approved by EPA effective being incorporated by reference and do The Congressional Review Act, 5 on January 10, 1985. Subsequent not replace Federal authorities: U.S.C. 801 et seq., as amended by the program revision applications were Small Business Regulatory Enforcement approved effective on June 18, 1990, (i) Oklahoma Environmental Crimes Fairness Act of 1996, generally provides November 27, 1990, June 3, 1991, Act, as amended through July 1, 2009, that before a rule may take effect, the November 19, 1991, November 29, 1993, 21 Oklahoma Statutes (O.S.), Sections agency promulgating the rule must December 21, 1994, April 27, 1995, 1230.1 et seq. submit a rule report, which includes a March 14, 1997, July 14, 1998 and (ii) Oklahoma Open Meetings Act, as copy of the rule, to each House of the November 23, 1998, February 8, 1999, amended through July 1, 2009, 25 Congress and to the Comptroller General March 30, 2000, July 10, 2000, March 5, Oklahoma Statutes (O.S.), Sections 301 of the United States. The EPA will 2001, June 9, 2003, April 6, 2009, and et seq. submit a report containing this May 6, 2011. (iii) Oklahoma Statutes, Title 27A, document and other required (b) The State of Oklahoma has ‘‘Environment and Natural Resources’’, information to the U.S. Senate, the U.S. primary responsibility for enforcing its as amended through July 1, 2009: House of Representatives, and the hazardous waste management program. Chapter 1, ‘‘Oklahoma Environmental Comptroller General of the United However, EPA retains the authority to Quality Act’’, Sections 1–1–101 et seq.; States prior to publication in the exercise its inspection and enforcement Chapter 2, ‘‘Oklahoma Environmental Federal Register. A major rule cannot authorities in accordance with sections Quality Code’’, Sections 2–2–101, 2–2– take effect until 60 days after it is 3007, 3008, 3013, 7003 of RCRA, 42 104, 2–2–201, 2–3–101(F)(1), 2–3–104, published in the Federal Register. This U.S.C. 6927, 6928, 6934, 6973, and any 2–3–202, 2–3–501, 2–3–502, 2–3–503, action is not a ‘‘major rule’’ as defined other applicable statutory and 2–3–504; ‘‘Oklahoma Hazardous Waste by 5 U.S.C. 804(2). This action will be regulatory provisions, regardless of Management Act’’, Sections 2–7–102, 2– effective July 16, 2012. whether the State has taken its own 7–104, 2–7–105 (except 2–7–105(27), 2– actions, as well as in accordance with 7–105(29) and 2–7–105(34)), 2–7–106, List of Subjects in 40 CFR Part 272 other statutory and regulatory 2–7–107, 2–7–108(B)(2), 2–7–109, 2–7– Environmental protection, provisions. 110(A), 2–7–111(C)(2)(b) and (c), 2–7– Administrative practice and procedure, (c) State Statutes and Regulations. (1) 111(C)(3), 2–7–113.1, 2–7–115, 2–7– Confidential business information, The Oklahoma statutes and regulations 116(A), 2–7–116(G), 2–7–116(H)(1), 2– Hazardous waste, Hazardous waste cited in paragraph (c)(1)(i) of this 7–117, 2–7–123, 2–7–126, 2–7–129, 2– transportation, Incorporation by section are incorporated by reference as 7–130, 2–7–131, 2–7–132, and 2–7–133; reference, Indian lands, part of the hazardous waste ‘‘Oklahoma Uniform Environmental Intergovernmental relations, Penalties, management program under subtitle C Permitting Act’’, Sections 2–14–101 et Reporting and recordkeeping of RCRA, 42 U.S.C. 6921 et seq. The seq. requirements, Water pollution control, Director of the Federal Register (iv) Oklahoma Open Records Act, as Water supply. approves this incorporation by reference amended through July 1, 2009, 51 Authority: This action is issued under the in accordance with 5 U.S.C. 552(a) and Oklahoma Statutes (O.S.), Sections authority of Sections 2002(a), 3006 and 1 CFR part 51. You may obtain copies 24A.1 et seq. 7004(b) of the Solid Waste Disposal Act as of the Oklahoma regulations that are (v) Oklahoma Administrative amended, 42 U.S.C. 6912(a), 6926, 6974(b). incorporated by reference in this Procedures Act, as amended through

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July 1, 2009, 75 Oklahoma Statutes scope than the Federal program, are not ‘‘Reuse’’, 252:205–1–2 ‘‘Speculative (O.S.), Sections 250 et seq. part of the authorized program, and are accumulation’’, 252:205–1–2 ‘‘Transfer (vi) The Oklahoma Administrative not incorporated by reference: facility’’, 252:205–1–2 ‘‘Transfer Code (OAC), Title 252, Chapter 205, (i) Oklahoma Hazardous Waste station’’, 252:205–1–4(e); Subchapter 5, Hazardous Waste Management, effective Management Act, as amended, 27A Section 252:205–5–1(4), Subchapter 15; July 1, 2009: Subchapter 1, Sections Oklahoma Statutes (O.S.) as amended Subchapter 17; Subchapter 21; 252:205–1–1(b), 252:205–1–3(a) and (b), through July 1, 2009, Sections 2–7–119, Subchapter 23; and 252:205 Appendices 252:205–1–4(a)–(d); Subchapter 3, 2–7–120, 2–7–121, 2–7–121.1 and 2–7– B, C and D. Sections 252:205–3–2(a) introductory 134. paragraph, 252:205–3–2(a)(1) and (ii) The Oklahoma Administrative (4) Unauthorized State Amendments. 252:205–3–2(a)(3); Subchapter 11, Code (OAC), Title 252, Chapter 205, The State’s adoption of the Federal rules Section 252:205–11–3. effective July 1, 2009: Subchapter 1, listed in the following table is not (3) The following statutory and Sections 252:205–1–1(c)(2) and (3), approved by the EPA and are, therefore, regulatory provisions are broader in 252:205–1–2 ‘‘RRSIA’’. 252:205–1–2 not enforceable:

Federal Register Publication Federal requirement reference date

Toxicity Characteristics; Hydrocarbon Recovery Operations ...... 55 FR 40834 ...... 10/5/90 56 FR 3978 ...... 2/1/91 56 FR 13406 ...... 4/2/91 Toxicity Characteristics; Chlorofluorocarbon Refrigerants ...... 56 FR 5910 ...... 2/13/91 Administrative Stay for K069 Listing ...... 56 FR 19951 ...... 5/1/91 Amendments to Interim Status Standards for Downgradient Ground-water Monitoring Well Loca- 56 FR 66365 ...... 12/23/91 tions. Removal of Legally Obsolete Rules ...... 60 FR 33912 ...... 6/29/95 Mineral Processing Secondary Materials Exclusion.—Amendments to 40 CFR ...... 63 FR 28556 ...... 5/26/98 Methods Innovation: SW–846 ...... 70 FR 34538 ...... 6/14/05 70 FR 44150 ...... 8/1/05

(5) Memorandum of Agreement. The 3. Appendix A to Part 272 is amended 252:205–5–1(4)), 252:205–5–2 through Memorandum of Agreement between by revising the listing for ‘‘Oklahoma’’ 252:205–5–5; Subchapter 7, Sections EPA Region 6 and the State of to read as follows: 252:205–7–2 and 252:205–7–4 (except the phrase ‘‘or in accordance with 252:205–15– Oklahoma, signed by the EPA Regional Appendix A to part 272—State 1(d)); Subchapter 9, Sections 252:205–9–1 Administrator on March 11, 2011, is Requirements through 252:205–9–4; Subchapter 11, referenced as part of the authorized Sections 252:205–11–1(a) (except the word hazardous waste management program * * * * * ‘‘recycling’’), 252:205–11–1(b)–(e) and under subtitle C of RCRA, 42 U.S.C. Oklahoma 252:205–11–2; and Subchapter 13, Sections 252:205–13–1(a)–(e), as published by the 6921 et seq. The statutory provisions include: State’s Office of Administrative Rules, (6) Statement of Legal Authority. Oklahoma Hazardous Waste Management Act, as amended, 27A Oklahoma Statute Secretary of State, P.O. Box 53390, Oklahoma ‘‘Attorney General’s Statement for Final (O.S.) 1997 Edition (unless otherwise City, OK 73152–3390; Phone number: 405– Authorization’’, signed by the Attorney 521–4911;Web site: www.sos.state.ok.us/oar/ specified), Sections 2–7–103 (2008 _ General of Oklahoma January 20, 1984 supplement), 2–7–108(A) (2010 Annual oar welcome.htm. and revisions, supplements and Cumulative Pocket Part), 2–7–108(B)(1) (2010 * * * * * addenda to that Statement dated January Annual Cumulative Pocket Part), 2–7– [FR Doc. 2012–11875 Filed 5–16–12; 8:45 am] 14, 1988 (as amended July 20, 1989); 108(B)(3) (2010 Annual Cumulative Pocket BILLING CODE 6560–50–P Part), 2–7–108(C) (2010 Annual Cumulative December 22, 1988 (as amended June 7, Pocket Part), 2–7–110(B), 2–7–110(C), 2–7– 1989 and August 13, 1990); November 111(A), 2–7–111(B), 2–7–111(C)(1), 2–7– 20, 1989; November 16, 1990; November 111(C)(2)(a), 2–7–111(D), 2–7–111(E), 2–7– DEPARTMENT OF HEALTH AND 6, 1992; June 24, 1994; December 8, 112, 2–7–116(B) through 2–7–116(F), 2–7– HUMAN SERVICES 1994; March 4, 1996; April 15, 1997; 116(H)(2), 2–7–118, 2–7–124, 2–7–125 (2010 45 CFR Part 153 February 6, 1998, December 2, 1998, Annual Cumulative Pocket Part), 2–7–127 October 15, 1999, May 31, 2000, October and 2–10–301(G) (2010 Annual Cumulative [CMS–9975–CN] Pocket Part), as published by West 15, 2001, June 27, 2003, March 1, 2005, Publishing Company, 610 Opperman Drive, RIN 0938–AR07 July 12, 2005, July 03, 2006, August 25, P.O. Box 64526, St. Paul, Minnesota 55164 2008, and March 26, 2010 are referenced 0526; Phone: 1–800–328–4880; Web site: Patient Protection and Affordable Care as part of the authorized hazardous http://west.thomson.com. Act; Standards Related to waste management program under The regulatory provisions include: Reinsurance, Risk Corridors, and Risk subtitle C of RCRA, 42 U.S.C. 6921 et The Oklahoma Administrative Code Adjustment; Correction (OAC), Title 252, Chapter 205, effective July seq. 1, 2009: Subchapter 1, Sections 252:205–1– AGENCY: Department of Health and (7) Program Description. The Program 1(a), 252:205–1–1(c) introductory paragraph, Human Services. Description and any other materials 252:205–1–1(c)(1), 252:205–1–2 introductory ACTION: Final rule; correction. submitted as supplements thereto are paragraph, 252:205–1–2 ‘‘OHWMA’’, 252:205–1–2 ‘‘Post-closure permit’’, 252:205– referenced as part of the authorized 1–3(c); Subchapter 3, Sections 252:205–3–1, SUMMARY: This document corrects a hazardous waste management program 252:205–3–2(a)(2), 252:205–3–2(b)–(n), technical error that appeared in the final under subtitle C of RCRA, 42 U.S.C. 252:205–3–4, 252:205–3–5 and 252:205–3–6; rule with comment period published in 6921 et seq. Subchapter 5, Sections 252:205–5–1 (except the Federal Register on March 23, 2012

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entitled, ‘‘Patient Protection and final rule that was published on March operating costs for fixed TVBDs and Affordable Care Act; Standards Related 23, 2012 and becomes effective on May allow them to provide greater coverage, to Reinsurance, Risk Corridors, and Risk 22, 2012. The changes are not thus increasing the availability of Adjustment.’’ substantive changes to the standards set wireless broadband services in rural and DATES: Effective Date: This correction is forth in the final rule. Therefore, we underserved areas without increasing effective on May 22, 2012. believe that undertaking further notice the risk of interference to incumbent services. The Commission is also FOR FURTHER INFORMATION CONTACT: Jeff and comment procedures to incorporate Wu at (301) 492–4416. Wakina Scott at this correction and delay the effective revising and amending several of its (301) 492–4393. date for this change is unnecessary. In rules to better effectuate the addition, we believe it is important for Commission’s earlier decisions in this SUPPLEMENTARY INFORMATION: the public to have the correct docket and to remove ambiguities. I. Background information as soon as possible, and DATES: Effective June 18, 2012. In Federal Register Doc. 2012–6594 of believe it is contrary to the public FOR FURTHER INFORMATION CONTACT: March 23, 2012 (77 FR 17220–17252), interest to delay the dissemination of it. Hugh L. Van Tuyl, Office of Engineering there was a technical error that is For the reasons stated above, we find and Technology, 202–418–7506, identified and corrected in the there is good cause to waive notice and [email protected]. comment procedures and the 30-day ‘‘Correction of Error’’ section below. The SUPPLEMENTARY INFORMATION: This is a provision in this correction document is delay in the effective date for this summary of the Commission’s Third effective as if it had been included in correction notice. Memorandum Opinion and Order, ET the document published on March 23, IV. Correction of Error Docket No. 04–186 and 02–380, FCC 2012. Accordingly, the correction is 12–36, adopted April 4, 2012 and effective on May 22, 2012. Correction to the Regulations Text released April 5, 2012. The full text of this document is available for II. Summary of Error § 153.220 [Corrected] inspection and copying during normal ■ On page 17248, we inadvertently On page 17248, in the second column; business hours in the FCC Reference made an incorrect cross reference in the under ‘‘paragraph (d) Distribution of Center (Room CY–A257), 445 12th regulations text at § 153.220(d). We are reinsurance contributions,’’ in line 11, Street SW., Washington, DC 20554. The correcting the cross reference from revise the cross reference complete text of this document also may ‘‘§ 153.210(a)(2)(ii)’’ to read ‘‘§ 153.210(a)(2)(ii)’’ to read be purchased from the Commission’s ‘‘§ 153.210(a)(2)(iii)’’ to specify that if a ‘‘§ 153.210(a)(2)(iii)’’. copy contractor, Best Copy and Printing, State contracts with more than one Dated: May 11, 2011. Inc., 445 12th Street SW., Room CY– applicable reinsurance entity, the State Jennifer Cannistra, B402, Washington, DC 20554. The full must notify HHS in the manner and Executive Secretary to the Department. text may also be downloaded at: timeframe specified by HHS of the [FR Doc. 2012–11994 Filed 5–16–12; 8:45 am] www.fcc.gov. People with Disabilities: percentage of reinsurance contributions BILLING CODE 4120–01–P To request materials in accessible received from HHS for the State to be formats for people with disabilities allocated to each applicable reinsurance (braille, large print, electronic files, entity. FEDERAL COMMUNICATIONS audio format), send an email to III. Waiver of Proposed Rulemaking COMMISSION [email protected] or call the Consumer & Governmental Affairs Bureau at 202– We ordinarily publish a notice of 47 CFR Part 15 418–0530 (voice), 202–418–0432 (tty). proposed rulemaking in the Federal Register to provide a period for public [ET Docket No. 04–186 and 02–380; FCC Summary of the Third Memorandum comment before the provisions of a rule 12–36] Opinion and Order take effect in accordance with section 1. In this Order, the Commission Unlicensed Operation in the TV 553(b) of the Administrative Procedure addressed five petitions for Broadcast Band Act (APA) (5 U.S.C. 553(b)). However, reconsideration of its decisions in the we can waive this notice and comment AGENCY: Federal Communications Second Memorandum Opinion and procedure if the Secretary finds, for Commission. Order (‘‘Second MO&O’’), 75 FR 75814, good cause, that the notice and ACTION: Final rule. December 6, 2010, in this proceeding comment process is impracticable, and modified its rules in certain unnecessary, or contrary to the public SUMMARY: This document addresses five respects. In particular, the Commission interest, and incorporates a statement of petitions for reconsideration of the increased the maximum height above the finding and the reasons therefore in Commission’s decisions in the Second average terrain (HAAT) for sites where the notice. Memorandum Opinion and Order fixed devices may operate; modified the Section 553(d) of the APA ordinarily (‘‘Second MO&O’’) in this proceeding adjacent channel emission limits to requires a 30-day delay in effective date and modifies the Commissions rules in specify fixed rather than relative levels; of final rules after the date of their certain respects. In particular, the and slightly increased the maximum publication in the Federal Register. Commission is increasing the maximum permissible power spectral density This 30-day delay in effective date can height above average terrain (HAAT) for (PSD) for each category of TV bands be waived, however, if an agency finds sites where fixed devices may operate; device. These changes will result in there is good cause to do so, and the modifying the adjacent channel decreased operating costs for fixed agency incorporates a statement of the emission limits to specify fixed rather TVBDs and allow them to provide findings and its reasons in the rule than relative levels; and slightly greater coverage, thus increasing the issued. increasing the maximum permissible availability of wireless broadband This document merely corrects power spectral density (PSD) for each services in rural and underserved areas technical and typographic errors in the category of TV bands device. These without increasing the risk of Health Insurance Premium Stabilization changes will result in decreased interference to incumbent services. The

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Commission also revised and amended petitions for reconsideration that it underserved areas. It found that these several of its rules to better effectuate addressed in this order: changes will not increase the risk of the Commission’s earlier decisions in • Restricted fixed TV bands devices interference to incumbent services. The this docket and to remove ambiguities. from operating at locations where the Commission corrected several of its ground level is more than 76 meters rules to better effectuate the Background above the average terrain level in the Commission’s earlier decisions in this 2. In the First Report and Order and area. docket and to remove ambiguities. Further Notice of Proposed Rule Making • Eliminated the requirement that TV 7. Decision. The Commission in this proceeding, 71 FR 66876, and 71 bands devices that incorporate geo- modified its rules to establish a FR 66897, November 17, 2006, location and database access must also maximum HAAT for a fixed device respectively, the Commission allowed listen (sense) to detect the signals of TV antenna of 250 meters and maintained fixed unlicensed devices to operate on stations and low power auxiliary service the limit for fixed device antenna height vacant TV channels, excluding channel stations (wireless microphones). As part AGL at 30 meters. The Commission took 37, and prohibited personal/portable of that change, the Commission also this action because it found that the devices from operating on channels 14– revised the rules in several respects to current rule, which limits fixed TV 20 that are used by public safety reflect use of that method as the only bands devices to sites where the ground operations in some cities. However, it means for determining channel HAAT is no greater than 76 meters, did not adopt final technical rules at availability. These changes include unnecessarily precludes the operation of that time. In the Second Report and requiring Mode I devices to verify fixed TV bands devices at many Order in this proceeding, the channel availability and Mode II devices locations in the country, particularly in Commission adopted rules that allow to verify their operating location at rural and other areas that are currently unlicensed devices to operate in the TV regular time intervals. underserved by broadband services. bands at locations where frequencies are • Modified the rules governing the Under the modifications that the not in use by licensed services. The TV measurement of adjacent channel Commission adopted, a site with an bands consist of six-megahertz channels emissions. elevation of up to 220 meters above designated 2 to 51 in four bands of • Required that information in the TV average terrain could be used with a 30- frequencies in the VHF and UHF regions bands databases be publicly available. meter antenna, or a site with a higher of the radio spectrum (54–72 MHz, 76– 5. The petitions for reconsideration elevation above average terrain could be 88 MHz, 174–216 MHz, and 470–698 raise the following issues: (1) The height used with a shorter antenna, provided MHz). above average terrain (HAAT) limit for the sum of the site elevation above 3. The Commission permitted two TV bands devices; (2) out-of-band average terrain and antenna height categories of unlicensed devices, fixed emission limits; (3) protection of above ground does not exceed 250 and personal/portable unlicensed, to wireless services on TV channel 52; (4) meters. These changes will result in operate in the TV bands. Fixed devices establishment of a new category of fixed lower costs and greater flexibility for must incorporate a geo-location indoor TV bands devices; and (5) the fixed device operators by allowing the capability and a means to access a confidentiality of certain information in use of sites that were previously database that provides a list of available the TV bands database. precluded by the rules and permitting TV channels that may be used at their Discussion greater coverage from each site. This location. Such devices must contact a will increase the availability of wireless database to obtain a channel list before 6. The Commission found that in the broadband services, particularly in rural operating and re-check the database at Second MO&O, it generally established and underserved areas. least once daily. Fixed devices are the appropriate balance between 8. The Commission declined to raise permitted to operate with up to one watt providing for operation of TV bands the limit for fixed device antenna height transmitter power output and may use devices that will make new broadband AGL to 75 meters. It previously an antenna that provides up to 6 dBi of services available to the public while considered and rejected requests to raise gain. Portable devices can operate either protecting incumbent services in the TV this limit in the Second MO&O, noting as ‘‘Mode I’’ or ‘‘Mode II’’. A Mode II bands from interference. Thus, it upheld that the 30-meter height above ground device must incorporate similar geo- the majority of its decisions in the limit was established as a balance location and database access capabilities Second MO&O that are addressed in the between increasing the TV bands device to fixed devices. A Mode I device is not petitions for reconsideration. The transmission range and the need to required to incorporate geo-location or Commission found merit in some of minimize the impact on licensed database access capabilities but instead those requests and therefore modified services. While the Commission obtains the list of available channels on certain rules to enhance TVBD recognized the argument that an which it can operate from either a fixed operations, particularly in rural and increased antenna height above ground or Mode II device that has database underserved areas. In particular, it limit could improve TV bands device access. Personal/portable devices are increased the maximum height above range in certain circumstances, it found permitted to operate with up to 100 mW average terrain (HAAT) of sites where that the Commission appropriately took EIRP except when operating on fixed devices may operate, modified the a conservative approach to minimize the channels adjacent to a TV service, in adjacent channel (out-of-band) emission potential for interference to authorized which case they may operate with up to limits to specify fixed levels, and services by limiting the antenna height 40 mW EIRP. The databases used by TV slightly increased the maximum AGL to 30 meters. It therefore declined bands devices are established and permissible power spectral density to increase this limit at this time. As the administered by parties selected by the (PSD) for each category of TV bands Commission previously stated, it could Commission. device. These changes will result in revisit this height limit in the future if 4. In the Second MO&O in this decreased operating costs and greater experience with TV bands devices proceeding, the Commission upheld the coverage from fixed TV bands devices indicates they could operate at higher majority of its prior decisions but made that the Commission expects will antenna heights without causing the following changes to the rules that increase the availability of wireless interference. Also, the changes the are at issue in one or more of the five broadband services in rural and Commission made by removing the 76-

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meter site HAAT limit and permitting Commission made additional changes to for HAAT ranging from less than three an antenna HAAT of up to 250 meters offset the increased potential for meters to a maximum of 250 meters. will serve to increase the coverage of TV harmful interference at the higher The Commission found that the Joint bands devices in many instances. antenna heights it is permitting. As Petitioners’ recommended separation recommended by the Joint Petitioners, Height Above Average Terrain (HAAT) distances are greater than necessary to the Commission revised the table of Limit provide the level of protection to TV minimum required separation distances services that the Commission decided to 9. Because the range at which between fixed devices and the contours provide. It therefore modified the table interference occurs increases as the of co-channel and adjacent channel TV as shown. antenna height is raised, the stations to specify separation distances

Required separation (km) from digital or analog TV (full service or low power) Antenna height above average terrain of unlicensed device protected contour Adjacent Co-channel channel (km) (km)

Less than 3 meters ...... 4.0 0.4 3–Less than 10 meters ...... 7.3 0.7 10–Less than 30 meters ...... 11.1 1.2 30–Less than 50 meters ...... 14.3 1.8 50–Less than 75 meters ...... 18.0 2.0 75–Less than 100 meters ...... 21.1 2.1 100–Less than 150 meters ...... 25.3 2.2 150–Less than 200 meters ...... 28.5 2.3 200–250 meters ...... 31.2 2.4

10. The methodology used by the distances less than 1 km. Thus, the operate at a location where the channel Joint Petitioners to calculate the Commission agreed with the Joint list is not valid. The Commission required separation distances between Petitioners’ suggestion to use the TM– therefore required that the TV bands TV bands devices and co-channel and 91–1 model to calculate the required database not provide channel lists for adjacent channel TV contours is separation distances from TV bands Mode I devices through fixed devices generally consistent with the devices at antenna heights below 30 with an antenna HAAT of greater than methodology described in the Second meters HAAT where the Commission’s 106 meters. Report and Order. The Joint Petitioners propagation curves are undefined. 12. The Commission did not increase the minimum required separation of one calculated separation distances from 11. The Commission prohibited fixed fixed devices with an antenna HAAT of kilometer between wireless devices with an HAAT greater than the microphones and fixed devices 30 meters and greater in the same current maximum of 106 meters from manner as the Commission by using the operating at a higher HAAT than the providing channel lists to Mode I current rules allow, because the higher F(50,10) propagation curves in the rules. personal/portable devices. This action The Joint Petitioners used the OET TM– HAAT will not increase fixed device was necessary because a Mode I device, signal strength at a one kilometer 91–1 method to calculate separation which does not incorporate a geo- distance. The OET TM–91–1 model that distances for fixed device antenna location capability, obtains a list of is used to calculate signal strength at the heights below 30 meters HAAT because available channels from a fixed or Mode distance takes into account radiated the Commission’s propagation curves II device that is determined by the power, separation distance, and the are undefined for HAAT values below geographic coordinates of those devices. antenna height AGL, but is independent 30 meters. OET TM–91–1 is a model Under the 106 meter limitation, the of the HAAT. Because the Commission that the Commission uses for calculating communication distance between a did not increase the maximum fixed signal levels at short distances and low Mode I device and the fixed or Mode II device antenna height AGL or radiated antenna heights above ground. While device that provides a channel list is power, there will be no increase in the Commission used a different relatively short, and thus there is a low signal level at one kilometer. The propagation model to calculate the probability that a Mode I device would Commission also did not increase the separation distances at low antenna operate at a location where its channel size of the exclusion zones around heights in the Second Report and Order list is not valid, i.e., does not meet the receive sites for MVPDs, low power TV (the Okumara model), it used the TM– minimum separation distances from co- or BAS links, because it has no 91–1 model in the Second Report and channel and adjacent channels TV information demonstrating that the Order to calculate the impact of stations or other protected services. existing requirements are insufficient to personal/portable TV bands devices on However, if the fixed device that obtains provide adequate protection at the TV reception at short distances, e.g., up the channel list for a Mode I device higher antenna HAAT that it is to approximately 1.5 km. Based on its operates with greater HAAT than the permitting for fixed devices. comparison of these models, the current rules permit, the Mode I device Commission found that TM–91–1 is could operate at a greater distance from Out-of-Band Emissions appropriate for calculating signal levels the coordinates of the fixed device 13. In the Second Report and Order, at distances less than 1 km (as well as where the available channel list was the Commission adopted out-of-band longer distances), whereas the Okumura calculated. This will increase the emission limits for TV bands devices to model was not designed for use at chance that the Mode I device could protect other authorized services both

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inside and outside the TV bands. For a fixed adjacent channel emission limit raised by Spectrum Bridge. It emissions that fall in a TV channel for each category of TV bands device established the PSD limits to prevent adjacent to the operating channel of a that is equivalent to the current multiple TV bands devices with TV bands device, the Commission emission limit for devices operating at transmit bandwidths of much less than required that these emissions be at least maximum power. Devices operating at 6 MHz from sharing a channel, which 55 dB below the highest emission in the less than the maximum permitted power could result in a total transmitted power operating channel, with both the in- will not be required to suppress within a channel significantly greater band and out-of-band emissions emissions below the fixed limits. This than the limits for individual fixed or measured with a 100 kHz bandwidth. eliminates the need for a device personal/portable devices. These limits Emissions that are more than one operating at less than the maximum were derived using the assumption that channel removed from the operating permitted power to unnecessarily the maximum permitted power of a TV channel must comply with the limits suppress adjacent channel emissions bands device is spread uniformly across specified in § 15.209 of the rules. These below the levels needed to prevent a 6 MHz channel. However, the field strength limits, measured at a interference to other services in the TV Commission recognized that this distance of 3 meters, are 100 microvolts bands, thus simplifying equipment assumption makes compliance with per meter (30–88 MHz), 150 microvolts design and reducing its cost. A fixed either the current or the modified per meter (88–216 MHz), 200 microvolts emission limit also simplifies adjacent channel emission limits it per meter (216–960 MHz), and 500 compliance measurements, because the adopted impractical if a device operates microvolts per meter (above 960 MHz). emission level can be measured directly at the maximum permissible power 14. In the Second MO&O, the rather than by comparing the in-band level. For a TV bands device to operate Commission modified the limits for and adjacent channel power measured at the maximum permissible power, it emissions that fall in TV channels in two different bandwidths. must fill the entire 6 MHz channel, adjacent to the operating channel. 16. The Commission calculated the leaving no margin for a roll-off from the Specifically, it required that in-band appropriate fixed adjacent channel in-band signal to the much lower level emissions be measured within a 6 MHz emission limits as follows. The current it must meet in the adjacent channel. bandwidth instead of within a 100 kHz adjacent channel emission limit is The Commission therefore increased the bandwidth, and it revised the required ¥72.8 dB in a 100 kHz bandwidth, PSD limit for each category of TV bands level of attenuation from 55 dB to 72.8 measured relative to the total in-band device by 0.4 dB, which will allow a TV dB to compensate for the difference in power in a 6 MHz bandwidth. It defined bands device to operate at the maximum measurement bandwidths while a fixed adjacent channel emission limit permissible power in a bandwidth of 5.5 providing the same level of interference for each of the four maximum power MHz instead of 6 MHz. This will allow protection. The Commission made these levels at which TV bands devices can 250 kHz for a roll-off from the in-band changes to ensure consistency in operate (fixed: 1 Watt; personal/ signal to each adjacent channel. The emission measurements, because the in- portable: 100 mW; personal/portable Commission did not adopt a 6 dB (4 band power measured within a 100 kHz operating adjacent to occupied times) increase in the PSD limit as bandwidth could vary depending on the channels: 40 mW; and sensing-only Spectrum Bridge suggests, because that bandwidth of the transmitted signal, devices: 50 mW). The adjacent channel change would allow devices to operate whereas the total power measured emission limit for each category of at maximum power in a bandwidth of within a 6 MHz bandwidth will be the device is simply the maximum power much less than 6 MHz, thus making it same regardless of whether the signal permitted in a 6 MHz bandwidth minus possible for multiple devices to share a fills the entire channel or just part. 72.8 dB. A table showing these limits is channel with a total power greater than 15. Decision. The Commission provided. the limits currently allowed for an modified the rules for adjacent channel 17. The Commission also slightly individual device. emission limits to specify fixed values, increased the maximum permissible 18. The revised PSD and adjacent rather than vary the limit relative to the PSD for each category of TV bands channel emission limits that the in-band power. Specifically, it adopted device to address the roll-off concern Commission adopted are as follows.

Type of TV bands device Power limit (6 MHz) PSD limit (100 kHz) Adjacent channel limit (100 kHz)

Fixed ...... 30 dBm (1 Watt) ...... 12.6 dBm ...... ¥42.8 dBm. Personal/portable (adj. channel) .... 16 dBm (40 mW) ...... ¥1.4 dBm ...... ¥56.8 dBm. Sensing only ...... 17 dBm (50 mW) ...... ¥0.4 dBm ...... ¥55.8 dBm. All other personal/portable ...... 20 dBm (100 mW) ...... 2.6 dBm ...... ¥52.8 dBm.

19. In the Commission’s review of the device into the antenna to determine the maximum output power is reduced PSD and adjacent channel emission compliance with the PSD limits. to prevent a device from transmitting in issues, it discovered some minor However, this is not possible for a bandwidth of much less than 5.5 MHz inconsistencies and omissions in the personal/portable devices which are at the maximum permissible power rules concerning the measurement of required to have a permanently attached level. To correct these omissions and emissions and corrected them herein. antenna. This section also does not inconsistencies, the Commission revised Specifically, § 15.709(c) does not specify include a requirement that fixed device § 15.709(a) and (c) to specify that the whether compliance with the adjacent PSD must be reduced in the same PSD and adjacent channel emission channel emission limits is determined manner as the maximum conducted limits are conducted power limits for through radiated or conducted output power when the transmit fixed devices and EIRP (radiated) limits measurements. In addition, antenna gain exceeds 6 dBi. Such a for personal/portable devices. It also § 15.709(a)(5) requires measurement of requirement is necessary to ensure that required that the conducted PSD limit the power conducted from the TV bands the PSD is proportionally reduced when for fixed devices be reduced by one dB

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for each dB that the maximum channel emission levels could impact TV channel 57. This pairing of channels directional gain of the transmit antenna wireless services adjacent to the TV with a 30 MHz frequency separation exceeds 6 dBi. These rule clarifications bands, such as those above channel 51 between them is designed to allow the will not result in any increased (the subject of another petition use of these channels for two-way compliance costs for equipment discussed in detail below), land mobile wireless operations. Fixed base stations manufacturers. radio services on frequencies below will transmit to mobile devices using 20. The Commission declined to relax channels 7 and 14, and the Low Power channel 57, while mobile devices will the out-of-band emission limit to the Radio Service above channel 13. transmit to base stations using channel specific values requested by Motorola, 22. For the reasons stated, the 52. Therefore, base stations will the Joint Petitioners, and the Wi-Fi Commission declined to relax the incorporate receivers that receive Alliance. As the Commission previously adjacent channel emission limits to signals from mobile devices on channel noted in the Second MO&O, adjacent prevent interference to authorized 52. The lower 700 MHz Block A was channel emissions from a TV bands services in and adjacent to the TV licensed through Commission Auction device appear as co-channel emissions bands. It concluded that its decision on 73 in 2008. Cellular South is one of the in an adjacent channel used by a TV this issue promotes more efficient use of entities that obtained licenses for Block station or other authorized service, and the TV spectrum by both licensed and A through this auction. It did not interference can occur to TV reception unlicensed devices. The Commission previously participate in this at very low undesired co-channel signal recognized the petitioners’ argument proceeding. levels. The Commission also noted that that tighter emission limits could result 24. Prospective bidders were made personal/portable TV bands devices are in higher equipment costs. It found, aware prior to Auction 73 that there permitted to operate within the however, that the record in this would continue to be full-service and protected contours of adjacent channel proceeding indicates that at least one low power television stations on TV stations, and fixed TV bands devices equipment manufacturer, Adaptrum, is channel 51 after the auction. The Public can operate as close as 0.1 kilometers capable of building a prototype device Notice describing this auction’s outside the contours of adjacent channel that complies with the limits adopted in procedures cautioned potential bidders stations and at significantly higher the Second MO&O. In addition, another about Commission rules and power than personal/portable TV bands manufacturer, Koos Technical Services, requirements that place limits on the devices. Thus, the Commission found it Inc., developed a device that complies ability of 700 MHz band licensees to use appropriate to require TV bands devices with all the requirements for fixed TV this spectrum. The Public Notice to meet tighter adjacent channel bands, devices, including the adjacent specifically pointed to § 27.60 of the emission limits than other equipment channel emission limits, and became rules that requires wireless licensees to such as Wi-Fi devices that do not the first party to obtain certification for protect co-channel and adjacent channel typically operate adjacent to services a TV bands device. Further, tighter out- TV stations, including stations on that receive interference at the same low of-band emission limits can allow users channel 51. Thus, prospective bidders level as the broadcast TV service. The to operate in adjacent frequency bands for Block A were given notice that there Commission noted that the relaxation of with less geographic separation between would be TV stations on adjacent the limit requested by the petitioners is them, thus enabling more efficient and channel 51, and the emission levels that approximately 25 dB (316 times the intensive use of spectrum. Thus, the a TV station may place in an adjacent power), which would be a very Commission concluded that the benefits channel are clearly specified in the significant increase in adjacent channel of tighter out-of-band emission limits Commission’s rules. These limits permit power over the maximum the rules outweigh any increase in equipment TV stations to place significantly higher currently permit and would have the cost that may be necessary to comply power in an adjacent channel than part potential to cause interference to with these rules. 15 TV bands devices. adjacent channel users in the TV bands. 25. CTIA—the Wireless Association 21. The Commission found that Protection of Wireless Services on and the Rural Cellular Association filed increasing the minimum separation Channel 52 a petition for rulemaking and a licensing distances between TV bands devices 23. Prior to the June 12, 2009 digital freeze on March 15, 2011, requesting and adjacent channel TV stations as a television transition, full-service TV that the Commission take action to way to offset the increased interference stations were permitted to operate on prevent further interference to Block A potential would be effective only in channels 52–69 (698 MHz to 806 MHz, licensees. To permit the Commission to protecting TV reception but not other also referred to as the 700 MHz band). evaluate the matters raised in the services that operate in or adjacent to The Commission reallocated these petition, the Media Bureau placed a the TV bands. For example, registered channels for services other than freeze on the filing of new applications wireless microphones and other low broadcast television. Under the band and most applications for minor power auxiliary services authorized plan that the Commission adopted, changes to low power and full power under part 74 would be impacted by the there are two channel groupings: (1) The television stations on channel 51. The increased noise that TV bands devices lower 700 MHz band, consisting of Commission took that action to preserve would place in adjacent channels. This channels 52–59, and (2) the upper 700 the status quo and to ensure that new increased noise also could limit the use MHz band, consisting of channels 60– applications are not filed in anticipation of personal/portable TV bands devices 69. The lower 700 MHz band is divided of the future limitations proposed in the operating adjacent to fixed TV bands into five blocks designated A through E, petition. It has not yet taken any other devices, thereby impairing efficient use and the upper 700 MHz band is divided action with respect to this petition. of spectrum. Increasing the 1 kilometer into four blocks designated A through D, 26. Decision. The Commission protection distance around registered with two additional bands allocated for declined to establish in this docket new wireless microphones would be public safety use. Block A in the lower requirements to protect wireless ineffective because registration provides 700 MHz band, which is the subject of operations on channel 52. As an initial only co-channel and not adjacent Cellular South’s petition for matter, it noted that Cellular South’s channel protection from TV bands reconsideration in this proceeding, petition on this issue was not timely devices. Further, the increased adjacent consists of TV channel 52 paired with filed. The Commission adopted rules

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permitting TV band devices to operate 52. The emission levels that a TV bands interference, it could check the database on Channel 51 in its 2008 Second device may place in an adjacent channel to find information on the interfering Report and Order. Pursuant to § 1.429(d) are far below the levels that a full- device. Also, as the Commission stated of the Commission’s rules, the deadline service TV station on channel 51 may in the Second Report and Order, it for seeking reconsideration of that place in adjacent channel 52. intends to closely oversee the decision was 30 days after the summary Specifically, emissions from TV bands development and introduction of TV of the Second Report and Order was devices in the adjacent channel must be bands devices and take whatever actions published in the Federal Register. at least 72.8 dB below the level in the may be necessary to correct any Cellular South filed its petition in 6 MHz channel where the TV bands interference that may occur and will January 2011, more than two years after device operates. As discussed, the consider any rule changes that might be the applicable due date. Commission modified the rules to needed to better protect against harmful 27. As an independent and alternative specify maximum adjacent channel interference to incumbent services. basis, the Commission dismissed emission levels that provide this level of Because TV bands devices operate Cellular South’s petition on this issue adjacent channel protection. For a under the control of a database that pursuant to § 1.429(b) of the personal/portable TV bands device provides a list of available channels to Commission’s rules, which precludes operating on channel 51 at the the TV bands devices, in the event of parties from relying on facts in petitions maximum allowable power of 100 harmful interference the Commission for reconsideration that were not milliwatts EIRP, the maximum radiated could take steps such as requesting the presented to the Commission emission in the adjacent channel would database operators to limit the use of previously, unless those facts have be ¥52.8 dBm EIRP or 132 microvolts certain TV channels in an area. Thus, changed or the party could not have per meter at a distance of three meters. the Commission found no need to adopt known about those facts when it had an This is below the § 15.209 out-of-band new protection requirements for opportunity to comment. No party emission limit of 200 microvolts per wireless services on channel 52 at this raised the issue of protection criteria for meter at three meters that applies to time. services on channel 52 in response to most part 15 transmitters in this New Class of TV Bands Devices the NPRM or FNPRM in this proceeding frequency band. In the case of fixed TV or at any time prior to Cellular South’s bands devices operating on channel 51 30. As discussed, the rules that the petition for reconsideration. The at the maximum EIRP of 4 watts, the Commission adopted in the Second Report and Order allow for two classes Commission was not persuaded that maximum permitted emission in the of TV bands devices—fixed and Cellular South could not previously adjacent channel is ¥36.8 dBm EIRP or personal/portable. Fixed devices may participate in this proceeding. Cellular 835 microvolts per meter at three operate at power levels up to 4 watts South purchased its licenses at auction meters. While this is greater than the EIRP and must either incorporate a geo- in 2008, several months before the § 15.209 limit, the Commission noted location capability such as GPS or be adoption of the Second Report and that this limit was developed with the professionally installed and have the Order, and over two years before the assumption that there would be a 10 devices’ geographic coordinates adoption of the Second MO&O. Cellular meter separation between a potentially manually entered by the installer. South therefore had ample opportunity interfering device and the device being to make any concerns about potential Personal/portable devices may operate protected. The Commission expects that with a power level up to 100 mW EIRP. interference from TV bands devices to there would typically be a much greater wireless services in the lower 700 MHz Mode II personal/portable devices must separation distance between a TV bands Block A known to the Commission but incorporate a geo-location capability device and a wireless base station failed to do so. While the Commission such as GPS to determine the receiving channel 52, thus significantly recognized Cellular South’s argument geographic coordinates to within +/¥ reducing the signal level at the receiver that the final technical specifications for 50 meters. Both fixed and Mode II and the likelihood of interference. Thus, 700 MHz band equipment were not portable devices must access a database the Commission found that there is a available until more recently, it did not that provides a list of available channels very low probability that TV bands find that a convincing explanation for at the devices’ location. A Mode II devices on channel 51 will cause not participating in the proceeding. If portable device must re-check its harmful interference to wireless services the precise technical parameters needed location and the database for available to perform an interference analysis are in the adjacent band. Because the channels if it changes location during not known (e.g., receiver bandwidth, Commission did not adopt here operation. Mode I devices are not noise floor, noise figure, antenna gain, protection criteria between TV bands required to incorporate geo-location or and desired-to-undesired signal ratio), devices and Block A stations, it saw no database access capabilities, and they parties could make reasonable estimates reason to include 700 MHz Block A base obtain a list of available channels on of these parameters. Cellular South, stations in the TV bands databases. which they can operate from either a however, did not provide any analysis 29. While the part 15 rules are fixed or Mode II device that accesses a or even express to the Commission any designed to minimize the likelihood of database. A portable device can operate general concerns about possible interference to authorized services, in Mode II at locations where it can interference prior to filing its petition there is always the possibility that receive a geo-location signal, and in for reconsideration. interference may occur in certain Mode I at locations where it cannot. 28. As another independent and situations. Therefore TV bands devices, Fixed devices may operate only on alternative basis for dismissing the like all other part 15 devices, operate on vacant TV channels that are not adjacent petition on this issue, the Commission a non-interference basis, meaning that to occupied TV channels, while reached the merits and rule against in the event a device causes interference personal/portable devices may operate Cellular South. The Commission found to an authorized service, the device adjacent to occupied TV channels if that there is no need to adopt new must cease operation. Because fixed TV their maximum EIRP is reduced to no requirements as Cellular South requests bands devices must be registered in the more than 40 milliwatts. because the current rules appropriately TV bands database, if a licensee of a 31. In the Second MO&O, the protect wireless operations on channel wireless system were to receive Commission decided that a Mode II

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device must use its geo-location there is the possibility of errors in the the information that is required by the capability to check its location at least registration information. It further noted rules to be included in the databases once every 60 seconds while in that while much of the data will come and will not include any additional operation to determine whether it has from Commission databases that already information that the database moved. In addition, the Commission are public sources, errors could result administrators may choose to collect. required that a Mode II device check the from the inadvertent entry of incorrect OET will advise the database database when it moves more than 100 data or as a result of a party deliberately administrators as necessary to meters from the location where it entering false data. The Commission implement this requirement. Codifying performed its last database check. therefore found that it is appropriate to this rule does not impose any new costs 32. Decision. The Commission permit public examination of protected or other burdens on database declined to establish a new class of entity registration information to allow administrators because they were fixed indoor devices as requested by the the detection and correction of errors. already required to provide the Wi-Fi Alliance. The Wi-Fi Alliance 34. Decision. The Commission capability described. states that the devices of interest would declined to require that the geographic be mass market Mode II personal/ coordinates or other information Other Matters portable devices, thus indicating to us concerning cable headends in the TV 36. OET designated ten parties as TV that they would be small and easily bands database be kept confidential. bands database administrators and transportable. The Commission found First, it noted that NCTA previously requires them to attend workshops that such devices would have a high participated in this proceeding but conducted by Commission staff. During potential for causing interference to never alleged prior to filing its petition the course of these workshops, the authorized services in the TV bands if that there is any need to keep database administrators have noted that they did not incorporate a geo-location information on cable headends some rules require Commission capability to accurately determine their confidential. The issue of public interpretation and guidance to ensure location. The devices could easily be availability of database information was that they are implemented consistently moved to a different location without raised in the petitions for across all TV White Space databases. updating the coordinates, where they reconsideration of the Second Report OET staff has provided guidance on would then receive an inaccurate list of and Order in this proceeding, and how certain rules as written should be available channels. In the absence of a NCTA raised no concerns about the implemented by the database geo-location capability, the coordinates confidentiality of headend registrations administrators. Information regarding would have to be manually entered into in its response to these petitions. In any these discussions, including any rule a device. In the case of mass market case, the Commission was not interpretations provided to the database consumer devices, the Commission persuaded that making information administrators at these workshops, is would not consider the consumer to be about cable headends publicly available posted on the Commission’s Web site at a professional installer. It expected that poses a security threat to http://www.fcc.gov/encyclopedia/white- many consumers would lack knowledge communications infrastructure. Based space-database-administration. The or experience in determining and on the documents referenced in NCTA’s Commission concluded that the rules entering a device’s coordinates and petition, virtually all communications should be modified to clearly state the therefore would be likely to make more facilities, including wireline, wireless, requirements for protecting these errors than a professional installer or, satellite, cable, and broadcasting services. alternately, would be more likely to facilities, could be classified as critical TV Translator, Low Power TV and enter an improper set of coordinates. infrastructure. Information on a large Class A TV Station Receive Sites While the Commission denied the Wi- number of these communications Fi Alliance’s request to create a new facilities is already publicly available 37. The rules require that TV bands category of TV bands device, it noted through the Commission’s databases, databases contain information on the the current rules do in fact contain and there is no evidence that the public location of receive sites for TV provisions that allow TV bands devices availability of this information has ever translator, low power TV, and Class A to operate without GPS under certain posed a threat to the security of TV stations (collectively low power circumstances. Specifically, a personal/ communications infrastructure. Also, as stations) and the channels of TV signals portable device can operate without NCTA and PISC note, information on received for retransmission at such sites. GPS in Mode I if it communicates with the locations of cable headends is The Commission’s Consolidated Data either a fixed device or a Mode II already publicly available from other Base System (CDBS) has the ability to personal/portable device that provides it sources, and the TV bands databases store receive site information for low with a list of available channels on will only list those facilities that are power stations, but the receive site which it can operate. outside the protected contours of the information currently contained in the over-the-air TV stations being received CDBS is incomplete or inaccurate and Confidentiality of Database Information and that the headend operator chooses therefore not always reliable. For this 33. In the Second MO&O, the to register. reason, the Commission adopted rules Commission decided that all 35. While the Commission upheld its that require low power stations to information that is required by the previous decision to make all register their receive sites with the TV Commission’s rules to be in a TV bands information in the TV bands database bands database administrators to obtain database is to be publicly available, publicly available, it noted that the protection. Subsequent to the adoption including fixed TV bands device Second MO&O did not include specific of these rules, the Commission has registration and voluntarily submitted text to codify this decision. The become concerned that if it were to protected entity information, such as Commission therefore added a new allow parties to register receive site cable headends. The Commission noted paragraph to § 15.715 of the rules to information both in the TV bands that the registration of a protected entity specify that database administrators database and the CDBS, there could be in the database will preclude operation must provide a means to allow public conflicts in the data between the CDBS of TV bands devices on one or more access to the information in the and the database registrations due to channels over specific areas and that database. Such access will be limited to data entry errors or updates to the

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information in one database but not the inaccuracies. In particular, it provided A. Need for, and Objectives of, the Third other. The Commission therefore found corrected coordinates for the Arecibo Memorandum Opinion and Order it is necessary to provide for a single Observatory in Puerto Rico and the registry for low power station receive Table Mountain receive site in 41. This Third Memorandum Opinion site information, and that registry is to Colorado. NTIA also requested that the and Order responds to five petitions for be the CDBS. The Commission’s staff Commission modify the receive site reconsideration that were filed in has constructed a Web page interface coordinates listed in § 15.712(h) to response to the Second Memorandum that will allow licensees of low power match those in footnote US388 to the Opinion and Order (‘‘Second MO&O’’) in this proceeding.5 It eliminates the 76 stations to easily provide us with their Table of Frequency Allocations in meter limitation on the height above correct receive channel information. § 2.106 of the rules because it average terrain of the sites where fixed The information collected through this determined that the coordinates in that TV bands devices may operate and Web page interface will be used to footnote are correct. The Commission increases the maximum permitted update the CDBS. The Commission will found that NTIA’s requested changes to issue a public notice when the interface antenna height above average terrain this section will ensure that radio from 106 meters to 250 meters. The is available to the public and will astronomy and other receive sites are provide instructions on how to access it. Third Memorandum Opinion and Order protected against interference from TV 38. In view of the Commission’s also replaces the current relative limit decision to acquire and maintain all low bands devices and therefore updated the with a fixed limit for TV bands device power station receive site data by means rules to reflect the correct coordinates. emissions that fall in the 6 MHz of the new receive site update facility In addition, the Commission noted that channels adjacent to the operating and the CDBS system, it no longer finds § 15.712(h)(1) lists the Naval Radio channel. Devices operating at the it necessary to require database Research Observatory in Sugar Grove, maximum permitted power must administrators to provide a separate West Virginia as a protected site but suppress adjacent channel emissions to registration process for this information. does not specify its geographic the same level that the current rules In addition to relieving the database coordinates. The Commission therefore require, but devices operating at less operators of a significant burden, this revised this section to add the than the maximum power do not have change will make the low power station coordinates of that observatory. These to suppress emissions below this level. receive site data in the CDBS more rule revisions do not require TV bands However, the Third Memorandum reliable and also avoid data conflicts devices to protect any additional radio Opinion and Order upholds the majority between the CDBS and the database astronomy sites or increase the size of of the Commission’s prior decisions registration records. Accordingly, the the protected zones around them; they permitting unlicensed broadband Commission modified § 15.713(b)(2) of merely provide more precise geographic operations in the TV bands while the rules to remove receive sites of TV coordinates for the sites that TV bands making certain other minor changes and translator, low power TV, and Class A devices were already required to refinements to the rules for TV band TV stations from the list of facilities that protect. The Commission found that devices. The Commission believes that are not contained in Commission these changes are insignificant in nature these changes and clarifications to the databases and placing them in and impact, and inconsequential to the rules will better ensure that licensed § 15.713(b)(1) in the list of facilities that industry and the public. Thus, these services are protected from interference are contained in Commission databases. rule changes do not require prior notice while retaining flexibility for unlicensed The Commission also modified under the APA. devices to share spectrum with new § 15.715(c) to remove TV translator services or to change frequencies if TV receive sites as an example of facilities Final Regulatory Flexibility Analysis spectrum is reallocated for other not contained in Commission databases. 40. As required by the Regulatory purposes. These rule changes are procedural in 1 nature in that the Commission changed Flexibility Act (RFA), an Initial B. Statement of Significant Issues the manner in which low power TV Regulatory Flexibility Analysis (IRFA) Raised by Public Comments in Response receive site information is collected and was incorporated in the Notice of to the IRFA placed in the TV bands databases, but Proposed Rule Making (NPRM) in ET not the protection afforded to receive Docket No. 04–186,2 and an additional 42. There were no public comments sites. Thus, these changes do not require IRFA was incorporated in the First filed that specifically addressed the prior notice under the Administrative Report and Order and Further Notice of rules and policies proposed in the IRFA. Procedure Act (APA). Proposed Rule Making (FNPRM) in ET C. Response to Comments by the Chief Docket No. 04–186.3 The Commission Protection of Radio Astronomy Counsel for Advocacy of the Small sought written public comment on the Business Administration 39. Section 15.712(h) of the rules proposals in the NPRM and in the prohibits the operation of TV bands FNPRM, including comment on the 43. Pursuant to the Small Business devices within 2.4 kilometers of certain IRFAs. No comments were received in Jobs Act of 2010, the Commission is radio astronomy and other receive sites response to either IRFA. This present required to respond to any comments to prevent interference to operations at Final Regulatory Flexibility Analysis filed by the Chief Counsel for Advocacy those locations. This rule section (FRFA) conforms to the RFA.4 of the Small Business Administration specifies the geographic coordinates of and to provide a detailed statement of receive sites that were provided to the 1 See 5 U.S.C. 603. The RFA, see 5 U.S.C. 601– any change made to the proposed rules Commission by the National 612, has been amended by the Small Business as a result of those comments. The Chief Telecommunications and Information Regulatory Enforcement Fairness Act of 1996 Counsel did not file any comments in Administration (NTIA) in 2005. NTIA (SBREFA), Public Law 104–121, Title II, 110 Stat. 857 (1996), and the Small Business Jobs Act of response to the proposed rules in this recently discovered inaccuracies in the 2010, Public Law 111–240, 124 Stat. 2504 (2010). proceeding. coordinates for several radio astronomy 2 NPRM, 19 FCC Rcd at 10018, 10048 (2004). receive sites and filed a request with the 3 FNPRM, 21 FCC Rcd 12266, 12299 (2006). 5 See Second Memorandum Opinion and Order in Commission to correct these 4 See 5 U.S.C. 604. ET Docket No. 04–186, 25 FCC Rcd 18661 (2010).

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D. Description and Estimate of the 100 employees.12 Since 771 F. Steps Taken to Minimize Significant Number of Small Entities to Which establishments had fewer than 100 Economic Impact on Small Entities, and Rules Will Apply employees, and since only 148 had Significant Alternatives Considered 44. The RFA directs agencies to more than 100 employees, the vast 48. The RFA requires an agency to provide a description of, and, where majority of manufacturers in this describe any significant alternatives that feasible, an estimate of, the number of category would be considered small it has considered in developing its small entities that may be affected by under applicable standards. approach, which may include the the rules adopted herein.6 The RFA 46. Wireless Telecommunications following four alternatives (among generally defines the term ‘‘small Carriers (except satellite). Since 2007, others): ‘‘(1) The establishment of entity’’ as having the same meaning as the Census Bureau has placed wireless differing compliance or reporting the terms ‘‘small business,’’ ‘‘small firms within this new, broad, economic requirements or timetables that take into organization,’’ and ‘‘small governmental census category.13 Under the present account the resources available to small jurisdiction.’’ 7 In addition, the term and prior categories, the SBA has entities; (2) the clarification, ‘‘small business’’ has the same meaning deemed a wireless business to be small consolidation, or simplification of as the term ‘‘small business concern’’ if it has 1,500 or fewer employees.14 For compliance and reporting requirements 8 under the Small Business Act. A this category, census data for 2007 show under the rule for such small entities; ‘‘small business concern’’ is one which: that there were 1,383 firms that operated (3) the use of performance rather than (1) Is independently owned and for the entire year.15 Of this total, 1,368 design standards; and (4) an exemption operated; (2) is not dominant in its field firms had employment of 999 or fewer from coverage of the rule, or any part of operation; and (3) satisfies any employees and 15 had employment of thereof, for such small entities.’’ 19 additional criteria established by the 16 49. While the Third Memorandum 9 1000 employees or more. Similarly, Small Business Administration (SBA). according to Commission data, 413 Opinion and Order generally upholds 45. Radio and Television carriers reported that they were engaged the rules adopted in the Second Broadcasting and Wireless in the provision of wireless telephony, Memorandum Opinion and Order, the Communications Equipment Commission made certain changes to Manufacturing. The Census Bureau including cellular service, Personal Communications Service (PCS), and those rules. It believed those changes defines this category as follows: ‘‘This and clarifications would provide for industry comprises establishments Specialized Mobile Radio (SMR) 17 improved protection of licensed services primarily engaged in manufacturing Telephony services. Of these, an estimated 261 have 1,500 or fewer in the TV bands, resolve certain radio and television broadcast and uncertainties in the rules, and provide wireless communications employees and 152 have more than 1,500 employees.18 Consequently, the manufacturers with greater flexibility in equipment.FN1 Examples of products designing products to meet market made by these establishments are: Commission estimates that approximately half or more of these demands. transmitting and receiving antennas, 50. The Commission eliminated the cable television equipment, GPS firms can be considered small. Thus, using available data, we estimate that prohibition on fixed TV bands device equipment, pagers, cellular phones, operation at sites where the ground mobile communications equipment, and the majority of wireless firms can be considered small. elevation is more than 76 meters above radio and television studio and the average elevation of the surrounding 10 broadcasting equipment.’’ In this E. Description of Projected Reporting, terrain, while maintaining the current category, the SBA has deemed a Recordkeeping, and Other Compliance antenna height above ground limit of 30 business manufacturing radio and Requirements meters. In place of the site elevation television broadcasting equipment, limit, the Commission adopted a wireless telecommunications 47. TV bands devices are required to requirement that a fixed device may equipment, or both, to be small if it has be authorized under the Commission’s 11 operate with an antenna height above fewer than 750 employees. For this certification procedure as a prerequisite average terrain of up to 250 meters, category of manufacturing, Census data to marketing and importation, and the which is an increase from the current for 2007 show that there were 919 firms Third Memorandum Opinion and Order antenna height above average terrain that operated that year. Of those makes no change to that requirement. limit of 106 meters (30 meters antenna establishments, 531 had between 1 and However, it makes certain changes to height above ground plus 76 meters site 19 employees; 240 had between 20 and the technical requirements for TV bands above average terrain). Under the new 99 employees; and 148 had more than devices, which are discussed. rule, a fixed TV bands device could operate from a site with an elevation of 6 5 U.S.C. 604(a)(3). 12 http://factfinder.census.gov/servlet/IBQTable? 7 5 U.S.C. 601(6). up to 220 meters above average terrain _bm=y&-geo_id=&-_ skip=300&- 8 using an antenna height above ground of 5 U.S.C. 601(3) (incorporating by reference the ds_name+EC0731I1&-_lang=en. definition of ‘‘small-business concern’’ in the Small 30 meters, resulting in an antenna 13 U.S. Census Bureau, 2007 NAICS Definitions, Business Act, 15 U.S.C. 632). Pursuant to 5 U.S.C. height above average terrain of 250 601(3), the statutory definition of a small business ‘‘517210 Wireless Telecommunications Categories applies ‘‘unless an agency, after consultation with (Except Satellite)’’; http://www.census.gov/naics/ meters. In reaching this decision, the the Office of Advocacy of the Small Business 2007/def/ND517210.HTM#N517210. Commission considered the competing Administration and after opportunity for public 14 13 CFR 121.201, NAICS code 517210. views from various parties on whether comment, establishes one or more definitions of 15 U.S. Census Bureau, Subject Series: the ground elevation limit unnecessarily such term which are appropriate to the activities of Information, Table 5, ‘‘Establishment and Firm Size: the agency and publishes such definition(s) in the Employment Size of Firms for the United States: restricts the locations where fixed TV Federal Register.’’ 2007 NAICS Code 517210’’ (issued Nov. 2010). bands devices can operate and whether 9 15 U.S.C. 632. 16 Id. Available census data do not provide a more an increase in the maximum antenna 10 U.S. Census Bureau, 2002 NAICS Definitions, precise estimate of the number of firms that have height above ground and average terrain ‘‘334220 Radio and Television Broadcasting and employment of 1,500 or fewer employees; the can allow greater coverage by fixed TV Wireless Communications Equipment largest category provided is for firms with ‘‘100 Manufacturing’’; http://www.census.gov/epcd/ employees or more.’’ bands devices without causing naics02/def/NDEF334.HTM#N3342. 17 See Trends in Telephone Service at Table 5.3. 11 See 13 CFR 121.201, NAICS code 334220. 18 See id. 19 5 U.S.C. 603(c)(1) through (4).

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interference to authorized users of the to Congress and the Government be reduced by the amount in dB that the TV bands. The Commission believes Accountability Office pursuant to the directional gain of the antenna exceeds that the changes it adopted will allow Congressional Review Act.21 6 dBi. for increased availability of wireless (ii) Personal/portable device operating Ordering Clauses broadband services in rural and adjacent to occupied TV channels: ¥1.4 underserved areas while protecting 53. Pursuant to the authority dBm EIRP. television and other services that contained in sections 4(i), 302, 303(e), (iii) Sensing-only devices: ¥0.4 dBm operate in the TV bands. 303(f), and 307 of the Communications EIRP. 51. The Commission made certain Act of 1934, as amended, 47 U.S.C. (iv) All other personal/portable changes to the technical requirements 154(i), 302, 303(c), 303(f), and 307 this devices: 2.6 dBm EIRP. for TV bands devices. Specifically, it Third Memorandum Opinion and Order * * * * * modified the limits for emissions that is hereby adopted. (b) * * * fall in TV channels adjacent to those 54. Pursuant to sections 4(i), 302, (2) The transmit antenna used with where a TV bands device operates by 303(e) 303(f), 303(g), 303(r), and 405 of fixed devices may not be more than 30 specifying limits that are at fixed levels, the Communications Act of 1934, as meters above the ground. In addition, rather than relative to the in-band amended, 47 U.S.C. 154(i), 302, 303(e), fixed devices may not be located at sites power. This change simplifies 303(f), 303(g), 303(r), and 405, the where the antenna height above average compliance measurements, because it petitions for reconsideration addressed terrain is more than 250 meters. The will no longer be necessary to compare herein are granted to the extent HAAT is to be calculated by the TV the in-band and adjacent channel discussed and the remainder of requests bands database that the device contacts power, which had to be measured with in the petitions for reconsideration are for available channels using two different bandwidths under the denied. computational software employing the previous rules. Instead, compliance can 55. Part 15 of the Commission’s rules methodology in § 73.684(d) of this be determined by directly measuring the is amended, and such rule amendments chapter. adjacent channel power in a specified shall be effective June 18, 2012. bandwidth for comparison to the limit. 56. The Commission’s Consumer and * * * * * (c) * * * The rule changes that the Commission Governmental Affairs Bureau, Reference (1) In the television channels adopted also eliminate the need for Information Center, shall send a copy of immediately adjacent to the channel in devices operating at less than the the Third Memorandum Opinion and which the TVBD is operating, emissions maximum permitted power to suppress Order, including the Final Regulatory adjacent channel emissions to levels Flexibility Analysis, to the Chief from the TVBD shall not exceed the below those needed to prevent Counsel for Advocacy of the U.S. Small following levels. (i) Fixed devices: ¥42.8 dBm interference to other services in the TV Business Administration. bands. In reaching its decision to conducted power. List of Subjects in 47 CFR Part 15 (ii) Personal/portable device operating modify the adjacent channel emission Communications equipment, Radio. adjacent to occupied TV channels: limits, the Commission considered and ¥ rejected requests for a greater relaxation 56.8 dBm EIRP. Federal Communications Commission. (iii) Sensing-only devices: ¥55.8 dBm of the limit. The Commission found that Marlene H. Dortch, the adopted limits are necessary to EIRP. Secretary. (iv) All other personal/portable prevent interference to authorized ¥ services in and adjacent to the TV bands For the reasons discussed in the devices: 52.8 dBm EIRP. and to allow more efficient use of the preamble, the Federal Communications (2) Emission measurements in the TV spectrum by both licensed and Commission amends 47 CFR part 15 as adjacent channels shall be performed unlicensed devices. The Commission follows: using a minimum resolution bandwidth recognized petitioners’ arguments that of 100 kHz with an average detector. A PART 15—RADIO FREQUENCY tighter emission limits can result in narrower resolution bandwidth may be DEVICES higher equipment costs. However, the employed near the band edge, when record indicated that at least one necessary, provided the measured ■ 1. The authority citation for part 15 energy is integrated to show the total equipment manufacturer is capable of continues to read as follows: complying with the limits adopted in power over 100 kHz. the Second Memorandum Opinion and Authority: 47 U.S.C. 154, 302a, 303, 304, * * * * * Order.20 The Commission noted that 307, 336, and 544a. ■ 3. Section 15.711 is amended by tighter out-of-band emission limits can ■ 2. Section 15.709 is amended by revising paragraph (b)(3)(iv) to read as allow users to operate in adjacent revising paragraphs (a)(5), (b)(2), (c)(1) follows: frequency bands with less geographic and (c)(2) to read as follows: separation between them, thus enabling § 15.711 Interference avoidance methods. more efficient and intensive use of § 15.709 General technical requirements. * * * * * spectrum. Thus, it found that the (a) * * * (b) * * * benefits of tighter out-of-band emission (5) The power spectral density from (3) * * * limits outweigh the increase in the TVBD shall not be greater than the (iv)(A) A Mode I personal/portable equipment cost necessary to comply following values when measured in any TVBD may only transmit upon receiving with the limits. 100 kHz band during any time interval a list of available channels from a fixed of continuous transmission. or Mode II TVBD. A fixed or Mode II G. Report to Congress (i) Fixed devices: 12.6 dBm conducted device may provide a Mode I device 52. The Commission will send a copy power. If transmitting antennas of with a list of available channels only of the Third Memorandum Opinion and directional gain greater than 6 dBi are after it contacts its database, provides Order, including this FRFA, in a report used, this conducted power level shall the database the FCC Identifier (FCC ID) of the Mode I device requesting 20 See Adaptrum ex parte dated March 8, 2011. 21 See 5 U.S.C. 801(a)(1)(A). available channels, and receives

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verification that the FCC ID is valid for indicates is available for use by a Mode ■ 4. Section 15.712 is amended by operation. I device on a signal seeking such revising paragraph (a)(2), adding (B) A Mode II device must provide a contacts. At least once every 60 seconds, paragraph (a)(3) and revising paragraph list of channels to the Mode I device except when in sleep mode, i.e., a mode (h) to read as follows: that is the same as the list of channels in which the device is inactive but is available to the Mode II device. not powered-down, a Mode I device § 15.712 Interference protection requirements. (C) A fixed device may provide a list must either receive a contact of available channels to a Mode I device verification signal from the Mode II or * * * * * only if the fixed device HAAT as fixed device that provided its current (a) * * * verified by the TV bands database does list of available channels or contact a (2) Required separation distance. not exceed 106 meters. The fixed device Mode II or fixed device to re-verify/re- TVBDs must be located outside the must provide a list of available channels establish channel availability. A Mode I contours indicated in paragraph (a)(1) of to the Mode I device that is the same as device must cease operation this section of co-channel and adjacent the list of channels available to the fixed immediately if it does not receive a channel stations by at least the device, except that a Mode I device may contact verification signal or is not able minimum distances specified in the operate only on those channels that are to re-establish a list of available following table. Personal/portable permissible for its use under § 15.707. A channels through contact with a fixed or TVBDs operating in Mode II must fixed device may also obtain from a Mode II device on this schedule. In comply with the separation distances database a separate list of available addition, a Mode II device must re- specified for an unlicensed device with channels that includes adjacent check/re-establish contact with a fixed an antenna height of less than 3 meters. channels that would be available to a or Mode II device to obtain a list of Alternatively, Mode II personal/portable Mode I personal/portable device and available channels if it loses power. TVBDs may operate at closer separation provide that list to the Mode I device. Collaterally, if a Mode II device loses distances from the contour of adjacent (D) To initiate contact with a fixed or power and obtains a new channel list, channel stations than this table permits, Mode II device, a Mode I device may it must signal all Mode I devices it is including inside the contour of adjacent transmit on an available channel used serving to acquire and use a new channel stations, provided the power by the fixed or Mode II TVBD or on a channel list. level is reduced to 40 mW or less as channel the fixed or Mode II TVBD * * * * * specified in § 15.709(a)(2).

Required separation (km) from digital or analog TV (full serv- ice or low power) protected Antenna height above average terrain of unlicensed device contour Adjacent Co-channel channel (km) (km)

Less than 3 meters ...... 4.0 0.4 3–Less than 10 meters ...... 7.3 0.7 10–Less than 30 meters ...... 11.1 1.2 30–Less than 50 meters ...... 14.3 1.8 50–Less than 75 meters ...... 18.0 2.0 75–Less than 100 meters ...... 21.1 2.1 100–Less than 150 meters ...... 25.3 2.2 150–Less than 200 meters ...... 28.5 2.3 200–250 meters ...... 31.2 2.4

(3) The antenna height above ground (h) * * * (2) The Table Mountain Radio for a fixed TVBD may not exceed 30 (1) The Naval Radio Research Receiving Zone (TMRZ) at 40 08 02 N meters. Observatory in Sugar Grove, West and 105 14 40 W. * * * * * Virginia at 38 30 58 N and 79 16 48 W. (3) The following facilities:

Latitude Longitude Observatory (deg/min/sec) (deg/min/sec)

Allen Telescope Array ...... 40 49 04 N 121 28 24 W Arecibo Observatory ...... 18 20 37 N 066 45 11 W Green Bank Telescope (GBT) ...... 38 25 59 N 079 50 23 W

Very Large Array (VLA) ...... Rectangle between latitudes 33 58 22 N and 34 14 56 N, and lon- gitudes 107 24 40 W and 107 48 22 W

Very Long Baseline Array (VLBA) Stations: Pie Town, NM ...... 34 18 04 N 108 07 09 W Kitt Peak, AZ ...... 31 57 23 N 111 36 45 W Los Alamos, NM ...... 35 46 30 N 106 14 44 W

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Latitude Longitude Observatory (deg/min/sec) (deg/min/sec)

Ft. Davis, TX ...... 30 38 06 N 103 56 41 W N. Liberty, IA ...... 41 46 17 N 091 34 27 W Brewster, WA ...... 48 07 52 N 119 41 00 W Owens Valley, CA ...... 37 13 54 N 118 16 37 W St. Croix, VI ...... 17 45 24 N 064 35 01 W Hancock, NH ...... 42 56 01 N 071 59 12 W Mauna Kea, HI ...... 19 48 05 N 155 27 20 W

■ 5. Section 15.713 is amended by DEPARTMENT OF TRANSPORTATION This document does not make any adding paragraphs (b)(1)(ix) through substantive changes to the requirements (xi), removing paragraphs (b)(2)(ii) National Highway Traffic Safety specified in FMVSS No. 208. through (iv), redesignating paragraphs Administration DATES: This rule is effective June 18, (b)(2)(v) through (vi) as paragraphs 2012. (b)(2)(ii) and (iii), and revising 49 CFR Part 571 Petitions for reconsideration must be received by July 2, 2012. paragraph (e)(6) to read as follows: [Docket No. NHTSA–2012–0058] ADDRESSES: Petitions for reconsideration § 15.713 TV bands database. RIN 2127–AL07 must be submitted to: Administrator, * * * * * National Highway Traffic Safety (b) * * * Federal Motor Vehicle Safety Administration, 1200 New Jersey Standards; Occupant Crash Protection Avenue SE., Washington, DC 20590. (1) * * * FOR FURTHER INFORMATION CONTACT: Mr. (ix) Class A television station receive AGENCY: National Highway Traffic William H. Shakely, Office of the Chief sites. Safety Administration (NHTSA), Counsel, National Highway Traffic Department of Transportation (DOT). (x) Low power television station Safety Administration, 1200 New Jersey ACTION: Final rule; technical receive sites. Avenue SE., Washington, DC 20590. amendments. Telephone: (202) 366–2992. (xi) Television translator station SUPPLEMENTARY INFORMATION: receive sites. SUMMARY: This final rule makes I. Discussion * * * * * technical amendments to Federal Motor Vehicle Safety Standard (FMVSS) No. FMVSS No. 208 (49 CFR 571.208) (e) * * * 208, Occupant Crash Protection. specifies requirements for the protection (6) A fixed device with an antenna Specifically, this document updates of vehicle occupants in crashes and height above ground that exceeds 30 references to the Pipeline and includes equipment requirements for meters or an antenna height above Hazardous Materials Safety restraint systems. This document makes average terrain (HAAT) that exceeds 250 Administration (PHMSA) (formerly the technical amendments to several of the meters shall not be provided a list of Research and Special Programs provisions within this standard, available channels. The HAAT is to be Administration) regulations that are specifically the requirements for calculated using computational software included in the requirements for pressure vessels and explosive devices, employing the methodology in pressure vessels and explosive devices which are located at S9.1 and S9.2, and § 73.684(d) of this chapter. used in occupant crash protection the air bag warning label requirements, systems, such as air bags. As a result of which are located at S4.5.1. * * * * * various rulemakings that reorganized S9.1 and S9.2 were promulgated in ■ 6. Section 15.715 is amended by the relevant regulations, the references 1972 with the purpose of regulating revising paragraph (c) and adding contained in FMVSS No. 208 are out of occupant crash protection systems, such paragraph (m) to read as follows: date. This final rule updates the as air bags, that contain explosive references to the PHMSA regulations. materials or pressure vessels by § 15.715 TV bands database administrator. This document also makes a imposing directly on manufacturers the * * * * * correction to the air bag warning label obligation to conform to Federal requirements for vehicle dashboards 1 (c) Establish a process for registering hazardous materials regulations. S9.1 and steering wheel hubs to make clear specifies that pressure vessels shall fixed TVBDs and registering and that the general warning label conform to certain requirements for including in the database facilities requirements for vehicles with air bags Specification 39 non-reusable (non- entitled to protection but not contained are superseded by different, specific refillable) cylinders found at 49 CFR in a Commission database, including requirements if the vehicle is certified to 178.65. S9.2 specifies requirements for MVPD receive sites. meet certain advanced air bag explosive devices and, in particular, * * * * * requirements. As written now, the requires that such devices not exhibit (m) Provide a means to make all general warning label requirements any of the characteristics prohibited by information the rules require the contain an explicit exception for the the Federal regulation listing forbidden database to contain publicly available, warning label requirements for vehicles explosives, which, at the time S9.2 was certified to meet these advanced air bag including fixed TVBD registrations and adopted, was found at 49 CFR 173.51. requirements before December 1, 2003, Since S9.1 and S9.2 were adopted, the voluntarily submitted protected entity but do not reference the warning label hazardous materials regulations information. requirements for vehicles certified to referenced in these paragraphs have [FR Doc. 2012–11906 Filed 5–16–12; 8:45 am] meet these requirements on or after BILLING CODE 6712–01–P December 1, 2003. 1 37 FR 9222 (May 6, 1972).

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been reorganized and, in some cases, specifies the label requirements for comment are unnecessary. For the same relocated. On December 21, 1990, the vehicles certified to meet the specified reasons, NHTSA has determined that regulation listing forbidden explosives advanced air bag requirements on or there is good cause for these (49 CFR 173.51) was redesignated as 49 after December 1, 2003. However, the amendments to go into effect 30 days CFR 173.54.2 On May 23, 1996, the text of S4.5.1(e)(1) does not include an after publication in the Federal pressure vessel requirements in 49 CFR exception for S4.5.1(e)(3). Register. 178.65 were reorganized,3 and on On January 25, 2005, we received a The agency has discussed the relevant August 8, 2002, a subreferenced request for interpretation from Toyota requirements of Executive Order 12866, provision concerning pressure relief Motor North America, Inc. (Toyota) Executive Order 13563, DOT Regulatory devices (49 CFR 173.34(d)) was moved concerning S4.5.1(e).5 Toyota’s concern Policies and Procedures, the National into 49 CFR 173.301.4 was that S4.5.1(e)(1) makes an exception Environmental Policy Act, the As a result of these reorganizations, for S4.5.1(e)(2) but not for S4.5.1(e)(3). Regulatory Flexibility Act, Executive the references in FMVSS No. 208 are no Arguably, as written, both S4.5.1(e)(1) Order 13132 (Federalism), Executive longer accurate. This notice updates the and S4.5.1(e)(3) would apply to vehicles Order 12988 (Civil Justice Reform), the references contained in S9.1 and S9.2 of certified to meet certain advanced air Unfunded Mandates Reform Act, the this standard. It does not make any bag requirements on or after December Paperwork Reduction Act, Executive substantive changes to the requirements 1, 2003. Toyota indicated its belief that Order 13045 (Protection of Children specified therein. In particular, we note it was not NHTSA’s intention to require From Environmental Health and Safety that when the hazardous materials vehicles to have both labels, which are Risks), the National Technology regulations referenced in S9.1 and S9.2 very similar. Transfer and Advancement Act, and We responded to Toyota’s request for were reorganized or redesignated, minor Executive Order 13211(Energy Effects), interpretation on March 14, 2005.6 We textual changes were made to those as applicable, in the underlying confirmed Toyota’s understanding and referenced sections. However, these substantive rules establishing and agreed that it was not the agency’s textual changes did not result in any amending the affected sections of intention to require vehicles to have substantive changes. Accordingly, the FMVSS No. 208. Those discussions are both types of labels. We indicated that substantive requirements of S9.1 and not affected by these amendments. S9.2 remain the same. the agency intended for the labeling The need to correct the references in requirements in S4.5.1(e)(2) and Regulatory Identifier Number (RIN) S9.1 of FMVSS No. 208 was the subject S4.5.1(e)(3) to supersede the labeling of a petition for rulemaking submitted requirement in S4.5.1(e)(1) for vehicles The Department of Transportation by the North American Automotive certified to meet certain advanced air assigns a regulation identifier number Hazardous Material Action Committee bag requirements and stated that the (RIN) to each regulatory action listed in on October 7, 2004. That organization exception identified in S4.5.1(e)(1) the Unified Agenda of Federal specifically petitioned NHTSA to should include both S4.5.1(e)(2) and Regulations. The Regulatory Information update paragraph S9.1 of FMVSS No. S4.5.1(e)(3). This amendment adds Service Center publishes the Unified 208. This document grants that petition. S4.5.1(e)(3) as an exception to the Agenda in April and October of each We had also previously been contacted requirements of S4.5.1(e)(1), consistent year. You may use the RIN contained in by a representative of Takata with our letter of interpretation to the heading at the beginning of this Corporation concerning this matter. Toyota. This is a technical correction document to find this action in the In addition to updating the references and does not change any of the Unified Agenda. in S9.1 and S9.2, this final rule makes substantive labeling requirements. Privacy Act a technical amendment to S4.5.1(e) of FMVSS No. 208, which specifies II. Rulemaking Analyses and Notices Anyone is able to search the requirements for air bag warning labels Section 553 of the Administrative electronic form of all comments on vehicle dashboards and steering Procedure Act (5 U.S.C. 553) provides received into any of our dockets by the wheel hubs. S4.5.1(e)(1) specifies label that when an agency, for good cause, name of the individual submitting the requirements for all vehicles equipped finds that notice and public procedure comment (or signing the comment, if with air bags except as provided in are impracticable, unnecessary, or submitted on behalf of an association, S4.5.1(e)(2). S4.5.1(e)(2) specifies label contrary to the public interest, the business, labor union, etc.). You may requirements for vehicles certified to agency may issue a final rule without review DOT’s complete Privacy Act meet certain advanced air bag providing notice and an opportunity for Statement in the Federal Register requirements before December 1, 2003. public comment (5 U.S.C. 553(b)(B)). published on April 11, 2000 (Volume S4.5.1(e) contains a third set of label NHTSA has determined that there is 65, Number 70; Pages 19477–78) or you requirements in S4.5.1(e)(3), which good cause for making these technical may visit http://www.regulations.gov. amendments final without notice and an List of Subjects in 49 CFR Part 571 2 Final Rule; Performance-Oriented Packaging opportunity for public comment. These Standards; Changes to Classification, Hazard technical amendments update the cross- Motor vehicle safety, Reporting and Communication, Packaging and Handling recordkeeping requirements, Tires. Requirements Based on UN Standards and Agency references to Federal hazardous Initiative, 55 FR 52402 (Dec. 21, 1990). materials regulations in paragraphs S9.1 For the reasons stated in the 3 Final Rule; Restructuring of Cylinder and S9.2 of FMVSS No. 208 and correct preamble, the National Highway Traffic Specifications Requirements, 61 FR 25940 (May 23, the language in paragraph S4.5.1(e) of Safety Administration, Department of 1996). that standard. The amendments do not 4 Final Rule; Hazardous Materials: Requirements Transportation, amends 49 CFR part 571 for Maintenance, Requalification, Repair and Use of alter the substance of the amended as follows: DOT Specification Cylinders, 67 FR 51626 (Aug. 8, sections nor do they alter the 2002). 49 CFR 173.301 includes additional requirements of FMVSS No. 208. PART 571—FEDERAL MOTOR requirements beyond those for pressure relief Accordingly, notice and public VEHICLE SAFETY STANDARDS devices. Accordingly, the regulatory text of S9.1 has been amended in this final rule so that only the ■ pressure relief device requirements of that section 5 Docket No. NHTSA–2005–20694–0002. 1. The authority citation for part 571 are referenced. 6 Docket No. NHTSA–2005–20694–0001. continues to read as follows:

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Authority: 49 USC 322, 30111, 30115, the passenger position shall have a label not fail in any of the ways enumerated 30117, and 30166; delegation of authority at attached to a location on the dashboard in § 178.65(f)(2) of this title when 49 CFR 1.50. or the steering wheel hub that is clearly hydrostatically tested to destruction. It ■ 2. Section 571.208 is amended by visible from all front seating positions. shall not crack when flattened in revising the first sentence of *** accordance with § 178.65(g) of this title S4.5.1(e)(1), S9.1, and the first sentence * * * * * to the limit specified in § 178.65(g)(4) of of S9.2 to read as follows: this title. S9.1 Pressure vessels. A pressure S9.2 Explosive devices. An § 571.208 Standard No. 208; Occupant vessel that is continuously pressurized explosive device shall not exhibit any of crash protection. shall conform to the requirements of the characteristics prohibited by * * * * * §§ 178.65(a), 178.65(c)(2), 178.65(d), § 173.54 of this title. * * * S4.5.1 Labeling and owner’s manual 178.65(e)(1), and 178.65(e)(2) of this * * * * * information. title; and to the pressure relief device Issued: May 10, 2012. * * * * * requirements of §§ 173.301(a)(2), (e) Label on the dashboard. (1) Except 173.301(a)(3) and 173.301(f) of this title. Christopher J. Bonanti, as provided in S4.5.1(e)(2) or It shall not leak or evidence visible Associate Administrator for Rulemaking. S4.5.1(e)(3), each vehicle that is distortion when tested in accordance [FR Doc. 2012–11945 Filed 5–16–12; 8:45 am] equipped with an inflatable restraint for with § 178.65(f)(1) of this title and shall BILLING CODE 4910–59–P

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Proposed Rules Federal Register Vol. 77, No. 96

Thursday, May 17, 2012

This section of the FEDERAL REGISTER Building Ground Floor, Washington, DC Regulatory Review)’’ (77 FR 13027). The contains notices to the public of the proposed 20590–0001. FAA requested that comments on that issuance of rules and regulations. The • Hand Delivery or Courier: Take proposal be received on or before May purpose of these notices is to give interested comments to Docket Operations in 4, 2012. persons an opportunity to participate in the Room W12–140 of the West Building By petition dated May 4, 2012, ACI– rule making prior to the adoption of the final Ground Floor at 1200 New Jersey NA, an association representing the rules. Avenue SE., Washington, DC, between local, regional and state governing 9 a.m. and 5 p.m., Monday through bodies that own and operate the DEPARTMENT OF TRANSPORTATION Friday, except Federal holidays. principal airports served by scheduled • Fax: Fax comments to Docket air carriers in North America, requested Federal Aviation Administration Operations at 202–493–2251. that the FAA extend the comment Privacy: The FAA will post all period for Notice No. 12–02 for three 14 CFR Part 16 comments it receives, without change, weeks. The petitioner stated that to http://www.regulations.gov, including additional time would allow it to [Docket No. FAA–2012–0176] any personal information the coordinate comments with commenter provides. Using the search RIN 2120–AJ97 representative airports, and contribute function of the docket Web site, anyone to meaningful input on the proposed Rules of Practice for Federally- can find and read the electronic form of rule. all comments received into any FAA Assisted Airport Enforcement Reopening of Comment Period Proceedings (Retrospective docket, including the name of the Regulatory Review); Reopening of individual sending the comment (or The FAA has reviewed the request Comment Period signing the comment for an association, made by ACI–NA for additional time to business, labor union, etc.). DOT’s comment on Notice No. 12–02. The AGENCY: Federal Aviation complete Privacy Act Statement can be petitioner has shown a substantive Administration (FAA), DOT. found in the Federal Register published interest in the proposed rule and good ACTION: Notice of proposed rulemaking on April 11, 2000 (65 FR 19477–19478), cause for the additional time to (NPRM); Reopening of comment period. as well as at http://DocketsInfo.dot.gov. comment. The FAA has determined that Docket: Background documents or reopening the comment period is SUMMARY: This action reopens the comments received may be read at consistent with the public interest, and comment period for an NPRM that was http://www.regulations.gov at any time. that good cause exists for taking this published on March 5, 2012. In that Follow the online instructions for action. document, the FAA proposed to update, accessing the docket or go to Docket Accordingly, the comment period for simplify, and streamline rules of Operations in Room W12–140 of the Notice No. 12–02 is reopened until June practice and procedure for filing and West Building Ground Floor at 1200 7, 2012. adjudicating complaints against New Jersey Avenue SE., Washington, Additional Information federally-assisted airports. The Airports DC, between 9 a.m. and 5 p.m., Monday Council International-North America through Friday, except Federal holidays. A. Comments Invited (ACI–NA), an association representing FOR FURTHER INFORMATION CONTACT: The FAA invites interested persons to the local, regional and state governing Melissa Loughlin, ARM–204, Office of participate in this rulemaking by bodies that own and operate the Rulemaking, Federal Aviation submitting written comments, data, or principal airports served by scheduled Administration, 800 Independence views. The agency also invites air carriers in North America, has Avenue SW., Washington, DC 20591, comments relating to the economic, requested additional time to complete telephone (202) 267–4055; email environmental, energy, or federalism its review and coordinate comments [email protected]. impacts that might result from adopting received from members that would be SUPPLEMENTARY INFORMATION: the proposals in this document. The impacted by the proposed changes. See the ‘‘Additional Information’’ section for most helpful comments reference a DATES: The comment period for the information on how to comment on this specific portion of the proposal, explain NPRM published on March 5, 2012 (77 proposal and how the FAA will handle the reason for any recommended FR 13027) closed May 4, 2012, and is comments received. The ‘‘Additional change, and include supporting data. To reopened until June 7, 2012. Information’’ section also contains ensure the docket does not contain ADDRESSES: You may send comments related information about the docket, duplicate comments, commenters identified by docket number FAA– privacy, the handling of proprietary or should send only one copy of written 2012–0176 using any of the following confidential business information. In comments, or if comments are filed methods: addition, there is information on electronically, commenters should • Federal eRulemaking Portal: Go to obtaining copies of related rulemaking submit only one time. http://www.regulations.gov and follow documents. The FAA will file in the docket all the online instructions for sending your comments it receives, as well as a report comments electronically. Background summarizing each substantive public • Mail: Send comments to Docket On March 5, 2012, the FAA issued contact with FAA personnel concerning Operations, M–30; U.S. Department of Notice No. 12–02, entitled ‘‘Rules of this proposed rulemaking. Before acting Transportation (DOT), 1200 New Jersey Practice for Federally-Assisted Airport on this proposal, the FAA will consider Avenue SE., Room W12–140, West Enforcement Proceedings (Retrospective all comments it receives on or before the

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closing date for comments. The FAA DATES: Comments and related material applies, and provide a reason for each will consider comments filed after the must be received by the Coast Guard on suggestion or recommendation. You comment period has closed if it is or before June 18, 2012. may submit your comments and possible to do so without incurring Requests for public meetings must be material online (via http:// expense or delay. The agency may received by the Coast Guard on or before www.regulations.gov) or by fax, mail, or change this proposal in light of the May 24, 2012. The Coast Guard hand delivery, but please use only one comments it receives. anticipates that this proposed rule will of these means. If you submit a be effective from 9:00 p.m. to 10:00 p.m. comment online via B. Availability of Rulemaking on June 23, 2012. www.regulations.gov, it will be Documents ADDRESSES: You may submit comments considered received by the Coast Guard An electronic copy of rulemaking identified by docket number USCG– when you successfully transmit the documents may be obtained from the 2012–0314 using any one of the comment. If you fax, hand deliver, or Internet by— following methods: mail your comment, it will be 1. Searching the Federal eRulemaking (1) Federal eRulemaking Portal: considered as having been received by Portal (http://www.regulations.gov); http://www.regulations.gov. the Coast Guard when it is received at 2. Visiting the FAA’s Regulations and (2) Fax: 202–493–2251. the Docket Management Facility. We Policies Web page at http:// (3) Mail: Docket Management Facility recommend that you include your name _ www.faa.gov/regulations policies or (M–30), U.S. Department of and a mailing address, an email address, 3. Accessing the Government Printing Transportation, West Building Ground or a telephone number in the body of Office’s Web page at http:// Floor, Room W12–140, 1200 New Jersey your document so that we can contact www.gpo.gov/fdsys/. Avenue SE., Washington, DC 20590– you if we have questions regarding your Copies may also be obtained by 0001. submission. sending a request to the Federal (4) Hand delivery: Same as mail To submit your comment online, go to Aviation Administration, Office of address above, between 9 a.m. and 5 http://www.regulations.gov, click on the Rulemaking, ARM–1, 800 Independence p.m., Monday through Friday, except ‘‘submit a comment’’ box, which will Avenue SW., Washington, DC 20591, or Federal holidays. The telephone number then become highlighted in blue. In the by calling (202) 267–9680. Commenters is 202–366–9329. ‘‘Document Type’’ drop down menu must identify the docket or notice To avoid duplication, please use only select ‘‘Proposed Rule’’ and insert number of this rulemaking. one of these four methods. See the ‘‘USCG–2012–0314’’ in the ‘‘Keyword’’ All documents the FAA considered in ‘‘Public Participation and Request for box. Click ‘‘Search’’ then click on the developing this proposed rule, Comments’’ portion of the balloon shape in the ‘‘Actions’’ column. including economic analyses and SUPPLEMENTARY INFORMATION section If you submit your comments by mail or technical reports, may be accessed from below for instructions on submitting hand delivery, submit them in an 1 the Internet through the Federal comments. unbound format, no larger than 8 ⁄2 by eRulemaking Portal referenced in item 11 inches, suitable for copying and (1) above. FOR FURTHER INFORMATION CONTACT: If electronic filing. If you submit you have questions on this proposed comments by mail and would like to Issued in Washington, DC, on May 11, rule, call or email Mr. Mark Cutter, 2012. know that they reached the Facility, Coast Guard Sector Boston Waterways please enclose a stamped, self-addressed Lirio Liu, Management Division, telephone 617– Acting Director, Office of Rulemaking. postcard or envelope. We will consider 223–4000, email all comments and material received [FR Doc. 2012–11988 Filed 5–16–12; 8:45 am] [email protected] or Lieutenant during the comment period and may BILLING CODE 4910–13–P Junior Grade Isaac Slavitt, Coast Guard change the rule based on your First District Waterways Management comments. Branch, telephone 617–223–8385, email DEPARTMENT OF HOMELAND [email protected]. If you have Viewing Comments and Documents SECURITY questions on viewing or submitting To view comments, as well as material to the docket, call Renee V. documents mentioned in this preamble Coast Guard Wright, Program Manager, Docket as being available in the docket, go to Operations, telephone 202–366–9826. http://www.regulations.gov, click on the 33 CFR Part 165 SUPPLEMENTARY INFORMATION: ‘‘read comments’’ box, which will then [Docket No. USCG–2012–0314] become highlighted in blue. In the Public Participation and Request for ‘‘Keyword’’ box insert ‘‘USCG–2012– RIN 1625–AA00 Comments 0314’’ and click ‘‘Search.’’ Click the Safety Zone; Carnival Fireworks We encourage you to participate in ‘‘Open Docket Folder’’ in the ‘‘Actions’’ Display, Nantasket Beach, Hull, MA this rulemaking by submitting column. You may also visit the Docket comments and related materials. All Management Facility in Room W12–140 AGENCY: Coast Guard, DHS. comments received will be posted on the ground floor of the Department ACTION: Notice of proposed rulemaking. without change to http:// of Transportation West Building, 1200 www.regulations.gov and will include New Jersey Avenue SE., Washington, SUMMARY: The Coast Guard proposes to any personal information you have DC 20590, between 9 a.m. and 5 p.m., establish a temporary safety zone on the provided. Monday through Friday, except Federal navigable waters off of Nantasket Beach Submitting Comments holidays. We have an agreement with in the vicinity of Hull, MA for a the Department of Transportation to use Carnival fireworks display. This If you submit a comment, please the Docket Management Facility. temporary safety zone is necessary to include the docket number for this protect spectators and vessels from the rulemaking (USCG–2012–0314), Privacy Act hazards associated with fireworks indicate the specific section of this Anyone can search the electronic displays. document to which each comment form of comments received into any of

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our dockets by the name of the representative. The COTP Boston or the The Coast Guard certifies under 5 individual submitting the comment (or on-scene representative may be U.S.C. 605(b) that this proposed rule signing the comment, if submitted on contacted via VHF Channel 16. would not have a significant economic behalf of an association, business, labor The Final Rule will not be published impact on a substantial number of small union, etc.). You may review a Privacy 30 days before the event and the entities. Act notice regarding our public dockets effective date of this proposed rule as is This proposed rule will affect the in the January 17, 2008, issue of the generally required by 5 U.S.C. 553(d)(3). following entities, some of which may Federal Register (73 FR 3316). The Coast Guard will accept comments be small entities: The owners and Public Meeting on this shortened period and address operators of vessels intending to transit them in the final rule. or anchor in a portion of water off of We do not now plan to hold a public Public notifications will be made Nantasket Beach in the vicinity of Hull, meeting. But you may submit a request prior to the event via appropriate MA during the effective period. for one by using one of the four methods means, and may include the Local This safety zone will not have a specified under ADDRESSES. Please Notice to Mariners and marine significant economic impact on a explain why you believe a public information broadcasts. substantial number of small entities for meeting would be beneficial. If we the following reasons: This rule will be Regulatory Analyses determine that one would aid this in effect for only one hour on a single rulemaking, we will hold one at a time We developed this proposed rule after day during the late evening and vessels and place announced by a later notice considering numerous statutes and will be able to transit around the safety in the Federal Register. executive orders related to rulemaking. zone. Before the effective period, we Basis and Purpose Below we summarize our analyses will issue maritime advisories widely based on 13 of these statutes or available to users of the waterway. The legal basis for the proposed rule executive orders. is 33 U.S.C 1231; 46 U.S.C Chapter 701, If you think that your business, 3306, 3703; 50 U.S.C. 191, 195; 33 CFR Executive Order 12866 and Executive organization, or governmental 1.05–1, 6.04–1, 6.04–6, 160.5; Public Order 13563 jurisdiction qualifies as a small entity Law 107–295, 116 Stat. 2064; and that this rule would have significant This rule is not a significant Department of Homeland Security economic impact on it, please submit a regulatory action under section 3(f) of Delegation No. 0170.1, which comment (see ADDRESSES) explaining Executive Order 12866, Regulatory collectively authorize the Coast Guard why you think it qualifies and how and Planning and Review, as supplemented to establish safety zones. to what degree this rule would This proposed safety zone is by Executive Order 13563, and does not economically affect it. require an assessment of potential costs necessary to protect spectators and Assistance for Small Entities vessels from the hazards associated with and benefits under section 6(a)(3) of that fireworks displays. Order. The Office of Management and Under section 213(a) of the Small Budget has not reviewed it under that Business Regulatory Enforcement Discussion of Proposed Rule Order. Fairness Act of 1996 (Pub. L. 104–121), Hull Youth Football is sponsoring a This determination is based on the we want to assist small entities in Carnival fireworks display on the waters limited time that vessels will be understanding this proposed rule so that off of Nantasket Beach in the vicinity of restricted from the fireworks display they can better evaluate its effects on Hull, MA. The COTP Boston has area. The safety zone will be in effect for them and participate in the rulemaking. determined that fireworks displays in approximately one hour during the If the rule would affect your small close proximity to watercraft and evening hours. The Coast Guard expects business, organization, or governmental waterfront structures pose a significant minimal adverse impact to mariners jurisdiction and you have questions risk to public safety and property. from the activation of the zone as concerning its provisions or options for Establishing a safety zone around the information on the event will be compliance, please contact 1–888–REG– location of this fireworks event will extensively advertised in the public, FAIR (1–888–734–3247). The Coast help ensure the safety of spectators, affected mariners may request Guard will not retaliate against small vessels and other property and help authorization from the COTP Boston or entities that question or complain about minimize the associated risks. This the designated on-scene representative this proposed rule or any policy or proposed safety zone will encompass a to transit the zone, and advance action of the Coast Guard. notification will be made to the 450-foot radius around the firework Collection of Information barge. maritime community via Local Notice to The fireworks display will occur from Mariners and Broadcast Notice to This proposed rule would call for no approximately 9:00 p.m. until 10:00 Mariners. new collection of information under the Paperwork Reduction Act of 1995 (44 p.m. on June 23, 2012. To ensure public Small Entities safety, the proposed safety zone will be U.S.C. 3501–3520.). enforced immediately before, during, Under the Regulatory Flexibility Act Federalism and immediately after the fireworks (5 U.S.C. 601–612), we have considered launch. If the event is cancelled due to whether this proposed rule would have A rule has implications for federalism inclement weather, then the proposed a significant economic impact on a under Executive Order 13132, safety zone will not be enforced. substantial number of small entities. Federalism, if it has a substantial direct All persons and vessels shall comply The term ‘‘small entities’’ comprises effect on State or local governments and with the instructions of the COTP small businesses, not-for-profit would either preempt State law or Boston or the designated on-scene organizations that are independently impose a substantial direct cost of representative. Entry into, transiting, or owned and operated and are not compliance on them. We have analyzed anchoring within the regulated area is dominant in their fields, and this proposed rule under that Order and prohibited unless authorized by the governmental jurisdictions with have determined that it does not have COTP or the designated on-scene populations of less than 50,000. implications for federalism.

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Unfunded Mandates Reform Act of Information and Regulatory Affairs PART 165—REGULATED NAVIGATION The Unfunded Mandates Reform Act has not designated it as a significant AREAS AND LIMITED ACCESS AREA of 1995 (2 U.S.C. 1531–1538) requires energy action. Therefore, it does not require a Statement of Energy Effects 1. The authority citation for part 165 Federal agencies to assess the effects of continues to read as follows: their discretionary regulatory actions. In under Executive Order 13211. particular, the Act addresses actions Authority: 33 U.S.C. 1231; 46 U.S.C Technical Standards Chapter 701, 3306, 3703; 50 U.S.C. 191, 195; that may result in the expenditure by a 33 CFR 1.05–1, 6.04–1, 6.04–6, 160.5; Pub. L. State, local, or tribal government, in the The National Technology Transfer and Advancement Act (NTTAA) (15 107–295, 116 Stat. 2064; Department of aggregate, or by the private sector of Homeland Security Delegation No. 0170.1. $100,000,000 (adjusted for inflation) or U.S.C. 272 note) directs agencies to use 2. Add § 165.T01–0314 to read as more in any one year. Though this voluntary consensus standards in their follows: proposed rule would not result in such regulatory activities unless the agency expenditure, we do discuss the effects of provides Congress, through the Office of § 165.T01–0314 Safety Zone; Carnival this rule elsewhere in this preamble. Management and Budget, with an Fireworks Display, Nantasket Beach, Hull, explanation of why using these MA. Taking of Private Property standards would be inconsistent with (a) Regulated Area. The following area This proposed rule would not cause a applicable law or otherwise impractical. is a temporary safety zone: All navigable taking of private property or otherwise Voluntary consensus standards are waters from surface to bottom, within a have taking implications under technical standards (e.g., specifications 450-foot radius of position 42°16′40″ N, Executive Order 12630, Governmental of materials, performance, design, or 070°51′46″ W. This position is located Actions and Interference with operation; test methods; sampling approximately 500-feet off of Nantasket Constitutionally Protected Property procedures; and related management Beach, Hull, MA. Rights. systems practices) that are developed or (b) Definitions. For purposes of this adopted by voluntary consensus Civil Justice Reform section ‘‘Designated on-scene standards bodies. representative’’ is any Coast Guard This proposed rule meets applicable This proposed rule does not use commissioned, warrant, or petty officer standards in sections 3(a) and 3(b)(2) of technical standards. Therefore, we did who has been designated by the Captain Executive Order 12988, Civil Justice not consider the use of voluntary of the Port Boston (COTP) to act on the Reform, to minimize litigation, consensus standards. COTP’s behalf. eliminate ambiguity, and reduce Environment (c) Effective Period. This rule will be burden. effective and will be enforced from 9:00 Protection of Children We have analyzed this proposed rule p.m. to 10:00 p.m. on June 23, 2012. under Department of Homeland (d) Regulations. We have analyzed this proposed rule Security Management Directive 023–01 (1) The general regulations contained under Executive Order 13045, and Commandant Instruction in 33 CFR 165.23, as well as the Protection of Children from M16475.lD, which guide the Coast following regulations, apply. Environmental Health Risks and Safety Guard in complying with the National (2) No vessels, except for fireworks Risks. This rule is not an economically Environmental Policy Act of 1969 barge and accompanying vessels, will be significant rule and would not create an (NEPA) (42 U.S.C. 4321–4370f), and allowed to enter into, transit, or anchor environmental risk to health or risk to have made a preliminary determination within the safety zone without the safety that might disproportionately that this action is one of a category of permission of the COTP Boston or the affect children. actions that do not individually or designated on-scene representative. Indian Tribal Governments cumulatively have a significant effect on (3) All persons and vessels shall the human environment. This proposed comply with the instructions of the This proposed rule does not have rule involves establishment of a safety COTP Boston or the designated on-scene tribal implications under Executive zone on waters off of Nantasket Beach, representative. Upon being hailed by a Order 13175, Consultation and Hull, MA during a firework works U.S. Coast Guard vessel by siren, radio, Coordination with Indian Tribal display. This proposed rule is flashing light, or other means, the Governments, because it would not have categorically excluded from further operator of a vessel shall proceed as a substantial direct effect on one or review under paragraph (34(g) under directed. more Indian tribes, on the relationship figure 2–1, of the Commandant (4) Vessel operators desiring to enter between the Federal Government and Instruction. A preliminary or operate within the regulated area Indian tribes, or on the distribution of environmental analysis checklist shall contact the COTP or the power and responsibilities between the supporting this determination will be designated on-scene representative via Federal Government and Indian tribes. available in the docket where indicated VHF channel 16 or 617–223–3201 Energy Effects under ADDRESSES. (Sector Boston command Center) to obtain permission. We have analyzed this proposed rule We seek any comments or information that may lead to the discovery of a (5) Vessel operators given permission under Executive Order 13211, Actions to enter or operate in the regulated area Concerning Regulations That significant environmental impact from this proposed rule. must comply with all directions given to Significantly Affect Energy Supply, them by the COTP Boston or the Distribution, or Use. We have List of Subjects in 33 CFR Part 165 designated on-scene representative. determined that it is not a ‘‘significant energy action’’ under that order because Marine safety, Navigation (water), Dated: May 4, 2012. it is not a ‘‘significant regulatory action’’ Reporting and recordkeeping J.N. Healey, under Executive Order 12866 and is not requirements, waterways. Captain, U.S. Coast Guard, Captain of the likely to have a significant adverse effect For the reasons discussed in the Port Boston. on the supply, distribution, or use of preamble, the Coast Guard proposes to [FR Doc. 2012–11922 Filed 5–16–12; 8:45 am] energy. The Administrator of the Office amend 33 CFR part 165 as follows: BILLING CODE 9110–04–P

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DEPARTMENT OF HOMELAND questions on viewing or submitting Viewing Comments and Documents SECURITY material to the docket, call Renee V. To view comments, as well as Wright, Program Manager, Docket documents mentioned in this preamble Coast Guard Operations, telephone 202–366–9826. as being available in the docket, go to SUPPLEMENTARY INFORMATION: http://www.regulations.gov, click on the 33 CFR Part 165 ‘‘read comments’’ box, which will then Public Participation and Request for become highlighted in blue. In the [Docket No. USCG–2010–0012] Comments ‘‘Keyword’’ box insert ‘‘USCG–2010– RIN 1625–AA00 We encourage you to participate in 0012’’ and click ‘‘Search’’ Click the this rulemaking by submitting ‘‘Open Docket Folder’’ in the ‘‘Actions’’ Safety Zones, Large Cruise Ships; comments and related materials. All column. You may also visit the Docket Lower Mississippi River, Southwest comments received will be posted Management Facility in Room W12–140 Pass Sea Buoy to Mile Marker 96.0; without change to http:// on the ground floor of the Department New Orleans, LA www.regulations.gov and will include of Transportation West Building, 1200 AGENCY: Coast Guard, DHS. any personal information you have New Jersey Avenue SE., Washington, provided. DC 20590, between 9 a.m. and 5 p.m., ACTION: Notice of proposed rulemaking. Monday through Friday, except Federal Submitting Comments SUMMARY: The Coast Guard proposes to holidays. We have an agreement with establish a moving safety zone around If you submit a comment, please the Department of Transportation to use large cruise ships as they transit the include the docket number for this the Docket Management Facility. rulemaking (USCG–2010–0012), Lower Mississippi River between the Privacy Act Port of New Orleans Cruise Ship indicate the specific section of this Anyone can search the electronic Terminal, mile marker 96.0 and the document to which each comment form of comments received into any of Southwest Pass Sea Buoy. The proposed applies, and provide a reason for each our dockets by the name of the moving safety zone extends from bank suggestion or recommendation. You individual submitting the comment (or to bank encompassing one-mile ahead may submit your comments and signing the comment, if submitted on and one-mile astern of each large cruise material online (via http:// behalf of an association, business, labor ship. This safety measure is necessary to www.regulations.gov) or by fax, mail, or union, etc.). You may review a Privacy protect persons and vessels from the hand delivery, but please use only one Act notice regarding our public dockets potential safety hazards associated with of these means as instructed in the in the January 17, 2008, issue of the congested maritime traffic on the Lower ADDRESSES section. If you submit a Federal Register (73 FR 3316). Mississippi River. comment online via www.regulations.gov, it will be DATES: Comments and related material Public Meeting considered received by the Coast Guard must be received by the Coast Guard on We do not now plan to hold a public when you successfully transmit the or before June 18, 2012. meeting. But you may submit a request comment. If you fax, hand deliver, or for one on or before June 18, 2012 using ADDRESSES: You may submit comments mail your comment, it will be one of the four methods specified under identified by docket number USCG– considered as having been received by ADDRESSES. Please explain why you 2010–0012 using any one of the the Coast Guard when it is received at believe a public meeting would be following methods: the Docket Management Facility. We (1) Federal eRulemaking Portal: beneficial. If we determine that one recommend that you include your name would aid this rulemaking, we will hold http://www.regulations.gov. and a mailing address, an email address, (2) Fax: 202–493–2251. one at a time and place announced by or a telephone number in the body of a later notice in the Federal Register. (3) Mail: Docket Management Facility your document so that we can contact (M–30), U.S. Department of For information on facilities or you if we have questions regarding your services for individuals with disabilities Transportation, West Building Ground submission. Floor, Room W12–140, 1200 New Jersey or to request special assistance at the To submit your comment online, go to public meeting, contact LCDR Marcie L. Avenue SE., Washington, DC 20590– http://www.regulations.gov, click on the 0001. Kohn at the telephone number or email ‘‘submit a comment’’ box, which will address indicated under the FOR (4) Hand delivery: Same as mail then become highlighted in blue. In the address above, between 9 a.m. and FURTHER INFORMATION CONTACT section of ‘‘Document Type’’ drop down menu this notice. 5 p.m., Monday through Friday, except select ‘‘Proposed Rule’’ and insert Federal holidays. The telephone number ‘‘USCG–2010–0012’’ in the ‘‘Keyword’’ Basis and Purpose is 202–366–9329. box. Click ‘‘Search’’ then click on the The Coast Guard proposes to establish To avoid duplication, please use only balloon shape in the ‘‘Actions’’ column. a moving safety zone around each large one of these four methods. See the If you submit your comments by mail or cruise ship as it transits the Lower ‘‘Public Participation and Request for hand delivery, submit them in an Mississippi River between the Port of Comments’’ portion of the unbound format, no larger than 81⁄2 by New Orleans Cruise Ship Terminal, SUPPLEMENTARY INFORMATION section 11 inches, suitable for copying and mile marker 96.0, and the Southwest below for instructions on submitting electronic filing. If you submit Pass Sea Buoy to address the increasing comments. comments by mail and would like to risk to safe navigation. For the purpose FOR FURTHER INFORMATION CONTACT: If know that they reached the Facility, of this rule, the term ‘‘large cruise ship’’ you have questions on this proposed please enclose a stamped, self-addressed is defined as a vessel over 100 feet in rule, call or email Lieutenant postcard or envelope. We will consider length, carrying more than 500 Commander (LCDR) Marcie L. Kohn, all comments and material received passengers for hire, making a voyage Sector New Orleans, Coast Guard; during the comment period and may lasting more than 24 hours, any part of telephone 504–365–2281, email change the rule based on your which is on the high seas, and for which [email protected]. If you have comments. passengers are embarked or

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disembarked in the United States or its Regulation and Regulatory Review, and significant economic impact on it, territories. does not require an assessment of please submit a comment (see The marine transportation system on potential costs and benefits under ADDRESSES) explaining why you think it the lower Mississippi river has seen a section 6(a)(3) of that Executive Order qualifies and how and to what degree sustained growth over the years and 12866 or under section 1 of Executive this rule would economically affect it. there are more vessels on the river than Order 13563. The Office of Management ever before. If a marine accident occurs and Budget has not reviewed it under Assistance for Small Entities involving a large cruise ship there is a that those Orders. The impacts on Under section 213(a) of the Small significantly higher potential for loss of routine navigation are expected to be Business Regulatory Enforcement life than with any other type of minimal. The proposed moving safety Fairness Act of 1996 (Pub. L. 104–121), commercial vessel. Therefore to mitigate zones will not interfere with a vessel’s we want to assist small entities in the risks and consequences associated ability to make passing and overtaking understanding this proposed rule so that with the higher traffic, the reduction of arrangements. Routine navigation they can better evaluate its effects on navigable space, and to protect lives, the around and near the proposed safety them and participate in the rulemaking. Coast Guard proposes a moving safety zones will not be impacted. The If the rule would affect your small zone around each large cruise ship. This proposed moving safety zone is business, organization, or governmental proposed rule is intended to establish intended to enable early notification of jurisdiction and you have questions early passing or overtaking passing or overtaking arrangements, concerning its provisions or options for arrangements thus increasing the time providing additional time and compliance, please contact LCDR available for safe maneuvering. opportunity to negotiate navigational Marcie L. Kohn. The Coast Guard will arrangements and to maneuver without Discussion of Proposed Rule not retaliate against small entities that causing delay in transit for both the question or complain about this Nothing in this proposed rule large cruise ship and the other vessels proposed rule or any policy or action of supersedes the United States Coast operating in the area. Guard Navigation Rules. This rule the Coast Guard. Small Entities proposes implementing a moving safety Collection of Information zone extending from bank to bank, Under the Regulatory Flexibility Act encompassing one-mile ahead and one- (5 U.S.C. 601–612), we have considered This proposed rule would call for no mile astern of each large cruise ship whether this proposed rule would have new collection of information under the transiting the Lower Mississippi River a significant economic impact on a Paperwork Reduction Act of 1995 (44 between mile marker 96.0 and the substantial number of small entities. U.S.C. 3501–3520.). The term ‘‘small entities’’ comprises Southwest Pass Sea Buoy. This Federalism proposed rule is intended to protect small businesses, not-for-profit persons and vessels from the potential organizations that are independently A rule has implications for federalism safety hazards associated with owned and operated and are not under Executive Order 13132, congested maritime traffic on the Lower dominant in their fields, and Federalism, if it has a substantial direct Mississippi River. All persons or vessels governmental jurisdictions with effect on State or local governments and will be prohibited from entering this populations of less than 50,000. would either preempt State law or safety zone, with the following The Coast Guard certifies under 5 impose a substantial direct cost of exceptions. Moored or anchored vessels U.S.C. 605(b) that this proposed rule compliance on them. We have analyzed will be permitted to remain in their would not have a significant economic this proposed rule under that Order and current positions. Fleet vessels will be impact on a substantial number of small have determined that it does not have permitted to continue operations. entities. The proposed moving safety implications for federalism. Permission to enter the safety zone will zones are intended to enable early be obtained by making passing notification that passing or overtaking Unfunded Mandates Reform Act arrangements may be necessary, arrangements with the pilot on board The Unfunded Mandates Reform Act providing additional time and the large cruise ship. The Captain of the of 1995 (2 U.S.C. 1531–1538) requires opportunity to negotiate navigational Port New Orleans, (COTP) will use Federal agencies to assess the effects of arrangements, giving both vessels broadcast notices to mariners to notify their discretionary regulatory actions. In sufficient time to maneuver without vessel operators when the safety zone is particular, the Act addresses actions causing delay in transit. in place. The pilot onboard the large that may result in the expenditure by a cruise ship will be authorized to allow This proposed rule will affect the following entities, some of which may State, local, or tribal government, in the other vessels to enter the safety zone aggregate, or by the private sector of when necessary. be small entities: The owners or operators of vessels intending to transit $100,000,000 (adjusted for inflation) or Regulatory Analyses the Lower Mississippi River between more in any one year. Though this We developed this proposed rule after mile marker 96.0, New Orleans, LA and proposed rule would not result in such considering numerous statutes and the Southwest Pass Sea Buoy during an expenditure, we do discuss the executive orders related to rulemaking. large cruise ship transits. effects of this rule elsewhere in this Below we summarize our analyses If you are a small business entity and preamble. based on a number of these statutes or are significantly affected by this Taking of Private Property executive orders. regulation please contact Lieutenant Commander (LCDR) Marcie L. Kohn, This proposed rule would not effect a Regulatory Planning and Review Sector New Orleans, at 504–365–2281 or taking of private property or otherwise This rule is not a significant email [email protected]. have taking implications under regulatory action under section 3(f) of If you think that your business, Executive Order 12630, Governmental Executive Order 12866, Regulatory organization, or governmental Actions and Interference with Planning and Review, as supplemented jurisdiction qualifies as a small entity Constitutionally Protected Property by Executive Order 13563, Improving and that this rule would have a Rights.

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Civil Justice Reform adopted by voluntary consensus 96.0 in New Orleans, Louisiana. The This proposed rule meets applicable standards bodies. moving safety zone extends bank to standards in sections 3(a) and 3(b)(2) of This proposed rule does not use bank, encompassing all waters one-mile Executive Order 12988, Civil Justice technical standards. Therefore, we did ahead and one-mile astern of a large Reform, to minimize litigation, not consider the use of voluntary cruise ship. The zone remains in effect eliminate ambiguity, and reduce consensus standards. during the entire transit of the large burden. Environment cruise ship. Protection of Children We have analyzed this proposed rule (b) Definitions. For the purpose of this under Department of Homeland rule, the term ‘‘large cruise ship’’ is We have analyzed this proposed rule Security Management Directive 023–01 defined as a vessel over 100 feet in under Executive Order 13045, and Commandant Instruction length, carrying more than 500 Protection of Children from M16475.lD, which guide the Coast passengers for hire, making a voyage Environmental Health Risks and Safety Guard in complying with the National lasting more than 24 hours, any part of Risks. This rule is not an economically Environmental Policy Act of 1969 which is on the high seas, and for which significant rule and would not create an (NEPA) (42 U.S.C. 4321–4370f), and passengers are embarked or environmental risk to health or risk to have made a preliminary determination disembarked in the United States or its safety that might disproportionately that this action is one of a category of territories. affect children. actions which do not individually or (c) Regulations. (1) In accordance with Indian Tribal Governments cumulatively have a significant effect on the general regulations in 33 CFR Part This proposed rule does not have the human environment. This rule 165, Subpart C, no person or vessel may involves establishing, disestablishing or tribal implications under Executive enter or remain in the Safety Zone changing a regulated navigation area Order 13175, Consultation and except for vessels authorized by the and as such is categorically excluded, Coordination with Indian Tribal Captain of the Port or Designated Governments, because it would not have under figure 2–1, paragraph (34)(g) of the Instruction. A preliminary Representatives, except as provided for a substantial direct effect on one or in paragraph (c)(2) of this section. more Indian tribes, on the relationship ‘‘Environmental Analysis Check List’’ (2) For this section the Pilot directing between the Federal Government and supporting this determination is Indian tribes, or on the distribution of available in the docket where indicated the movement of the large cruise ship power and responsibilities between the under ADDRESSES. We seek any under the authority of the master has Federal Government and Indian tribes. comments or information that may lead the authority to allow other vessels to to the discovery of a significant enter the safety zone when necessary. Energy Effects environmental impact from this (2) All vessels are prohibited from proposed rule. We have analyzed this proposed rule entering this safety zone unless under Executive Order 13211, Actions List of Subjects in 33 CFR Part 165 authorized as follows: Concerning Regulations That Harbors, Marine safety, Navigation (i) Vessels that have made suitable Significantly Affect Energy Supply, (water), Reporting and recordkeeping passing or overtaking arrangements with Distribution, or Use. We have requirements, Security measures, determined that it is not a ‘‘significant the pilot onboard the large cruise ship Waterways. energy action’’ under that order because may enter into this safety zone in it is not a ‘‘significant regulatory action’’ For the reasons discussed in the accordance with those agreed upon under Executive Order 12866 and is not preamble, the Coast Guard proposes to arrangements. likely to have a significant adverse effect amend 33 CFR Part 165 as follows: (ii) Moored vessels or vessels on the supply, distribution, or use of anchored in a designated anchorage area PART 165—REGULATED NAVIGATION energy. The Administrator of the Office AREAS AND LIMITED ACCESS AREAS may remain in their current moored or of Information and Regulatory Affairs anchored position while the large cruise has not designated it as a significant 1. The authority citation for part 165 ship transits the area. energy action. Therefore, it does not continues to read as follows: (iii) Barge Fleets or vessels working a require a Statement of Energy Effects Authority: 33 U.S.C. 1231; 46 U.S.C. fleet may continue their current under Executive Order 13211. Chapter 701, 3306, 3703; 50 U.S.C. 191, 195; operations while the large cruise ship Technical Standards 33 CFR 1.05–1, 6.04–1, 6.04–6 and 160.5; transits the area. Pub. L. 107–295, 116 Stat. 2064; Department The National Technology Transfer of Homeland Security Delegation No. 0170.1. (3) Vessels requiring a deviation from and Advancement Act (NTTAA) (15 this rule must request permission from 2. Add § 165.839 to read as follows: U.S.C. 272 note) directs agencies to use the Captain of the Port New Orleans. voluntary consensus standards in their § 165.839 Safety Zone; Large Cruise The Captain of the Port New Orleans regulatory activities unless the agency Ships; Lower Mississippi River, Southwest may be contacted at (504) 365–2210. provides Congress, through the Office of Pass Sea Buoy to Mile Marker 96.0, New Dated: March 26, 2012. Management and Budget, with an Orleans, LA. explanation of why using these (a) Location. Within the Lower P.W. Gautier, standards would be inconsistent with Mississippi River and Southwest Pass, Captain, U.S. Coast Guard, Captain of the applicable law or otherwise impractical. moving safety zones are established Port New Orleans. Voluntary consensus standards are around all large cruise ships transiting [FR Doc. 2012–11923 Filed 5–16–12; 8:45 am] technical standards (e.g., specifications between the Southwest Pass Entrance BILLING CODE 9110–04–P of materials, performance, design, or Lighted Buoy ‘‘SW’’, at approximate operation; test methods; sampling position 28[deg]52[min]42[sec] N, procedures; and related management 89[deg]25[min]54[sec] W [NAD 83] and systems practices) that are developed or Lower Mississippi River mile marker

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LIBRARY OF CONGRESS along with names and organizations. If history/1909act-1973.pdf. Courts electronic submission of comments is interpreted the bundle of exclusive Copyright Office not feasible, please contact the rights under the 1909 Act to be Copyright Office at 202–707–8125 for indivisible, i.e., individual rights (such 37 CFR Part 202 special instructions. as the right to copy a work or the right to perform a work publicly) could not be [Docket No. 2012–3] FOR FURTHER INFORMATION CONTACT: Robert Kasunic, Deputy General assigned to different persons or entities. Registration of Copyright: Definition of Counsel, Copyright Office, GC/I&R, P.O. See, e.g., Goldwyn Pictures Corp. v. Claimant Box 70400, Washington, DC 20024. Howells Sales Co., 282 F. 9 (2d Cir. Telephone: (202) 707–8380. Fax: (202) 1922); M. Witmark & Sons v. Pastime AGENCY: Copyright Office, Library of 707–8366. Amusement Co., 298 F. 470 (E.D.S.C. Congress. SUPPLEMENTARY INFORMATION: The 1924); New Fiction Publishing Co. v. ACTION: Notice of proposed rulemaking. Copyright Act specifies certain Star Co., 220 F. 994 (S.D.N.Y. 1915). conditions and requirements for The reality that copyrights could be SUMMARY: The Copyright Office copyright registration. See generally, 17 assigned in whole but not in part led to proposes to amend its regulations U.S.C. 408 and 409. Among the a strained and illogical marketplace: An governing the definition of a ‘‘claimant’’ requirements of section 409 is that an author could (and frequently did) for purposes of copyright registration by application for registration must disaggregate his copyright for the benefit eliminating the footnote to the identify the name and address of the of multiple parties if licensing rights on definition of a ‘‘claimant’’ in copyright claimant. The Copyright Act a nonexclusive basis, but could not do § 202.3(a)(3)(ii). The footnote currently does not define the term ‘‘claimant.’’ so when assigning or otherwise offering extends the definition of a claimant to On January 5, 1978, the Copyright his rights on an exclusive basis. include individuals or entities that have Office published interim regulations Moreover, the legitimate rights of obtained the contractual right to claim that include a definition of copyright licensees were often confused or legal title to copyright in an application ‘‘claimant’’ for purposes of copyright inadequate in the context of litigation. for copyright registration. This registration. 43 FR 965 (January 5, 1978) Former Register of Copyrights Abraham amendment would clarify that the (hereinafter, ‘‘Interim Regulation’’). Kaminstein highlighted the issue in copyright claimant must be either the Section 202.3(a)(3) states: 1960 in a Copyright Office Study for the author of the work, or a person or For the purposes of this section, a Copyright Revision Process: organization that has obtained copyright claimant is either: Every major bill to revise the copyright law ownership of all of the exclusive rights (i) The author of the work; first enacted in 1909 has included provisions initially belonging to the author. The (ii) A person or organization that has for divisibility as one of the three or four Copyright Office believes that the obtained ownership of all rights under crucial issues. For a time, authors believed footnote creates considerable legal the copyright initially belonging to the divisibility so vital to their interests that they uncertainty while offering no clear author. made it their most important legislative goal. benefits to the registration system. The Interim Regulation also included a Kaminstein, Divisibility of Copyrights, Removing it will foster the use of other footnote at the end of this definition that Copyright Off. Study No. 11 (1960), available registration options that create stated: ‘‘This category includes a person available at: http://www.copyright.gov/ a more meaningful public record. or organization that has obtained, from history/studies/study11.pdf. DATES: Written comments are due July the author or from an entity that has Indeed, the revised law, the Copyright 16, 2012. Reply comments are due obtained ownership of all rights initially Act of 1976, represented a sea change, August 15, 2012. belonging to the author, the contractual as the ‘‘first explicit statutory ADDRESSES: The Copyright Office right to claim legal title to the copyright recognition of the principle of strongly prefers that comments be in an application for copyright divisibility of copyright in our law.’’ submitted electronically. A comment registration.’’ Copyright Law Revision, H.R. Rep. 94– page containing a comment form is Unfortunately, neither the Interim 1476 at 123 (1976). Under section posted on the Copyright Office Web site Regulation nor the Federal Register 201(d)(1) of the 1976 Act, Congress at http://www.copyright.gov/docs/ notice announcing it provided an specified that ‘‘copyright ownership claimantfn/. The online form contains explanation for the footnote and one can may be transferred in whole or in part fields for required information therefore only speculate as to the reason by any means of conveyance or by including the name and organization of it was crafted. Moreover, the right to operation of law, and may be the commenter, as applicable, and the register a work is not one of the section bequeathed by will or pass as personal ability to upload comments as an 106 exclusive rights that would entitle property by the applicable laws of attachment. To meet accessibility a person or entity to be considered an intestate succession.’’ 17 U.S.C. standards, all comments must be owner of a copyright. That said, viewed 201(d)(1) In subsection 201(d)(2), uploaded in a single file in either the in context, it is at least possible that the Congress further stated that ‘‘[a]ny of the Adobe Portable Document File (PDF) footnote was designed to accommodate exclusive rights comprised in a format that contains searchable, registration problems that could occur copyright, including any subdivision of accessible text (not an image); Microsoft under the new principle of divisibility any of the rights specified in section Word; WordPerfect; Rich Text Format of copyright embraced by the Copyright 106, may be transferred as provided by (RTF); or ASCII text file format (not a Act of 1976. clause (1) and owned separately. The scanned document). The maximum file The 1909 Act was silent on the owner of any exclusive right is entitled, size is 6 megabytes (MB). The name of divisibility of copyright rights, although to the extent of that right, to all of the the submitter and organization should it used the singular form when protection and remedies afforded to the appear on both the form and the face of addressing both ‘‘copyright’’ and copyright owner by this title.’’ 17 U.S.C. the comments. All comments will be ‘‘copyright proprietor. ’’ See, e.g., 17 201(d)(2). See also, 17 U.S.C. 101 posted publicly on the Copyright Office U.S.C. 2, 3, 9, 10, and 11 (1909 Act), ‘‘copyright owner’’ (‘‘Copyright owner, Web site exactly as they are received, available at: http://www.copyright.gov/ with respect to any one of the exclusive

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rights comprised in a copyright, refers to initial unified bundle of rights fails to a transfer of an exclusive right, may be the owner of that particular right’’) and register a work before transferring recorded with the Copyright Office. ‘‘transfer of copyright ownership’’ (‘‘A ownership in one or more of those Thus, the existence of the footnote ‘‘transfer of copyright ownership’’ is an exclusive rights (or a subpart of an cannot be justified by reference to cases assignment, mortgage, exclusive license, exclusive right), it might appear that a where the original author no longer or any other conveyance, alienation, or proper claimant could not exist—the owns all (or any) of the rights in the hypothecation of a copyright or of any author, having divested his or her work. However, the footnote may have of the exclusive rights comprised in a interest in an exclusive right would no been rooted in another, more copyright, whether or not it is limited in longer own all rights, and the owner of complicated situation faced by the time or place of effect, but not including a single exclusive right would not be authors of collective works. Where an a nonexclusive license’’). eligible to be a claimant under the author of a contribution to a collective Implementing the principle of regulatory definition. However, this work assigns one (or perhaps a few) of divisibility into the registration system view is incorrect, because an author the exclusive rights to the publisher of of the Copyright Office presented its may always be named as a proper a collective work, such as an article own set of challenges, both conceptual claimant in a work, even when an contributed to a serial issue, how could and practical. For example, should an author no longer owns all of the the collective work author register its owner of an individual right be entitled exclusive rights in a copyright. This is copyright interest in the contribution? If individually to register a claims to that true even if an author transfers all rights the publisher registers the collective particular right? How many registrations in a work, because an author may work, the registration could cover the should be available for any particular always have a reversionary or beneficial selection and arrangement of the work? See, Notice of Inquiry on interest in the work. See e.g., 17 U.S.C. articles, along with the articles authored Applications for Registration of Claim of 304(c) and 203. Where an author by the collective work author, and those Copyright under Revised Copyright Act, transfers an exclusive right, either the works for which the collective work 42 FR 48944 (September 26, 1977) author or the owner of an exclusive author owns all of the exclusive rights. (raising these and other questions). right may submit an application for But the registration would not extend to The 1978 interim regulations resolved registration listing the author as both the those works contained in the collective many of these questions. They author and the claimant in the work.1 work for which the collective work established a general rule that there See 37 CFR 202.1(a)(3).2 Once a work author owns less than all rights. See, should be only one registration per work listing the author and a proper claimant e.g., Morris v. Business Concepts, Inc., and that the transfer of ownership of is registered, the work as a whole is 259 F.3d 65, 70 (2d Cir. N.Y. 2001). As exclusive rights could be adequately registered, including all of the divisible the Second Circuit makes clear in addressed through the Office’s exclusive rights (and subparts therein) Morris, the fact that a registration of a recordation system. Interim Regulation, previously or later transferred. collective work does not cover every 43 FR 965 (January 5, 1978). However, Regardless of when the disaggregation of work contained in that collective work neither the 1977 Notice nor the Interim the exclusive rights occurs—either in no way precludes protection for, or Regulation explained the inclusion of before or after registration—the author registration of, a component work for the footnote. In fact, the Interim may always be listed as a proper which all rights were not transferred. Regulation acknowledged that a copyright claimant in an application for Either the author of the component claimant should be defined narrowly: registration.3 After registration for the work or the collective work author, work has occurred, any document filing on behalf of the author/claimant, Prompted by the implications of that would simply be required to register Notice, several comments, including a relating to that registered work, such as persuasive practical and legal analysis such component works in a separate prepared by the Authors League of America, 1 Where the owner of an exclusive right submits registration. Id., at 71–72. Inc. strongly urged that the copyright a claim listing the author as author and claimant, Although separate registration is ‘‘claimant’’ to be identified in an application the owner of the exclusive right would list himself available for unregistered contributions and registration under section 409(c) of the or herself (or his or her agent) as the correspondent to works for which less than all rights Act not be equated with the owner of one or or person certifying the application. See, 37 CFR 202.1(c)(2)(i). Moreover, to provide a public record have been transferred, the collective more, but less than all, of the rights under a of the transfer of one or more exclusive rights from work author would likely find it copyright. We agree with the view expressed the author/claimant to the transferee, the owner of preferable to submit one application to in these comments; we do not believe that the exclusive right could record the document cover every unregistered work the concept of ‘‘divisibility of copyright’’ was transferring rights with the Copyright Office. See, intended to allow the owner of an individual 17 U.S.C. 205. contained in the collective work. Under right or rights to claim, or appear to claim, 2 ‘‘(3) For the purposes of this section, a copyright the rule stated in the footnote, collective on our records, ownership of the entire claimant is either: work authors may accomplish this if copyright. As pointed out in the comments, (i) The author of a work; they received the contractual right to such a result would lead to a misleading and (ii) A person or organization that has obtained claim legal title for purposes of inaccurate public record, and subvert the ownership of all rights under the copyright initially registration. purpose of the registration system. belonging to the author.’’ (Emphasis in original; footnote omitted.) The principal problem with this Accordingly, interim § 202.3(a)(3) makes 3 approach is that it would seem to allow clear that the copyright ‘‘claimant’’ for In discussions with former Copyright Office staff members involved in the rulemaking that led to the a person or entity to claim title for purposes of copyright registration is the Interim Regulations, the Office has heard two purposes of copyright registration even author of the work for which registration is theories as to why the footnote was included: To if such a person or entity was not in fact sought, or a person or organization that has address issues involving publishers of periodicals obtained all rights under the copyright who wished to register claims in the periodical as the owner of any exclusive rights. While initially belonging to the author. well as the articles included in the periodical, and/ an argument could be made that the or to address issues involving registration of 1976 Act allows the owner of an Id. musical compositions for which nonexclusive exclusive right to claim the copyright as The contradiction between the above rights had been granted to performing rights 4 organizations. The Office has found no evidence to a copyright owner, there is no clear passage and the footnote is difficult to support these theories, but welcomes comments explain. Conceivably, there was concern from the public that may shed light on the reasons 4 17 U.S.C. 101 (definition of ‘‘copyright owner’’: that when an author possessing the for the inclusion of the footnote. ‘‘Copyright owner, with respect to any one of the

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foundation in the statutory language for footnote fosters questionable claims of PART 202—PREREGISTRATION AND allowing a person or organization with ownership due to its ambiguous REGISTRATION OF CLAIMS TO less than a copyright ownership interest language. COPYRIGHT in an exclusive right to be considered a The elimination of the footnote would owner of copyright or a valid claimant 1. The authority citation for part 202 leave numerous options for registering of a claim to copyright. The bald right is revised to read as follows: works to authors and copyright owners, to register a work is not one of the Authority: 17 U.S.C. 408, 409, 702. including the owners of a single section 106 exclusive rights. Only the 2. Amend sec. 202.3 paragraph owner of an exclusive right (or exclusive right. As noted above, the owner of an exclusive right may always (a)(3)(ii) as follows: subdivision thereof) is entitled, to the a. In paragraph (ii), remove footnote 1. extent of that right, to all of the register a claim in the work by listing protection and remedies accorded to the the author as the claimant. Any Dated: May 10, 2012. copyright owner by title 17. See, 17 authorized agent of the author, the Maria A. Pallante, U.S.C. 201(d)(2).5 owner of all rights, or the owner of an Register of Copyrights. The above discussion poses more than exclusive may similarly file an [FR Doc. 2012–11879 Filed 5–16–12; 8:45 am] a theoretical problem. While the Office application for registration on behalf of BILLING CODE 1410–30–P recognizes that transfers may be limited a valid claimant by filling out the in time and duration, see, Bean v. Littell, application and certifying their 669 F. Supp.2d 1031 (D. Ariz. 2008), relationship to the claimant. LIBRARY OF CONGRESS recent court decisions have questioned what it means to claim legal title to In the case of collective works, the Copyright Royalty Board copyright when in fact the ‘‘claimant’’ author of articles contributed to a does not in fact own any section 106 number of periodicals may avail himself 37 CFR Part 385 or herself to the group registration rights or may technically own those [Docket No. 2011–3 CRB Phonorecords II] rights, but does not have the ability to option for contributions to periodicals exercise any of the exclusive rights.6 At established pursuant to section 408(d) of Adjustment of Determination of least one court has held that the the Copyright Act. See, 37 CFR Compulsory License Rates for standing to sue for copyright 202.3(b)(8). A number of other group Mechanical and Digital Phonorecords infringement is absent when underlying registration options exist for other types AGENCY: Copyright Royalty Board, agreements distort or misrepresent such of works, such as for unpublished Library of Congress. claimants’ interests in and to the collections and for published ACTION: ownership of exclusive rights. ‘‘If the photographs. See, 37 CFR 202.3(a)(4) Proposed rule. plaintiff is not a proper owner of the and 202.3(b)(10). SUMMARY: The Copyright Royalty Judges copyright rights, then it cannot invoke In light of the concerns raised about are publishing for comment proposed copyright protection stemming from the the footnote and the alternative regulations that set the rates and terms exclusive rights belonging to the owner, for the section 115 statutory license for including infringement of the registration options available to 7 claimants, the owners of one or more the use of musical works in physical copyright.’’ While the Copyright Office phonorecord deliveries, permanent does not believe that all transfers relying exclusive rights, and agents of such persons or entities, the Office believes digital downloads, ringtones, interactive on the footnote necessarily misrepresent streaming, limited downloads, limited who is a valid copyright claimant, there that elimination of the footnote is warranted. The Office believes that the offerings, mixed service bundles, music exists the real possibility that the bundles, paid locker services and elimination of the footnote would have purchased content locker services. exclusive rights comprised in a copyright, refers to no discernable adverse effect on the DATES: the owner of that particular right’’). However, the ability to register works, would foster a Comments and objections, if any, concept of a copyright ‘‘owner’’ need not be are due no later than June 18, 2012. more accurate and meaningful record of congruent with the concept of a copyright ADDRESSES: Comments and objections registration ‘‘claimant.’’ As explained supra, if an authorship and ownership, and would owner of an exclusive right could register a work, reduce the possibility of fraudulent or may be sent electronically to there would either be multiple registrations for [email protected]. In the alternative, send an misleading claims. Removal of the particular works, thus violating the general rule of original, five copies, and an electronic only one registration per work, or one registration footnote would also reduce the copy on a CD either by mail or hand by the first owner to register, thus leading to a occurrence of litigation over the validity delivery. Please do not use multiple misleading and inaccurate public record. of misleading transfers by creating a 5 That provision may also be interpreted to means for transmission. Comments and distinguish an owner of an exclusive right from a bright line rule, consistent with the objections may not be delivered by an ‘‘copyright owner’’ in the broader sense of the rationale expressed for the original overnight delivery service other than the owner of all rights. Interim Regulation, for determining who 6 Righthaven LLC v. Mostofi, 2011 U.S. Dist. U.S. Postal Service Express Mail. If by LEXIS 75810 (D. Nev. July 13, 2011). See also, may assert a claim of copyright. The mail (including overnight delivery), Silvers v. Sony Pictures Entertainment, Inc., 402 Copyright Office seeks public comment comments and objections must be F.3d 881 (9th Cir. 2005), cert. den’d 546 U.S. 827 on this intended amendment to the addressed to: Copyright Royalty Board, (2005) (The right to sue for an accrued claim for infringement is not an exclusive right under 17 definition of a ‘‘claimant.’’ P.O. Box 70977, Washington, DC 20024– U.S.C.S. 106. Moreover, the bare assignment of an List of Subjects in 37 CFR Part 202 0977. If hand delivered by a private accrued cause of action is impermissible under 17 party, comments and objections must be U.S.C.S. 501(b).) brought between 8:30 a.m. and 5 p.m. to 7 Righthaven LLC v. Mostofi, 2011 U.S. Dist. Copyright, Registration. LEXIS 75810 (D. Nev. July 13, 2011), quoting, the Copyright Office Public Information Silvers v. Sony Pictures Entertainment, Inc., 402 Proposed Regulation Office, Library of Congress, James F.3d 881 (9th Cir. 2005), quoting, 4 Business and Madison Memorial Building, Room LM– In consideration of the foregoing, the Commercial Litigation in Federal Courts, at 1062 401, 101 Independence Avenue SE., § 65.3(a)(4) (Robert Haig ed.). Accord, Righthaven Copyright Office proposes to amend part Washington, DC 20559–6000. If LLC v. Inform Techs., Inc., 2011 U.S. Dist. LEXIS 202.3(a)(3) as follows: 119379 (D. Nev. Oct. 14, 2011). delivered by a commercial courier,

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comments and objections must be commenced in January 2011. 17 U.S.C. the participants in a proceeding at any delivered between 8:30 a.m. and 4 p.m. 804(b)(4). time during the proceeding’’ provided to the Congressional Courier Acceptance Accordingly, the Judges published a they are submitted to the Judges for Site located at 2nd and D Street NE., notice commencing the current approval. This section provides that in Washington, DC, and the envelope must proceeding and requesting interested such event: be addressed to: Copyright Royalty parties to submit their petitions to (i) The Copyright Royalty Judges shall Board, Library of Congress, James participate. 76 FR 590 (January 5, 2011). provide to those that would be bound by the Madison Memorial Building, LM–403, Petitions to Participate were received terms, rates, or other determination set by 101 Independence Avenue SE., from: Microsoft Corporation any agreement in a proceeding to determine Washington, DC 20559–6000. (‘‘Microsoft’’); Omnifone Group Limited royalty rates an opportunity to comment on (‘‘Omnifone’’); CTIA—The Wireless the agreement and shall provide to FOR FURTHER INFORMATION CONTACT: Association (‘‘CTIA’’); Cricket participants in the proceeding under section LaKeshia Keys, Program Specialist, by Communications, Inc. (‘‘Cricket’’); 803(b)(2) that would be bound by the terms, telephone at (202) 707–7658 or email at PacketVideo, Inc. (‘‘PacketVideo’’); rates, or other determination set by the [email protected]. agreement an opportunity to comment on the Slacker, Inc. (‘‘Slacker’’); Google, Inc. agreement and object to its adoption as a SUPPLEMENTARY INFORMATION: Section (‘‘Google’’); Amazon Digital Services, basis for statutory terms and rates; and 115 of the Copyright Act, title 17 of the Inc. (‘‘Amazon’’); Beyond Oblivion, Inc. (ii) The Copyright Royalty Judges may United States Code, also known as the (‘‘Beyond Oblivion’’); AT&T Mobility decline to adopt the agreement as a basis for mechanical compulsory license, LLC (‘‘AT&T Mobility’’); Rdio, Inc. statutory terms and rates for participants that requires a copyright owner of a (‘‘Rdio’’); Apple, Inc. (‘‘Apple’’); the are not parties to the agreement, if any nondramatic musical work to grant a Recording Industry Association of participant described in clause (i) objects to license to any person who wants to America, Inc. (‘‘RIAA’’); Rhapsody the agreement and the Copyright Royalty make and distribute phonorecords of International, Inc. (‘‘Rhapsody’’); Judges conclude, based on the record before that work, provided that the copyright RealNetworks, Inc. (‘‘RealNetworks’’); them if one exists, that the agreement does not provide a reasonable basis for setting owner has allowed phonorecords of the 2 Thumbplay, Inc. (‘‘Thumbplay’’); statutory terms or rates. work to be produced and distributed, Pandora Media, Inc. (‘‘Pandora’’); The and that the licensee complies with the American Association of Independent 17 U.S.C. 801(b)(7)(A). Rates and terms statute and regulations. Music (‘‘A2IM’’); Music Reports, Inc. adopted pursuant to this provision are On November 1, 1995, Congress (‘‘Music Reports’’); the National Music binding on all copyright owners of passed the Digital Performance Right in Publishers’ Association, Inc., musical works and those using such Sound Recordings Act of 1995 Songwriters Guild of America, Nashville musical works in the activities set forth (‘‘DPRSRA’’), Public Law 104–39, 109 Songwriters Association International in the proposed regulations. Stat. 336, which extended the and Church Music Publishers In publishing the parties’ proposed mechanical license to digital Association, jointly (collectively, rates and terms, the Judges are removing phonorecord deliveries. 17 U.S.C. ‘‘Copyright Owners’’); EMI Music two provisions and seeking comment on 115(c)(3). Consequently, the license now Publishing (‘‘EMI’’); the Songwriters two others. The parties have included covers digital transmissions of Guild of America (‘‘SGA’’); Napster, LLC language in proposed §§ 385.10(c) and phonorecords in addition to the (‘‘Napster’’); the Digital Media 385.20(c) that states that ‘‘[n]either this physical copies such as compact discs, Association (‘‘DiMA’’); and Broadcast subpart nor the act of obtaining a license vinyl and cassette tapes. Chapter 8 of Music, Inc. (‘‘BMI’’).3 The Judges set the under 17 U.S.C. 115 * * * and shall not the Copyright Act requires the timetable for the three-month constitute evidence, as to the Copyright Royalty Judges (‘‘Judges’’) to negotiation period, see 17 U.S.C. circumstances in which any of the conduct proceedings every five years to 803(b)(3), and directed the participants exclusive rights of a copyright owner are determine the rates and terms for the to submit their written direct statements implicated or a license, including a section 115 license.1 17 U.S.C. 801(b)(1), no later than April 30, 2012. On April compulsory license pursuant to 17 804(b)(4). In accordance with section 11, 2012, the Judges received a Motion U.S.C. 115, must be obtained.’’ Our task, 804(b)(4), the Judges commenced a to Adopt Settlement stating that ‘‘[a]ll as set forth in section 115 and chapter proceeding to set rates and terms for the participants in the Proceeding are 8 of the Copyright Act, is to adopt rates section 115 license on January 9, 2006, parties to the Settlement or have and terms for the compulsory license for 71 FR 1454, and their final reviewed the Settlement and do not the making and distributing of physical determination of said rates and terms object to its being adopted as the basis and digital phonorecords. It is not our was published in the Federal Register for setting statutory rates and terms.’’ 4 task to offer evaluations, limitations or on January 26, 2009. 74 FR 4510. Motion to Adopt Settlement at 2 (April characterizations of the rates and terms. Therefore, the next proceeding to 11, 2012). Therefore, the Judges decline to include determine rates and terms for the Section 801(b)(7)(A) of the Copyright the language ‘‘and shall not constitute section 115 license was to be Act authorizes the Judges to adopt rates evidence’’ in our regulations. See and terms negotiated by ‘‘some or all of Mechanical and Digital Phonorecord Delivery Rate Determination Proceeding, 1 The Copyright Royalty Judges, which were established by the Copyright Royalty and 2 Thumbplay withdrew from the proceeding on Notice of proposed rulemaking, Docket Distribution Reform Act of 2004, are the third entity April 5, 2012. No. 2006–3 CRB DPRA, 73 FR 57033, to set the rates and terms for the section 115 license. 3 BMI’s filing was styled as ‘‘Comments in 57034 (October 1, 2008); Until its abolishment in 1993, the Copyright Response to Request for Petitions to Participate,’’ Noncommercial Educational Royalty Tribunal (‘‘CRT’’) had the authority to and BMI withdrew its comments on December 1, adjust the statutory rates for the section 115 license. 2011. Broadcasting Statutory License, Notice After 1993, Congress granted authority to Copyright 4 Music Reports’ signature was inadvertently of proposed rulemaking, Docket No. Arbitration Royalty Panels (‘‘CARP’’), under the omitted from the motion; its signature was provided 2006–2 CRB NCBRA, 72 FR 19138, supervision of the Librarian of Congress, to set rates on April 18, 2012. Since neither Beyond Oblivion 19139 (April 17, 2007). and, unlike the CRT, to also adopt terms for the nor Napster were signatories to the motion, the mechanical license. See Copyright Royalty Tribunal Judges presume that they each reviewed the The parties have proposed two Reform Act of 1993, Public Law 103–198, 107 Stat. settlement and do not object to its adoption, per the provisions, § 385.12(e) and § 385.22(d), 2304. signatories’ representation. relating to statements of account for the

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section 115 license. Both of these Subpart B—Interactive Streaming and j. In paragraph (2)(i) of ‘‘Service sections, which are virtually identical, Limited Downloads revenue’’, by removing ‘‘service’’ and appear to propose in their second adding ‘‘service provider’’ in its place sentences requirements beyond those 4. Section 385.10 is amended as each place it appears; and set forth by the Register of Copyrights in follows: k. In paragraph (5) of ‘‘Service a. By revising paragraph (b); and 37 CFR 201.19. The authority to revenue’’, by removing ‘‘In connection b. By adding a new paragraph (c). with such a bundle, if a record company prescribe regulations relating to The revisions and additions read as providing sound recording rights to the statements of account is ‘‘the exclusive follows: domain of the Register,’’ see Division of service’’ and by removing paragraphs Authority Between the Copyright § 385.10 General. (5)(i) and (ii). Royalty Judges and the Register of * * * * * The additions read as follows: Copyrights under the Section 115 (b) Legal compliance. A licensee that, § 385.11 Definitions. Statutory License, Final order, Docket pursuant to 17 U.S.C. 115, makes or Affiliate means an entity controlling, No. RF 2008–1, 73 FR 48396, 48398 authorizes interactive streams or limited controlled by, or under common control (August 19, 2008), and the Judges downloads of musical works through with another entity, except that an ‘‘cannot alter requirements issued by the subscription or nonsubscription digital affiliate of a record company shall not Register regarding statements of music services shall comply with the include a copyright owner of musical account.’’ Review of Copyright Royalty requirements of that section, the rates works to the extent it is engaging in Judges Determination, Notice; and terms of this subpart, and any other business as to musical works. correction, Docket No. 2009–1, 74 FR applicable regulations, with respect to Applicable consideration means 5 4537, 4543 (January 26, 2009). such musical works and uses licensed anything of value given for the Consequently, we particularly invite pursuant to 17 U.S.C. 115. identified rights to undertake the comments of the parties, and the (c) Interpretation. This subpart is licensed activity, including, without Register of Copyrights, regarding these intended only to set rates and terms for limitation, ownership equity, monetary provisions. situations in which the exclusive rights advances, barter or any other monetary As noted above, the public may of a copyright owner are implicated and and/or nonmonetary consideration, comment and object to any or all of the a compulsory license pursuant to 17 whether such consideration is conveyed proposed regulations contained in this U.S.C. 115 is obtained. Neither this via a single agreement, multiple notice. Such comments and objections subpart nor the act of obtaining a license agreements and/or agreements that do must be submitted no later than June 18, under 17 U.S.C. 115 is intended to not themselves authorize the licensed 2012. express or imply any conclusion as to activity but nevertheless provide the circumstances in which any of the List of Subjects in 37 CFR Part 385 consideration for the identified rights to exclusive rights of a copyright owner are undertake the licensed activity, and Copyright, Phonorecords, Recordings. implicated or a license, including a including any such value given to an compulsory license pursuant to 17 Proposed Regulations affiliate of a record company for such U.S.C. 115, must be obtained. rights to undertake the licensed activity. For the reasons set forth in the 5. Section 385.11 is amended as For the avoidance of doubt, value given preamble, the Copyright Royalty Judges follows: to a copyright owner of musical works propose to amend Part 385 of Chapter III a. By adding in alphabetical order that is controlling, controlled by, or of title 37 of the Code of Federal definitions for ‘‘Affiliate’’, ‘‘Applicable under common control with a record Regulations to read as follows: consideration’’, and ‘‘GAAP’’; company for rights to undertake the b. In paragraph (2) of ‘‘Limited licensed activity shall not be considered download’’, by adding ‘‘provider’’ after PART 385—RATES AND TERMS FOR value given to the record company. ‘‘service’’; USE OF MUSICAL WORKS UNDER Notwithstanding the foregoing, COMPULSORY LICENSE FOR MAKING c. In paragraph for definition of ‘‘Offering’’, by removing ‘‘service’s’’ and applicable consideration shall not AND DISTRIBUTING OF PHYSICAL include in-kind promotional AND DIGITAL PHONORECORDS adding ‘‘service provider’s’’ in its place, and by adding ‘‘provider’’ after consideration given to a record 1. The authority citation for part 385 ‘‘service’’; company (or affiliate thereof) that is continues to read as follows: d. By removing paragraph for used to promote the sale or paid use of definition of ‘‘Publication date’’; sound recordings embodying musical Authority: 17 U.S.C. 115, 801(b)(1), works or the paid use of music services 804(b)(4). e. In paragraph for definition of ‘‘Relevant page’’, by removing ‘‘users for through which sound recordings § 385.4 [Amended] limited downloads or interactive embodying musical works are available where such in-kind promotional 2. Section 385.4 is amended by streams’’ and adding ‘‘users for licensed consideration is given in connection removing ‘‘(‘‘ and adding ‘‘§ ’’ in its activity’’ in its place; with a use that qualifies for licensing place. f. In paragraph for definition of ‘‘Service’’, by adding ‘‘provider’’ after under 17 U.S.C. 115. 3. Revise heading of Subpart B to read ‘‘Service’’ in paragraph heading; GAAP means U.S. Generally Accepted as follows: g. In paragraph (1) of ‘‘Service Accounting Principles, except that if the revenue’’, by removing ‘‘U.S. Generally U.S. Securities and Exchange 5 In the prior section 115 proceeding, the Register Accepted Accounting Principles’’ and Commission permits or requires entities found the Judges’ adoption of language that excluded inclusion of certain activities from the adding ‘‘GAAP’’ in its place; with securities that are publicly traded statements of account to be erroneous. See 74 FR h. In paragraphs (1)(i)–(ii) of ‘‘Service in the U.S. to employ International at 4543. Consequently, the Judges exercised their revenue’’, by adding ‘‘provider’’ after Financial Reporting Standards, as continuing jurisdiction and deleted the offending ‘‘service’’; issued by the International Accounting language. See Mechanical and Digital Phonorecord Delivery Rate Determination Proceeding, Final rule, i. In paragraph (1)(iii) of ‘‘Service Standards Board, or as accepted by the Docket No. 2006–3 CRB DPRA, 74 FR 6832 revenue’’, by adding ‘‘provider’’ after Securities and Exchange Commission if (February 11, 2009). ‘‘by the service’’; different from that issued by the

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International Accounting Standards the copyright owner, authorized 115 and the record company has granted Board, in lieu of Generally Accepted representative or agent for purposes of the rights to make interactive streams or Accounting Principles, then an entity reviewing the amounts paid by the limited downloads of a sound recording may employ International Financial licensee and verifying the accuracy of through the third-party service together Reporting Standards as ‘‘GAAP’’ for any such payments, and only those with the right to reproduce and purposes of this subpart. employees of the copyright owner, distribute the musical work embodied * * * * * authorized representative or agent who therein, 17.36% of the total amount 6. Section 385.12 is amended as need to have access to such information expensed by the service provider or any follows: for such purposes will be given access of its affiliates in accordance with a. In paragraph (b), by removing to such information; provided that in no GAAP for such rights for the accounting ‘‘offering.’’ and adding ‘‘offering taking event shall access be granted to any period, which amount shall equal the into consideration service revenue and individual who, on behalf of a record applicable consideration for such rights expenses associated with such offering.’’ company, is directly involved in at the time such applicable in its place; negotiating or approving royalty rates in consideration is properly recognized as b. In paragraph (b)(1), by removing transactions authorizing third party an expense under GAAP. ‘‘Service.’’ and adding ‘‘Offering.’’ in its services to undertake licensed activity (2) In cases in which the record place and by adding ‘‘provider’’ after with respect to sound recordings. A company is not the licensee under 17 ‘‘service’’; licensee’s statements of account, U.S.C. 115 and the record company has c. In paragraph (b)(1)(i), by removing including any and all information granted the rights to make interactive ‘‘revenue as’’ and adding ‘‘revenue provided by a licensee with respect to streams or limited downloads of a associated with the relevant offering as’’ the computation of a subminimum, sound recording through the third-party in its place; shall not be used for any other purpose, service without the right to reproduce d. In paragraph (b)(2), by removing and shall not be disclosed to or used by and distribute the musical work ‘‘service, subtract’’ and adding ‘‘service or for any record company affiliate or embodied therein, 21% of the total provider, subtract’’ in its place, by any third party, including any third- amount expensed by the service removing ‘‘by the service’’, by removing party record company. provider or any of its affiliates in ‘‘While’’ and adding ‘‘Although’’ in its 7. Section 385.13 is amended as accordance with GAAP for such rights place, by removing ‘‘under its follows: for the accounting period, which agreements with performing rights a. In paragraphs (a)(1)–(a)(5), by amount shall equal the applicable societies as defined in 17 U.S.C. 101’’, removing ‘‘§ 385.12(b)(1)’’ and adding consideration for such rights at the time and by removing ‘‘In the latter case,’’ ‘‘§ 385.12(b)(1)(ii)’’ in its place each such applicable consideration is and adding ‘‘In the case where the place it appears, and by removing properly recognized as an expense service is also engaging in the public ‘‘§ 385.12(b)(3)’’ and adding under GAAP. performance of musical works that does ‘‘§ 385.12(b)(3)(ii)’’ in its place each (c) Computation of subminimum II. not constitute licensed activity,’’ in its place it appears; For purposes of paragraphs (a)(1) and (5) place; b. In paragraph (a)(4), by adding of this section, subminimum II for an e. In paragraph (b)(3), by adding ‘‘providing licensed activity that is’’ accounting period means the aggregate ‘‘provider’’ after ‘‘service’’; before ‘‘made available to end users’’ of the following with respect to all f. In paragraph (b)(4), by removing and by adding ‘‘(including products or sound recordings of musical works used ‘‘used by the service’’ and adding ‘‘used services subject to other subparts)’’ in the relevant offering of the service by the service provider’’ in its place before ‘‘as part of a single transaction’’; provider during the accounting period— (1) In cases in which the record each place it appears, by removing ‘‘on c. By revising paragraphs (b) and (c); or after October 1, 2010’’, by removing d. By redesignating paragraph (d) as company is the licensee under 17 U.S.C. ‘‘if the service is’’ and adding ‘‘if the paragraph (e); 115 and the record company has granted service provider is’’; e. By adding a new paragraph (d); and the rights to make interactive streams g. By revising paragraph (c); f. In newly redesignated paragraph (e), and limited downloads of a sound h. In paragraph (d), by removing ‘‘For by removing ‘‘the service shall for the recording through the third-party licensed activity on or after October 1, relevant offering calculate its’’ and service together with the right to 2010,’’; and adding ‘‘the’’ in its place, and by adding reproduce and distribute the musical i. By adding a new paragraph (f). ‘‘shall be calculated,’’ before ‘‘taking work embodied therein, 18% of the total The revisions and additions read as into account’’. amount expensed by the service follows: The revisions and additions read as provider or any of its affiliates in follows: accordance with GAAP for such rights § 385.12 Calculation of royalty payments for the accounting period, which in general. § 385.13 Minimum royalty rates and amount shall equal the applicable * * * * * subscriber-based royalty floors for specific consideration for such rights at the time (c) Percentage of service revenue. The types of services. such applicable consideration is percentage of service revenue applicable * * * * * properly recognized as an expense under paragraph (b) of this section is (b) Computation of subminimum I. under GAAP. 10.5%. For purposes of paragraphs (a)(2), (3), (2) In cases in which the record * * * * * and (4) of this section, subminimum I company is not the licensee under 17 (f) Confidentiality. A licensee’s for an accounting period means the U.S.C. 115 and the record company has statement of account, including any and aggregate of the following with respect granted the rights to make interactive all information provided by a licensee to all sound recordings of musical works streams or limited downloads of a with respect to the computation of a used in the relevant offering of the sound recording through the third-party subminimum, shall be maintained in service provider during the accounting service without the right to reproduce confidence by any copyright owner, period— and distribute the musical work authorized representative or agent that (1) In cases in which the record embodied therein, 22% of the total receives it, and shall solely be used by company is the licensee under 17 U.S.C. amount expensed by the service

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provider or any of its affiliates in its place, by removing ‘‘the service shall 385.25 Reproduction and distribution accordance with GAAP for such rights have’’ and adding ‘‘the service provider rights covered. for the accounting period, which shall have’’ in its place, and by 325.26 Effect of rates. amount shall equal the applicable removing ‘‘the service (but’’ and adding Subpart C—Limited Offerings, Mixed consideration for such rights at the time ‘‘the service provider (but’’ in its place; Service Bundles, Music Bundles, Paid such applicable consideration is d. By revising paragraph (b)(1); Locker Services and Purchased e. In paragraph (b)(4), by removing properly recognized as an expense Content Locker Services under GAAP. ‘‘the service, and not’’ and adding ‘‘the (d) Payments by third parties. If a service provider, and not’’ in its place; § 385.20 General. record company providing sound and (a) Scope. This subpart establishes recording rights to the service provider f. By revising paragraph (d). rates and terms of royalty payments for for a licensed activity— The revisions read as follows: certain reproductions or distributions of (1) Recognizes revenue (in accordance § 385.14 Promotional royalty rate. musical works through limited with GAAP, and including for the offerings, mixed service bundles, music avoidance of doubt all applicable * * * * * bundles, paid locker services and consideration with respect to such (b) * * * purchased content locker services (1) No applicable consideration for rights for the accounting period, provided in accordance with the making or authorizing the relevant regardless of the form or timing of provisions of 17 U.S.C. 115. For the interactive streams or limited payment) from a person or entity other avoidance of doubt, to the extent that than the service provider providing the downloads is received by the record product configurations for which rates licensed activity and its affiliates, and company, any of its affiliates, or any are specified in subpart A of this part (2) Such revenue is received, in the other person or entity acting on behalf are included within licensed subpart C context of the transactions involved, as of or in lieu of the record company, of this part activity, the rates specified applicable consideration for such rights, except for in-kind promotional in subpart A of this part shall not apply, (3) Then such revenue shall be added consideration given to a record except that in the case of a music to the amounts expensed by the service company (or affiliate thereof) that is bundle the compulsory licensee may provider solely for purposes of used to promote the sale or paid use of elect to pay royalties for the music paragraphs (b)(1), (b)(2), (c)(1), or (c)(2) sound recordings or the paid use of bundle pursuant to subpart C of this of this section, as applicable, if not music services through which sound part or for the components of the bundle already included in such expensed recordings are available; pursuant to subpart A of this part. amounts. Where the service provider is * * * * * (b) Legal compliance. A licensee that, the licensee, if the service provider (d) Interactive streaming of clips. In pursuant to 17 U.S.C. 115, makes or provides the record company all addition to those in paragraph (a) of this authorizes reproduction or distribution information necessary for the record section, the provisions of this paragraph of musical works in limited offerings, company to determine whether (d) apply to interactive streaming mixed service bundles, music bundles, additional royalties are payable by the conducted or authorized by record paid locker services or purchased service provider hereunder as a result of companies under the promotional content locker services shall comply revenue recognized from a person or royalty rate of segments of sound with the requirements of that sections, entity other than the service provider as recordings of musical works with a the rates and terms of this subpart, and described in the immediately preceding playing time that does not exceed 90 any other applicable regulations, with sentence, then the record company shall seconds. Such interactive streams may respect to such musical works and uses provide such further information as be made or authorized by a record licensed pursuant to 17 U.S.C. 115. necessary for the service provider to company under the promotional royalty (c) Interpretation. This subpart is calculate the additional royalties and rate without any of the temporal intended only to set rates and terms for indemnify the service provider for such limitations set forth in paragraphs (b) situations in which the exclusive rights additional royalties. The sole obligation and (c) of this section (but subject to the of a copyright owner are implicated and of the record company shall be to pay other conditions of paragraphs (b) and a compulsory license pursuant to 17 the licensee such additional royalties if (c) of this section, as applicable). For U.S.C. 115 is obtained. Neither this actually payable as royalties hereunder; clarity, this paragraph (d) is strictly subpart nor the act of obtaining a license provided, however, that this shall not limited to the uses described herein and under 17 U.S.C. 115 is intended to affect any otherwise existing right or shall not be construed as permitting the express or imply any conclusion as to remedy of the copyright owner nor creation or use of an excerpt of a the circumstances in which any of the diminish the licensee’s obligations to musical work in violation of 17 U.S.C. exclusive rights of a copyright owner are the copyright owner. 106(2) or 115(a)(2) or any other right of implicated or a license, including a a musical work owner. compulsory license pursuant to 17 * * * * * 9. Add Subpart C to read as follows: U.S.C. 115, must be obtained. 8. Section 385.14 is amended as follows: Subpart C—Limited Offerings, Mixed § 385.21 Definitions. a. In paragraphs (a)(1)(iii)(A)–(C), by Service Bundles, Music Bundles, Paid For purposes of this subpart, the removing ‘‘service’’ and adding ‘‘service Locker Services and Purchased Content Locker Services following definitions shall apply: provider’’ in its place each place it Affiliate shall have the meaning given appears; Sec. in § 385.11. b. In paragraph (a)(1)(iii)(A), by 385.20 General. Applicable consideration shall have removing ‘‘commencing on or after 385.21 Definitions. the meaning given in § 385.11, except 385.22 Calculation of royalty payments in October 1, 2010, except’’ and adding general. that for purposes of this subpart ‘‘other than’’ in its place; 385.23 Royalty rates and subscriber-based references in the definition of c. In paragraph (a)(3), by removing royalty floors for specific types of ‘‘Applicable consideration’’ in § 385.11 ‘‘the service shall provide’’ and adding services. to licensed activity shall mean licensed ‘‘the service provider shall provide’’ in 385.24 Free trial periods. subpart C of this part activity.

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Free trial royalty rate means the purchased by the end user or are configuration in the music bundle must statutory royalty rate of zero in the case otherwise in the possession of the end be the same as, or a subset of, the of certain free trial periods, as provided use prior to the end user’s first request musical works embodied in the in § 385.24. to access such sound recordings by configuration containing the most GAAP shall have the meaning given means of the service. The term service musical works. in § 385.11. locker does not extend to any part of a Paid locker service means a locker Interactive stream shall have the service otherwise meeting this service that is a subscription service. meaning given in § 385.11. definition as to which a license is not Permanent digital download shall Licensee shall have the meaning given obtained for the applicable have the meaning given in § 385.2. in § 385.11. reproductions and distributions of Purchased content locker service Licensed subpart C of this part musical works. means a locker service made available to activity means— Mixed service bundle means an end-user purchasers of permanent (1) In the case of a limited offering, offering of one or more of permanent digital downloads, ringtones or physical the applicable interactive streams or digital downloads, ringtones, locker phonorecords at no incremental charge limited downloads; services or limited offerings, together above the otherwise applicable purchase (2) In the case of a locker service, the with one or more of non-music services price of the permanent digital applicable interactive streams, (e.g., Internet access service, mobile downloads, ringtones or physical permanent digital downloads, restricted phone service) or non-music products phonorecords, with respect to the sound downloads or ringtones; (e.g., a device such as a phone) of more recordings embodied in permanent (3) In the case of a music bundle, the than token value, that is provided to digital downloads or ringtones or applicable reproduction or distribution users as part of one transaction without physical phonorecords purchased from of a physical phonorecord, permanent pricing for the music services or music a qualifying seller as described in digital download or ringtone; and products separate from the whole paragraph (1) of the definition of (4) In the case of a mixed service offering. ‘‘Purchased content locker service,’’ bundle, the applicable— Music bundle means an offering of whereby the locker service enables the (i) Permanent digital downloads; two or more of physical phonorecords, purchaser to engage in one or both of (ii) Ringtones; permanent digital downloads or the qualifying activities identified in (iii) To the extent a limited offering is ringtones provided to users as part of paragraph (2) of the definition of included in a mixed service bundle, one transaction (e.g., download plus ‘‘Purchased content locker service.’’ In interactive streams or limited ringtone, CD plus downloads). A music addition, in the case of a locker service downloads; or bundle must contain at least two made available to end-user purchasers (iv) To the extent a locker service is different product configurations and of physical phonorecords, the seller included in a mixed service bundle, cannot be combined with any other must permanently part with possession interactive streams, permanent digital offering containing licensed activity of the physical phonorecords. downloads, restricted downloads or under subpart B of this part or subpart (1) A qualifying seller for purposes of ringtones. C of this part. this definition of ‘‘purchased content Limited download shall have the (1) In the case of music bundles locker service’’ is the same entity meaning given in § 385.11. containing one or more physical operating such locker service, one of its Limited offering means a subscription phonorecords, the physical phonorecord affiliates or predecessors, or— service providing interactive streams or component of the music bundle must be (i) In the case of permanent digital limited downloads where— sold under a single catalog number, and downloads or ringtones, a seller having (1) An end user is not provided the the musical works embodied in the another legitimate connection to the opportunity to listen to a particular digital phonorecord delivery locker service provider set forth in one sound recording chosen by the end user configurations in the music bundle must or more written agreements (including at a time chosen by the end user (i.e., be the same as, or a subset of, the that the locker service and permanent the service does not provide interactive musical works embodied in the physical digital downloads or ringtones are streams of individual recordings that are phonorecords; provided that when the offered through the same third party); or on-demand, and any limited downloads music bundle contains a set of digital (ii) In the case of physical are rendered only as part of programs phonorecord deliveries sold by the same phonorecords, a seller having an rather than as individual recordings that record company under substantially the agreement with— are on-demand); or same title as the physical phonorecord (A) The locker service provider (2) The particular sound recordings (e.g., a corresponding digital album), up whereby such parties establish an available to the end user over a period to 5 sound recordings of musical works integrated offer that creates a consumer of time are substantially limited relative that are included in the stand-alone experience commensurate with having to services in the marketplace providing version of such set of digital the same service both sell the physical access to a comprehensive catalog of phonorecord deliveries but are not phonorecord and offer the locker recordings (e.g., a service limited to a included on the physical phonorecord service; or particular genre, or permitting may be included among the digital (B) A service provider that also has an interactive streaming only from a phonorecord deliveries in the music agreement with the entity offering the monthly playlist consisting of a limited bundle. In addition, the seller must locker service, where pursuant to those set of recordings). permanently part with possession of the agreements the service provider has Locker service means a service physical phonorecord or phonorecords established an integrated offer that providing access to sound recordings of sold as part of the music bundle. creates a consumer experience musical works in the form of interactive (2) In the case of music bundles commensurate with having the same streams, permanent digital downloads, composed solely of digital phonorecords service both sell the physical restricted downloads or ringtones, deliveries, the number of digital phonorecord and offer the locker where the service has reasonably phonorecord deliveries in either service. determined that phonorecords of the configuration cannot exceed 20, and the (2) Qualifying activity for purposes of applicable sound recordings have been musical works embodied in each this definition of ‘‘purchased content

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locker service’’ is enabling the (i) All revenue recognized by the be treated as provided in paragraphs (2) purchaser to— service provider from end users from and (4) of the definition of ‘‘Subpart C (i) Receive one or more additional the provision of licensed subpart C of of this part service revenue.’’ By way of phonorecords of such purchased sound this part activity; example, the following kinds of revenue recordings of musical works in the form (ii) All revenue recognized by the shall be excluded: of permanent digital downloads or service provider by way of sponsorship (i) Revenue derived from non-music ringtones at the time of purchase, or and commissions as a result of the voice, content and text services; (ii) Subsequently access such inclusion of third-party ‘‘in-stream’’ or (ii) Revenue derived from other non- purchased sound recordings of musical ‘‘in-download’’ advertising as part of music products and services (including works in the form of interactive streams, licensed subpart C of this part activity search services, sponsored searches and additional permanent digital (i.e., advertising placed immediately at click-through commissions); downloads, restricted downloads or the start, end or during the actual (iii) Revenue generated from the sale ringtones. delivery, by way of transmissions of a of actual locker service storage space to Record company shall have the musical work that constitute licensed the extent that such storage space is sold meaning given in § 385.11. subpart C of this part activity); and at a separate retail price; Restricted download means a digital (iii) All revenue recognized by the (iv) In the case of a locker service, phonorecord delivery distributed in the service provider, including by way of revenue derived from the sale of form of a download that may not be sponsorship and commissions, as a permanent digital downloads or retained and played on a permanent result of the placement of third-party ringtones; and basis. The term restricted download advertising on a subpart C of this part (v) Revenue derived from other music includes a limited download. relevant page of the service or on any or music-related products and services Ringtone shall have the meaning page that directly follows such subpart that are not or do not include licensed given in § 385.2. C of this part relevant page leading up subpart C of this part activity. Service provider shall have the to and including the transmission of a (4) For purposes of paragraph (1) of meaning given in § 385.11, except that musical work that constitutes licensed the definition of ‘‘Subpart C of this part for purposes of this subpart references subpart C of this part activity; provided service revenue,’’ advertising or in the definition of ‘‘Service provider’’ that, in the case where more than one sponsorship revenue shall be reduced in § 385.11 to licensed activity and service is actually available to end users by the actual cost of obtaining such service revenue shall mean licensed from a subpart C of this part relevant revenue, not to exceed 15%. subpart C of this part activity and page, any advertising revenue shall be (5) In the case of a mixed service subpart C of this part service revenue, allocated between such services on the bundle, the revenue deemed to be respectively. basis of the relative amounts of the page recognized from end users for the Subpart C of this part offering means they occupy. service for the purpose of the definition a service provider’s offering of licensed (2) In each of the cases identified in in paragraph (1) of the definition of subpart C of this part activity that is paragraph (1) of the definition of ‘‘Subpart C of this part service revenue’’ subject to a particular rate set forth in ‘‘Subpart C of this part service revenue,’’ shall be the greater of— § 385.23(a) (e.g., a particular such revenue shall, for the avoidance of (i) The revenue recognized from end subscription plan available through the doubt, users for the mixed service bundle less service provider). (i) Include any such revenue the standalone published price for end Subpart C of this part relevant page recognized by the service provider, or if users for each of the non-music product means a page (including a Web page, not recognized by the service provider, or non-music service components of the screen or display) from which licensed by any associate, affiliate, agent or bundle; provided that, if there is no subpart C of this part activity offered by representative of such service provider such standalone published price for a a service provider is directly available to in lieu of its being recognized by the non-music component of the bundle, end users, but only where the offering service provider; then the average standalone published of licensed subpart C of this part activity (ii) Include the value of any barter or price for end users for the most closely and content that directly relates to the other nonmonetary consideration; comparable non-music product or non- offering of licensed subpart C of this (iii) Not be reduced by credit card music service in the U.S. shall be used part activity (e.g., an image of the artist commissions or similar payment or, if more than one such comparable or artwork closely associated with such process charges; and exists, the average of such standalone offering, artist or album information, (iv) Except as expressly set forth in prices for such comparables shall be reviews of such offering, credits and this subpart, not be subject to any other used; and music player controls) comprises 75% deduction or set-off other than refunds (ii) Either— or more of the space on that page, to end users for licensed subpart C of (A) In the case of a mixed service excluding any space occupied by this part activity that they were unable bundle that either has 750,000 advertising. A licensed subpart C of this to use due to technical faults in the subscribers or other registered users, or part activity is directly available to end licensed subpart C of this part activity is reasonably expected to have 750,000 users from a page if sound recordings of or other bona fide refunds or credits subscribers or other registered users musical works can be accessed by end issued to end users in the ordinary within 1 year after commencement of users for licensed subpart C of this part course of business. the mixed service bundle, 40% of the activity from such page (in most cases (3) In each of the cases identified in standalone published price of the this will be the page where the paragraph (1) of the definition of licensed music component of the transmission takes place). ‘‘Subpart C of this part service revenue,’’ bundle (i.e., the permanent digital Subpart C of this part service revenue. such revenue shall, for the avoidance of downloads, ringtones, locker service or (1) Subject to paragraphs (2) through (6) doubt, exclude revenue derived solely limited offering); provided that, if there of the definition of ‘‘Subpart C of this in connection with services and is no such standalone published price part service revenue,’’ and subject to activities other than licensed subpart C for the licensed music component of the GAAP, subpart C of this part service of this part activity, provided that bundle, then the average standalone revenue shall mean the following: advertising or sponsorship revenue shall published price for end users for the

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most closely comparable licensed music calculated as provided in this section, than the total of such public component in the U.S. shall be used or, subject to the royalty rates and performance payments if the service is if more than one such comparable subscriber-based royalty floors for also engaging in public performance of exists, the average of such standalone specific types of services provided in musical works that does not constitute prices for such comparables shall be § 385.23, except as provided for certain licensed subpart C of this part activity, used; and further provided that in any free trial periods in § 385.24. or previewing of such licensed subpart case in which royalties were paid based (b) Rate calculation methodology. C of this part activity. In the case where on this paragraph due to a reasonable Royalty payments for licensed subpart C the service is also engaging in the public expectation of reaching 750,000 of this part activity shall be calculated performance of musical works that does subscribers or other registered users as provided in paragraph (b) of this not constitute licensed subpart C of this within 1 year after commencement of section. If a service provides different part activity, the amount to be the mixed service bundle and that does subpart C of this part offerings, royalties subtracted for public performance not actually happen, applicable must be separately calculated with payments shall be the amount of such payments shall, in the accounting respect to each such subpart C of this payments allocable to licensed subpart period next following the end of such 1- part offering taking into consideration C of this part activity uses (other than year period, retroactively be adjusted as service revenue and expenses associated free trial royalty rate uses), and if paragraph (5)(ii)(B) of the definition of with such offering. Uses subject to the previewing of such uses, in connection ‘‘Subpart C of this part service revenue’’ free trial royalty rate shall be excluded with the relevant subpart C of this part applied; or from the calculation of royalties due, as offering, as determined in relation to all (B) Otherwise, 50% of the standalone further described in this section and the uses of musical works for which the published price of the licensed music following § 385.23. public performance payments are made component of the bundle (i.e., the (1) Step 1: Calculate the All-In for the accounting period. Such permanent digital downloads, ringtones, Royalty for the Subpart C of this Part allocation shall be made on the basis of locker service or limited offering); Offering. For each accounting period, plays of musical works or, where per- provided that, if there is no such the all-in royalty for each subpart C of play information is unavailable due to standalone published price for the this part offering of the service provider bona fide technical limitations as licensed music component of the is the greater of: described in step 3 in paragraph (b)(3) bundle, then the average standalone (i) The applicable percentage of of this section, using the same published price for end users for the subpart C of this part service revenue alternative methodology as provided in most closely comparable licensed music associated with the relevant offering as step 3 in paragraph (b)(3) of this section. component in the U.S. shall be used or, set forth in § 385.23(a) (excluding any (3) Step 3: Calculate the Per-Work if more than one such comparable subpart C of this part service revenue Royalty Allocation for Each Relevant exists, the average of such standalone derived solely from licensed subpart C Work. This is the amount payable for of this part activity uses subject to the prices for such comparables shall be the reproduction and distribution of free trial royalty rate), and used. each musical work used by the service (ii) The minimum specified in (6) In the case of a music bundle provider by virtue of its licensed § 385.23(a) for the subpart C of this part containing a physical phonorecord, subpart C of this part activity through a offering involved. where the music bundle is distributed particular subpart C of this part offering (2) Step 2: Subtract applicable during the accounting period. To by a record company for resale and the performance royalties to determine the record company is the compulsory determine this amount, the result payable royalty pool, which is the determined in step 2 in paragraph (b)(2) licensee— amount payable for the reproduction (i) Service revenue shall be 150% of of this section must be allocated to each and distribution of all musical works the record company’s wholesale musical work used through the subpart used by the service provider by virtue revenue from the music bundle; and C of this part offering. The allocation of its licensed subpart C of this part (ii) The times at which distribution shall be accomplished as follows: activity for a particular subpart C of this and revenue recognition are deemed to (i) In the case of limited offerings (but part offering during the accounting occur shall be in accordance with not limited offerings that are part of period. From the amount determined in § 201.19 of this title. mixed service bundles), by dividing the Subscription service means a digital step 1 in paragraph (b)(1) of this section, payable royalty pool determined in step music service for which end users are for each subpart C of this part offering 2 in paragraph (b)(2) of this section for required to pay a fee to access the of the service provider, subtract the total such offering by the total number of service for defined subscription periods amount of royalties for public plays of all musical works through such of 3 years or less (in contrast to, for performance of musical works that has offering during the accounting period example, a service where the basic been or will be expensed pursuant to (other than free trial royalty rate plays) charge to users is a payment per public performance licenses in to yield a per-play allocation, and download or per play), whether such connection with uses of musical works multiplying that result by the number of payment is made for access to the through such subpart C of this part plays of each musical work (other than service on a standalone basis or as part offering during the accounting period free trial royalty rate plays) through the of a bundle with one or more other that constitute licensed subpart C of this offering during the accounting period. products or services, and including any part activity (other than licensed For purposes of determining the per- use of such a service on a trial basis subpart C of this part activity subject to work royalty allocation in all without charge as described in § 385.24. the free trial royalty rate), or in calculations under this step 3 only (i.e., connection with previewing of such after the payable royalty pool has been § 385.22 Calculation of royalty payments subpart C of this part offering during the determined), for sound recordings of in general. accounting period. Although this musical works with a playing time of (a) Applicable royalty. Licensees that amount may be the total of the over 5 minutes, each play shall be make or authorize licensed subpart C of payments with respect to the service for counted as provided in paragraph (c) of this part activity pursuant to 17 U.S.C. that subpart C of this part offering for this section. Notwithstanding the 115 shall pay royalties therefor that are the accounting period, it will be less foregoing, if the service provider is not

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capable of tracking play information due determined in paragraph (b)(3)(ii)(C) of sound recordings of musical works to bona fide limitations of the available this section. included in products of that technology for services of that nature or (E) Notwithstanding the foregoing, if a configuration in the music bundle. of devices usable with the service, the service provider offers both a paid (c) Overtime adjustment. For purposes per-work royalty allocation may instead locker service and a purchased content of the calculations in step 3 of be accomplished in a manner consistent locker service, and with respect to the paragraph (b)(3)(i) of this section only, with the methodology used by the purchased content locker service there for sound recordings of musical works service provider for making royalty is no subpart C of this part service with a playing time of over 5 minutes, payment allocations for the use of revenue and the applicable adjust the number of plays as follows: individual sound recordings. subminimum is zero dollars, then the (1) 5:01 to 6:00 minutes—Each play = (ii) In the case of mixed service service provider shall be permitted to 1.2 plays bundles and locker services, by— include within the calculation of (2) 6:01 to 7:00 minutes—Each play = (A) Determining a constructive constructive plays under paragraphs 1.4 plays number of plays of all licensed musical (b)(3)(ii)(A) and (b)(3)(ii)(C) of this (3) 7:01 to 8:00 minutes—Each play = works that is the sum of the total section for the paid locker service, the 1.6 plays number of interactive streams of all licensed subpart C of this part activity (4) 8:01 to 9:00 minutes—Each play = licensed musical works made through made through the purchased content 1.8 plays such offering during the accounting locker service (i.e., the total number of (5) 9:01 to 10:00 minutes—Each play = period (other than free trial royalty rate interactive streams of all licensed 2.0 plays interactive streams), plus the total musical works made through the (6) For playing times of greater than number of plays of restricted downloads purchased content locker service during 10 minutes, continue to add .2 plays for of all licensed musical works made the accounting period (other than free each additional minute or fraction through such offering during the trial royalty rate interactive streams), thereof. accounting period as to which the plus the total number of plays of (d) Accounting. The calculations service provider tracks plays (other than restricted downloads of all licensed required by paragraph (b) of this section free trial royalty rate restricted musical works made through the shall be made in good faith and on the downloads), plus 5 times the total purchased content locker service during number of downloads of all licensed the accounting period as to which the basis of the best knowledge, information musical works made through such service provider tracks plays (other than and belief of the licensee at the time offering during the accounting period as free trial royalty rate restricted payment is due, and subject to the to which the service provider does not downloads), plus 5 times the total additional accounting and certification track plays (other than free trial royalty number of downloads of all licensed requirements of 17 U.S.C. 115(c)(5) and rate downloads); musical works made through the § 201.19 of this title. Without limitation, (B) Determining a constructive per- purchased content locker service during a licensee’s statements of account shall play allocation that is the payable the accounting period as to which the set forth each step of its calculations royalty pool determined in step 2 of service provider does not track plays with sufficient information to allow the paragraph (b)(2) of this section for such (other than free trial royalty rate copyright owner to assess the accuracy offering divided by the constructive downloads)); provided that the relevant and manner in which the licensee number of plays of all licensed musical licensed subpart C of this part activity determined the payable royalty pool and works determined in paragraph made through the purchased content per-work allocations (including (b)(3)(ii)(A) of this section; locker service is similarly included information sufficient to demonstrate (C) For each licensed musical work, within the play calculation for the paid whether and how a minimum royalty determining a constructive number of locker service for the corresponding payment pursuant to § 385.23 does or plays of that musical work that is the sound recording rights. does not apply) and, for each subpart C sum of the total number of interactive (iii) In the case of music bundles, by— of this part offering reported, also streams of such licensed musical work (A) Allocating the payable royalty indicate the type of licensed subpart C made through such offering during the pool determined in step 2 of paragraph of this part activity involved and the accounting period (other than free trial (b)(2) of this section to separate pools number of plays or downloads, as royalty rate interactive streams), plus for each type of product configuration applicable, of each musical work the total number of plays of restricted included in the music bundle (e.g., CD, (including an indication of any overtime downloads of such licensed musical permanent digital download, ringtone) adjustment applied, if applicable) that is work made through such offering during in accordance with the ratios that the the basis of the per-work royalty the accounting period as to which the standalone published prices of the allocation being paid. service provider tracks plays (other than products that are included in the music (e) Confidentiality. A licensee’s free trial royalty rate restricted bundle bear to each other; provided statements of account, including any downloads), plus 5 times the total that, if there is no such standalone and all information provided a licensee number of downloads of such licensed published price for such a product, then with respect to the computation of a musical work made through such the average standalone published price subminimum, shall be maintained in offering during the accounting period as for end users for the most closely confidence of any copyright owner, to which the service provider does not comparable product in the U.S. shall be authorized representative or agent that track plays (other than free trial royalty used or, if more than one such receives it, and shall solely be used by rate downloads); and comparable exists, the average of such the copyright owner, authorized (D) For each licensed musical work, standalone prices for such comparables representative or agent for purposes of determining the per-work royalty shall be used; and reviewing the amounts paid by the allocation by multiplying the (B) Allocating the product licensee and verifying the accuracy of constructive per-play allocation configuration pools determined in any such payments, and only those determined in paragraph (b)(3)(ii)(B) of paragraph (b)(3)(iii)(A) of this section to employees of the copyright owner, this section by the constructive number individual musical works by dividing authorized representative or agent who of plays of that musical work each such pool by the total number of need to have access to such information

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for such purposes will be given access (4) Paid locker service. In the case of consideration is properly recognized as to such information; provided that in no a paid locker service, the percentage of an expense under GAAP. event shall access be granted to any subpart C of this part service revenue (2) In cases in which the record individual who, on behalf of a record applicable in step 1 of § 385.22(b)(1)(i) company is not the licensee under 17 company, is directly involved in is 12%. The minimum for use in step 1 U.S.C. 115 and the record company has negotiating or approving royalty rates in of § 385.22(b)(1)(ii) is the greater of— granted the rights to engage in licensed transactions authorizing third party (i) The appropriate subminimum as subpart C of this part activity with services to undertake licensed activity described in paragraph (b) of this respect to a sound recording through the with respect to sound recordings. A section for the accounting period, where third-party service without the right to licensee’s statements of account, the all-in percentage applicable to reproduce and distribute the musical including any and all information § 385.23(b)(1) is 17.11%, and the sound work embodied therein, the appropriate provided by a licensee with respect to recording-only percentage applicable to sound recording-only percentage from the computation of a subminimum, § 385.23(b)(2) is 20.65%; and paragraph (a) of this section of the total shall not be used for any other purpose, (ii) The aggregate amount of 17 cents amount expensed by the service and shall not be disclosed to or used by per subscriber per month. provider or any of its affiliates in or for any record company affiliate or (5) Purchased content locker service. accordance with GAAP for such rights any third party, including any third- In the case of a purchased content for the accounting period, which party record company. locker service, the percentage of subpart amount shall equal the applicable C of this part service revenue applicable consideration for such rights at the time § 385.23 Royalty rates and subscriber- in step 1 of § 385.22(b)(1)(i) is 12%. For such applicable consideration is based royalty floors for specific types of the avoidance of doubt, paragraph (1)(i) properly recognized as an expense services. of the definition of ‘‘Subpart C of this under GAAP. (a) In general. The following royalty part service revenue’’ shall not apply. (3) In the case of a music bundle rates and subscriber-based royalty floors The minimum for use in step 1 in containing a physical phonorecord, shall apply to the following types of § 385.22(b)(1)(ii) is the appropriate where the music bundle is distributed licensed subpart C of this part activity: subminimum as described in paragraph by a record company for resale and the (1) Mixed service bundle. In the case (b) of this section for the accounting record company is the compulsory of a mixed service bundle, the period, where the all-in percentage licensee, the appropriate all-in percentage of subpart C of this part applicable to § 385.23(b)(1) is 18%, and percentage from paragraph (a) of this service revenue applicable in step 1 of the sound recording-only percentage section of the record company’s total § 385.22(b)(1)(i) is 11.35%. The applicable to § 385.23(b)(2) is 22%, wholesale revenue from the music minimum for use in step 1 of except that for purposes of paragraph (b) bundle in accordance with GAAP for § 385.22(b)(1)(ii) is the appropriate of this section the applicable the accounting period, which amount subminimum as described in paragraph consideration expensed by the service shall equal the applicable consideration (b) of this section for the accounting for the relevant rights shall consist only for such music bundle at the time such period, where the all-in percentage of applicable consideration expensed by applicable consideration is properly applicable to § 385.23(b)(1) is 17.36%, the service, if any, that is incremental to recognized as revenue under GAAP, and the sound recording-only the applicable consideration expensed subject to the provisions of § 201.19 of percentage applicable to § 385.23(b)(2) for the rights to make the relevant this title concerning the times at which is 21%. permanent digital downloads and distribution and revenue recognition are ringtones. (2) Music bundle. In the case of a deemed to occur. (b) Computation of subminima. For (4) If a record company providing music bundle, the percentage of subpart purposes of paragraph (a) of this section, sound recording rights to the service C of this part service revenue applicable the subminimum for an accounting provider for a licensed subpart C of this in step 1 of § 385.22(b)(1)(i) is 11.35%. period is the aggregate of the following part activity— The minimum for use in step 1 of with respect to all sound recordings of (i) Recognizes revenue (in accordance § 385.22(b)(1)(ii) is the appropriate musical works used in the relevant with GAAP, and including for the subminimum as described in paragraph subpart C of this part offering of the avoidance of doubt all applicable (b) of this section for the accounting service provider during the accounting consideration with respect to such period, where the all-in percentage period— rights for the accounting period, applicable to § 385.23(b)(1) and (3) is (1) Except as provided in paragraph regardless of the form or timing of 17.36%, and the sound recording-only (b)(3) of this section, in cases in which payment) from a person or entity other percentage applicable to § 385.23(b)(2) the record company is the licensee than the service provider providing the is 21%. under 17 U.S.C. 115 and the record licensed subpart C of this part activity (3) Limited offering. In the case of a company has granted the rights to and its affiliates, and limited offering, the percentage of engage in licensed subpart C of this part (ii) Such revenue is received, in the subpart C of this part service revenue activity with respect to a sound context of the transactions involved, as applicable in step 1 of § 385.22(b)(1)(i) recording through the third-party applicable consideration for such rights, is 10.5%. The minimum for use in step service together with the right to (iii) Then such revenue shall be added 1 of § 385.22(b)(1)(ii) is the greater of— reproduce and distribute the musical to the amounts expensed by the service (i) The appropriate subminimum as work embodied therein, the appropriate provider solely for purposes of described in paragraph (b) of this all-in percentage from paragraph (a) of paragraph (b)(1) or (2) of this section, as section for the accounting period, where this section of the total amount applicable, if not already included in the all-in percentage applicable to expensed by the service provider or any such expensed amounts. Where the § 385.23(b)(1) is 17.36%, and the sound of its affiliates in accordance with service provider is the licensee, if the recording-only percentage applicable to GAAP for such rights for the accounting service provider provides the record § 385.23(b)(2) is 21%; and period, which amount shall equal the company all information necessary for (ii) The aggregate amount of 18 cents applicable consideration for such rights the record company to determine per subscriber per month. at the time such applicable whether additional royalties are payable

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by the service provider hereunder as a behalf of or in lieu of the record shall be maintained for no less time result of revenue recognized from a company, except for in-kind than the record company maintains person or entity other than the service promotional consideration used to records of usage of royalty-bearing uses provider as described in the promote the sale or paid use of sound involving the same type of licensed immediately preceding sentence, then recordings or audiovisual works subpart C of this part activity in the the record company shall provide such embodying musical works or the paid ordinary course of business, but in no further information as necessary for the use of music services through which event for less than 5 years from the service provider to calculate the sound recordings or audiovisual works conclusion of the licensed subpart C of additional royalties and indemnify the embodying musical works are available; this part activity to which they pertain. service provider for such additional (3) The free trial period does not If the copyright owner of a musical work royalties. The sole obligation of the exceed 30 consecutive days per or its agent requests a copy of the record company shall be to pay the subscriber per two-year period; information to be maintained under this licensee such additional royalties if (4) In connection with authorizing the paragraph (b) with respect to a specific actually payable as royalties hereunder; transmissions, the record company has free trial period, the record company provided, however, that this shall not obtained from the service provider it shall provide complete and accurate affect any otherwise existing right or authorizes a written representation documentation within 10 business days, remedy of the copyright owner nor that— except for any information required diminish the licensee’s obligations to (i) The service provider agrees to under paragraph (a)(4)(i) of this section, the copyright owner. maintain for a period of no less than 5 which shall be provided within 20 (c) Computation of subscriber-based years from the end of each relevant business days, and provided that if the royalty rates. For purposes of accounting period complete and copyright owner or agent requests paragraphs (a)(3) and (4) of this section, accurate records of the relevant information concerning a large volume to determine the subscriber-based authorization, and identifying each of free trial periods or sound recordings, minimum applicable to any particular sound recording of a musical work the record company shall have a subpart C of this part offering, the total made available through the free trial reasonable time, in view of the amount number of subscriber-months for the period, the licensed subpart C of this of information requested, to respond to accounting period shall be calculated, part activity involved, and the number any request of such copyright owner or taking into account all end users who of plays or downloads, as applicable, of agent. If the record company does not were subscribers for complete calendar such recording; provide required information within the months, prorating in the case of end (ii) The service is in all material required time, and upon receipt of users who were subscribers for only part respects operating with appropriate written notice citing such failure does of a calendar month, and deducting on license authority with respect to the not provide such information within a a prorated basis for end users covered musical works it is using; and further 10 business days, the uses will (iii) The representation is signed by a by a free trial period subject to the free be considered not to be subject to the person authorized to make the trial royalty rate as described in free trial royalty rate and the record representation on behalf of the service § 385.24. The product of the total company (but not any third-party provider; number of subscriber-months for the service it has authorized) shall be liable accounting period and the specified (5) Upon receipt by the record company of written notice from the for any payment due for such uses; number of cents per subscriber shall be provided, however, that all rights and used as the subscriber-based component copyright owner of a musical work or agent of the copyright owner stating in remedies of the copyright owner with of the minimum for the accounting respect to unauthorized uses shall be period. good faith that a particular service is in a material manner operating without preserved. § 385.24 Free trial periods. appropriate license authority from such (c) Recordkeeping by services. If the (a) General provisions. This section copyright owner, the record company copyright owner of a musical work or its establishes a royalty rate of zero in the shall within 5 business days withdraw agent requests a copy of the information case of certain free trial periods for by written notice its authorization of to be maintained under paragraph mixed service bundles, paid locker such uses of such copyright owner’s (a)(4)(i) of this section by a service services and limited offerings under a musical works under the free trial authorized by a record company with license pursuant to 17 U.S.C. 115. royalty rate by that service; respect to a specific promotion, the Subject to the requirements of 17 U.S.C. (6) The free trial period is offered free service provider shall provide complete 115 and the additional provisions of of any charge to the end user; and and accurate documentation within 20 paragraphs (b) through (e) of this (7) End users are periodically offered business days, provided that if the section, the free trial royalty rate shall an opportunity to subscribe to the copyright owner or agent requests apply to a musical work when a record service during such free trial period. information concerning a large volume company transmits or authorizes the (b) Recordkeeping by record of free trial periods or sound recordings, transmission, as part of a mixed service companies. To rely upon the free trial the service provider shall have a bundle, paid locker service or limited royalty rate for a free trial period, a reasonable time, in view of the amount offering, of a sound recording that record company making or authorizing of information requested, to respond to embodies such musical work, only if— the free trial period shall keep complete any request of such copyright owner or (1) The primary purpose of the record and accurate contemporaneous written agent. If the service provider does not company in providing or authorizing records of the contractual terms that provide required information within the the free trial period is to promote the bear upon the free trial period; and required time, and upon receipt of applicable subpart C of this part further provided that, if the record written notice citing such failure does offering; company itself is conducting the free not provide such information within a (2) No applicable consideration for trial period, it shall also maintain any further 10 business days, the uses will making or authorizing the transmissions additional records described in be considered not to be subject to the is received by the record company, or paragraph (a)(4)(i) of this section. The free trial royalty rate and the service any other person or entity acting on records required by this paragraph (b) provider (but not the record company)

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will be liable for any payment due for ENVIRONMENTAL PROTECTION 3. On page 24004, Footnote 40 is such uses; provided, however, that all AGENCY amended to read as follows: ‘‘Ash Grove rights and remedies of the copyright Update March 2012 (Ash Grove’s letter owner with respect to unauthorized 40 CFR Part 52 indicates a mean of 14.4 lbs./ton clinker and a 99th percentile of 18.6 lb NO /ton uses shall be preserved. [EPA–R08–OAR–2011–0851, FRL–9673–6] X clinker. This is significantly greater than (d) Interpretation. The free trial Approval and Promulgation of the 2006 emissions shown in Table 10 royalty rate is exclusively for audio-only for the Midlothian kilns.).’’ licensed subpart C of this part activity Implementation Plans; State of Montana; State Implementation Plan 4. On pages 24013 and 24014, involving musical works subject to Footnote 75 is amended to read as licensing under 17 U.S.C. 115. The free and Regional Haze Federal Implementation Plan follows: ‘‘BART analysis by Holcim for trial royalty rate does not apply to any Trident Cement Plant, Three Forks, MT other use under 17 U.S.C. 115; nor does AGENCY: Environmental Protection (‘‘Holcim Initial Response’’) (July 6, it apply to public performances, Agency. 2007); Responses to EPA comments on audiovisual works, lyrics or other uses ACTION: Proposed rule; corrections. BART analysis for Trident Cement Plant outside the scope of 17 U.S.C. 115. (‘‘Holcim 2008 Responses’’) (Jan. 25, Without limitation, uses subject to SUMMARY: EPA is correcting a proposed 2008); BART analysis by Holcim for low licensing under 17 U.S.C. 115 that do rule that appeared in the Federal NOX burners for Trident Cement Plant not qualify for the free trial royalty rate Register on April 20, 2012. The (‘‘Holcim Additional Response, June (including without limitation licensed proposed rule includes the proposed 2009’’) (June 9, 2009); Response to EPA subpart C of this part activity beyond Federal Implementation Plan (FIP) to letter regarding Confidential Business the time limitations applicable to the address regional haze in the State of Information (CBI) claims on BART free trial royalty rate) require payment Montana and the proposed approval of analysis for Trident Cement Plant (‘‘Holcim Additional Response, August of applicable royalties. This section is revisions to the Montana SIP submitted 2009’’) (Aug. 12, 2009); Response to based on an understanding of industry by the State of Montana through the Montana Department of Environmental EPA request for NOX and SO2 emissions practices and market conditions at the Quality on February 17, 2012. We are data for 2008–2010 (‘‘Holcim 2011 time of its development, among other correcting some typographical errors Response’’) (June 30, 2011); Response to things. The terms of this section shall be and clarifying some information with EPA request for emissions and clinker subject to de novo review and this document. production for Holcim pursuant to CAA consideration (or elimination altogether) FOR FURTHER INFORMATION CONTACT: section 114(a) (‘‘Holcim 2012 in future proceedings before the Vanessa Hinkle, EPA, Region 8, (303) Response’’) (Mar. 2, 2012).’’ Copyright Royalty Judges. Nothing in 5. On page 24014, in the first column, 312–6561. this section shall be interpreted or the first sentence of the second construed in such a manner as to nullify SUPPLEMENTARY INFORMATION: paragraph is amended to read, ‘‘We or diminish any limitation, requirement Throughout this document, wherever identified that the following previously ‘‘we’’ or ‘‘our’’ is used it means the EPA. or obligation of 17 U.S.C. 115 or other described NOX control technologies are On April 20, 2012, EPA published the protection for musical works afforded available: LNB, MKF, FGR, SNCR, and proposed rule titled ‘‘Approval and by the Copyright Act, 17 U.S.C. 101 et SCR.’’ Promulgation of Implementation Plans; seq. 6. On page 24018, in Table 52, the State of Montana; State Implementation annual emissions reduction for fuel § 385.25 Reproduction and distribution Plan and Regional Haze Federal switching option 2 is amended to 31.1 rights covered. Implementation Plan’’ (77 FR 23988). tpy, the remaining annual emissions for See docket number EPA–R08–OAR– fuel switching option 2 is amended to A compulsory license under 17 U.S.C. 2011–0851. The following corrections 19.1 tpy, the annual emissions 115 extends to all reproduction and are made to the proposed rule: reduction for fuel switching option 1 is distribution rights that may be necessary 1. On page 23992, Footnote 7 is amended to 16.1 tpy, and the remaining for the provision of the licensed subpart amended to read as follows: ‘‘Guidance annual emissions for fuel switching C of this part activity, solely for the for Estimating Natural Visibility option 1 is amended to 34.1 tpy. purpose of providing such licensed Conditions Under the Regional Haze 7. On page 24020, in Table 60, the subpart C of this part activity (and no Rule, September 2003, EPA–454/B–03– emissions reductions from fuel other purpose). 005, available at http://www.epa.gov/ switching option 1 are amended to 16.1 ttncaaa1/t1/memoranda/rh_envcurhr_ tpy, the average cost effectiveness for § 385.26 Effect of rates. gd.pdf, (hereinafter referred to as ‘‘our fuel switching option 1 is amended to In any future proceedings under 17 2003 Natural Visibility Guidance’’); and 14,938 dollars per ton, the emissions U.S.C. 115(c)(3)(C) and (D), the royalty Guidance for Tracking Progress Under reduction from fuel switching option 2 rates payable for a compulsory license the Regional Haze Rule, (September is amended to 31.1 tpy, and the average shall be established de novo. 2003, EPA–454/B–03–004, available at cost effectiveness for fuel switching http://www.epa.gov/ttncaaa1/t1/ option 2 is amended to 21,211 dollars Dated: May 10, 2012. memoranda/rh_tpurhr_gd.pdf, per ton. Stanley C. Wisniewski, (hereinafter referred to as our ‘‘2003 8. On page 24021, in Table 63, the Copyright Royalty Judge. Tracking Progress Guidance’’).’’ average cost effectiveness for fuel [FR Doc. 2012–11751 Filed 5–16–12; 8:45 am] 2. On page 24002, Footnote 27 is switching option 2 is amended to 21,211 BILLING CODE 1410–72–P amended to read as follows: dollars per ton, and the average cost ‘‘ ‘‘Modeling Protocol: Montana Regional effectiveness for fuel switching option 1 Haze Federal Implementation Plan (FIP) is amended to 14,938 dollars per ton. Support’’, University of North Carolina, 9. On page 24023, Footnote 113 is Contract EP–D–07–102, November 21, amended to read as follows: ‘‘Baseline 2011.’’ emissions were determined by averaging

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the annual emissions from 2008 through identified that the following MMBtu), averaged over a rolling 30-day 2010 as reported to the CAMD database technologies to be available: extending period for SO2 and NOX:’’ available at http://camddataandmaps. the Claus reaction into a lower 26. On page 24098, section 52.1396 epa.gov/gdm/.’’ temperature liquid phase (the Sulfreen® (c)(2) is amended to read, ‘‘The owners/ 10. On page 24024, Footnote 123 is process) and tail gas scrubbing operators of cement kilns subject to this amended to read as follows: ‘‘EPA’s (Wellman-Lord, SCOT, and traditional section shall not emit or cause to be CCM Sixth Edition, January 2002, EPA/ FGD processes).’’ emitted PM, SO2 or NOX in excess of the 452/B–02–001, Section 1, Chapter 2, p. 20. On page 24074, in the third following limitations, in pounds per ton 2–21.’’ column, the first sentence of the sixth of clinker produced, averaged over a 11. On page 24025, Footnote 130 is paragraph is amended to read, ‘‘In the rolling 30-day period for SO2 and NOX:’’ amended to read as follows: ‘‘ICAC Sulfreen® process, the Claus reaction is 27. On page 24099, the following is February 2008, p. 8.’’ extended at low temperatures (260 to added to section 52.1396 (g), ‘‘(5) All ° 12. On page 24031, Footnote 150 is 300 F) to recover SO2 and H2S in the particulate matter stack test results.’’ amended to read as follows: ‘‘Baseline tail gas.’’ 28. On page 24099, section 52.1396 emissions were determined by averaging 21. On page 24075, in the third (h)(4) is amended to read, ‘‘(4) Owner/ the annual emissions from 2008 to 2010 column, the third paragraph is amended operator of each unit shall submit ® as reported to the CAMD database to read, ‘‘Both the SCOT and Sulfreen results of any particulate matter stack available at http://camddataandmaps. processes are feasible; however, in the tests conducted for demonstrating epa.gov/gdm/.’’ BART Guidelines, EPA states that it may compliance win the particulate matter 13. On page 24059, in the first be appropriate to eliminate from further BART limits in section (c) above, within column, the second paragraph is consideration technologies that provide 60 days after completion of the test.’’ amended to read, ‘‘We are eliminating similar control levels at higher cost. See 29. On page 24100, section 52.1396 the four refineries from further 70 FR 39165 (July 6, 2005). We think it (h)(6) is amended to read, ‘‘(6) Any consideration as a result of consent is appropriate to do the same for RP other records required by 40 CFR part ® decrees entered into by the owners. determinations. In this case, Sulfreen 60, Subpart F, or 40 CFR part 60, Under these consent decrees, emissions systems reportedly can achieve 98% to Appendix F, Procedure 1.’’ have been reduced sufficiently after the 99.5% sulfur recovery efficiency while 30. On page 24100, section 52.1396 2002 baseline so that the Q/D for each SCOT can reportedly achieve sulfur (i)(5) is added to read, ‘‘(5) Owner/ facility is below 10. Specifically, recovery as high as 99.8% to 99.9%. The operator of each unit shall submit semi- ® ExxonMobil’s emissions in 2009 of NOX cost is higher for the Sulfreen system annual reports of any excursions under and SO2 were 1,019 tpy, resulting in a when compared to the SCOT process. the approved CAM plan in accordance Q/D of 6. Cenex’s emissions in 2009 of Because the SCOT process is more with the schedule specified in the NOX and SO2 were 727 tpy, resulting in effective and costs less than the source’s title V permit.’’ a Q/D of 5. Conoco’s emissions in 2009 Sulfreen® system, the Sulfreen® system List of Subjects in 40 CFR Part 52 of NOX and SO2 were 1,087 tpy, was not considered further.’’ resulting in a Q/D of 8. Montana 22. On page 24076, in the second Environmental protection, Air Refining’s emissions in 2009 of NOX column, the first sentence of the third pollution control, Intergovernmental and SO2 were 122 tpy, resulting in a Q/ paragraph is amended to read, ‘‘Plum relations, Nitrogen dioxide, Particulate D of 2. The consent decrees are available Creek Manufacturing’s Columbia Falls matter, Reporting and recordkeeping in the docket.’’ Operation, in Columbia Falls, Montana requirements, Sulfur oxides, Volatile 14. On page 24063, in the first consists of a sawmill, a planer, and organic compounds. plywood and medium density column, the first sentence of the last Dated: May 8, 2012. paragraph is amended to read, ‘‘We are fiberboard (MDF) processes.’’ James B. Martin, relying on CELP’s estimates that SCR 23. On page 24097, the following would take approximately 26 months to information is added to the third Regional Administrator, Region 8. install and that SNCR would take 16 to column after the second paragraph, ‘‘K. [FR Doc. 2012–11967 Filed 5–16–12; 8:45 am] 24 weeks to install.239’’ Congressional Review Act BILLING CODE 6560–50–P 15. On page 24064, the title for the The Congressional Review Act, 5 last column of Table 162 is amended to U.S.C. 801 et seq., as added by the Small read, ‘‘Remaining emissions (tpy).’’ Business Regulatory Enforcement ENVIRONMENTAL PROTECTION 16. On page 24070, in the third Fairness Act of 1996, does not apply AGENCY column, the fourth sentence of the because this action is not a ‘‘major rule’’ second paragraph is amended to read, as defined by 5 U.S.C. 804(2).’’ 40 CFR Part 131 ‘‘This control option is functionally 24. On page 24097, in the third [EPA–HQ–OW–2009–0596; FRL–9670–7] equivalent to LSFO in terms of concept column, under Subpart BB—Montana, RIN 2040–AF41 and control efficiency.’’ the first line of number three is 17. On page 24071, in the first amended to read, ‘‘3. Add section Effective Date for the Water Quality column, the second full sentence of the 52.1395 to read as follows:’’ On page Standards for the State of Florida’s first paragraph is amended to read, ‘‘We 24097, in the third column, under Lakes and Flowing Waters used 85% control for this analysis.’’ Subpart BB—Montana, the first line of 18. On page 24071, in the first number three is amended to read, ‘‘3. AGENCY: Environmental Protection column, the sixth sentence of the Add section 52.1395 to read as follows:’’ Agency (EPA). second paragraph is amended to read, 25. On page 24098, section 52.1396 ACTION: Proposed delay of effective date. ‘‘We used 70% control for this analysis (c)(1) is amended to read, ‘‘The owners/ (about a 10% improvement over existing operators of EGUs subject to this section SUMMARY: The Environmental Protection controls).’’ shall not emit or cause to be emitted Agency (EPA) is proposing to extend the 19. On page 24074, in the third PM, SO2 or NOX in excess of the July 6, 2012, effective date of the ‘‘Water column, the first sentence of the fifth following limitations, in pounds per Quality Standards for the State of paragraph is amended to read, ‘‘We million British thermal units (lb/ Florida’s Lakes and Flowing Waters;

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Final Rule’’ (inland waters rule) for received will be included in the public http://www.epa.gov/epahome/ three months to October 6, 2012. EPA docket without change and may be dockets.htm. Although listed in the also is soliciting comment on extending made available online at http:// index, some information is not publicly the July 6, 2012, effective date by one www.regulations.gov, including any available, i.e., Confidential Business year to July 6, 2013. EPA’s inland waters personal information provided, unless Information (CBI) or other information rule as promulgated on December 6, the comment includes information with disclosure restricted by statute. 2010, included an effective date of claimed to be Confidential Business Certain other material, such as copyright March 6, 2012, for the entire regulation Information (CBI) or other information material, is not placed on the Internet except for the site-specific alternative whose disclosure is restricted by statute. and will be publicly available only in criteria provision, which took effect on Do not submit information that you hard copy form. Publicly available February 4, 2011. This proposal to consider to be CBI or otherwise docket materials are available either extend the July 6, 2012, effective date protected through http:// electronically in http:// for the inland waters rule does not affect www.regulations.gov or email. The www.regulations.gov or in hard copy at or change the February 4, 2011, effective http://www.regulations.gov Web site is the Docket Facility. The Office of Water date for the site-specific alternative an ‘‘anonymous access’’ system, which (OW) Docket Center is open from 8:30 criteria provision. On March 5, 2012, means EPA will not know your identity a.m. to 4:30 p.m., Monday through EPA extended the March 6, 2012, or contact information unless you Friday, excluding legal holidays. The effective date to July 6, 2012. In this provide it in the body of your comment. OW Docket Center telephone number is proposal, EPA is requesting comment on If you send an email comment directly 202–566–1744, and the Docket address extending the effective date for the to EPA without going through http:// is OW Docket, EPA West, Room 3334, ‘‘Water Quality Standards for the State www.regulations.gov, your email 1301 Constitution Ave. NW., of Florida’s Lakes and Flowing Waters; address will be automatically captured Washington, DC 20004. The Public Final Rule’’ from July 6, 2012 to October and included as part of the comment Reading Room is open from 8:30 a.m. to 6, 2012, or in the alternative from July that is placed in the public docket and 4:30 p.m., Monday through Friday, 6, 2012 to July 6, 2013. made available on the Internet. If you excluding legal holidays. The telephone DATES: Comments must be received on submit an electronic comment, EPA number for the Public Reading Room is or before June 18, 2012. recommends that you include your (202) 566–1744. ADDRESSES: Submit your comments, name and other contact information in FOR FURTHER INFORMATION CONTACT: the body of your comment and with any For identified by Docket ID No. EPA–HQ– information concerning this rulemaking, OW–2009–0596, by one of the following disk or CD–ROM you submit. If EPA cannot read your comment due to contact: Tracy Bone, U.S. EPA, Office of methods: Water, Mailcode 4305T, 1200 1. http://www.regulations.gov: Follow technical difficulties and cannot contact Pennsylvania Avenue NW., Washington, the on-line instructions for submitting you for clarification, EPA may not be DC 20460; telephone number 202–564– comments. able to consider your comment. 2. Email: [email protected]. Electronic files should avoid the use of 5257; email address: 3. Mail to: Water Docket, U.S. special characters, any form of [email protected]. Environmental Protection Agency, Mail encryption, and be free of any defects or SUPPLEMENTARY INFORMATION: code: 2822T, 1200 Pennsylvania Avenue viruses. For additional information NW., Washington, DC 20460, Attention: about EPA’s public docket, visit EPA I. General Information Docket ID No. EPA–HQ–OW–2009– Docket Center homepage at http:// Does this action apply to me? 0596. www.epa.gov/epahome/dockets.htm. 4. Hand Delivery: EPA Docket Center, An electronic version of the public Citizens concerned with water quality EPA West Room 3334, 1301 docket is available through EPA’s in Florida may be interested in this Constitution Avenue NW., Washington, electronic public docket and comment rulemaking. Entities discharging DC 20004, Attention Docket ID No. system, EPA Dockets. You may use EPA nitrogen or phosphorus to lakes and EPA–HQ–OW–2009–0596. Such Dockets at http://www.regulations.gov to flowing waters of Florida could be deliveries are only accepted during the view public comments, access the index indirectly affected by this rulemaking Docket’s normal hours of operation, and listing of the contents of the official because water quality standards (WQS) special arrangements should be made public docket, and access those are used in determining National for deliveries of boxed information. documents in the public docket that are Pollutant Discharge Elimination System Instructions: Direct your comments to available electronically. For additional (NPDES) permit limits. Categories and Docket ID No. EPA–HQ–OW–2009– information about EPA’s public docket, entities that may ultimately be affected 0596. EPA’s policy is that all comments visit EPA Docket Center homepage at include:

Category Examples of potentially affected entities

Industry ...... Industries discharging pollutants to lakes and flowing waters in the State of Florida. Municipalities ...... Publicly-owned treatment works discharging pollutants to lakes and flowing waters in the State of Florida. Stormwater Management Districts ...... Entities responsible for managing stormwater runoff in Florida.

This table is not intended to be affected by this action. Other types of quality standards program (i.e., through exhaustive, but rather provides a guide entities not listed in the table, such as Basin Management Action Plans for entities that may be directly or nonpoint source contributors to (BMAPs)). Any parties or entities indirectly affected by this action. This nitrogen/phosphorus pollution in conducting activities within watersheds table lists the types of entities which Florida’s waters may be affected through of the Florida waters covered by this EPA is now aware could potentially be implementation of Florida’s water rule, or who rely on, depend upon,

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influence, or contribute to the water discussion, and constructive planning, needs of the State, and support effective quality of the lakes and flowing waters (75 FR 75787, December 6, 2010). permit implementation, water body of Florida, may be affected by this rule. On December 22, 2011 (76 FR 79604), assessment and listing, and To determine whether your facility or EPA proposed to extend the March 6, development of TMDLs. The State activities may be affected by this action, 2012, effective date of the inland waters legislature has exempted the state NNC you should carefully examine the rule to June 4, 2012. EPA received six rules from legislative ratification and language in 40 CFR 131.43, which is the comments on its proposal. EPA directed the FDEP to submit the rules to final rule. If you have questions considered the public comments and the EPA for review. On February 20, regarding the applicability of this action the continued progress by the FDEP 2012, the FDEP sent the rules to EPA, to a particular entity, consult the person toward adoption of nutrient water which sets numeric nutrient criteria for listed in the preceding FOR FURTHER quality standards. EPA decided that a lakes, spring vents, streams, and certain INFORMATION CONTACT section. four month extension was warranted (77 estuaries in Florida. The FDEP also submitted material supporting those II. Background FR 13497), and thus extended the effective date of the inland waters rule criteria. EPA looks forward to receiving On December 6, 2010, EPA’s final to July 6, 2012. notification from the State of Florida inland waters rule, entitled ‘‘Water that the rules have been officially Quality Standards for the State of III. Proposed Extension of July 6, 2012 adopted as revisions to the State’s water Florida’s Lakes and Flowing Waters; Effective Date quality standards. Final Rule,’’ was published in the A. Current Inland Waters Rule Effective A petition was filed with the Florida Federal Register at 75 FR 75762, and Date and Rationale Department of Administrative Hearings codified at 40 CFR 131.43. The final challenging the validity of FDEP’s NNC inland waters rule established numeric The current effective date for the rules. A hearing was held the week of nutrient criteria in the form of total inland waters rule is July 6, 2012 February 27, 2012, and the nitrogen, total phosphorus, except, as noted earlier, for the site- Administrative Law Judge has not yet nitrate+nitrite, and chlorophyll a for the specific alternative criteria (SSAC) issued an order in the case. EPA different types of Florida’s inland provision, which became effective anticipates that the judge will issue a waters to assure attainment of the February 4, 2011. ruling in May. At the time of this State’s applicable water quality As discussed at length in the proposal, the outcome of the designated uses. More specifically, the December 22, 2011, proposal to extend administrative challenge is uncertain. numeric nutrient criteria translate the effective date of the inland waters The three month extension of the Florida’s narrative nutrient provision at rule (76 FR 79604), EPA at both the effective date of the inland waters rule Subsection 62–302–530(47)(b), Florida Headquarters and Regional levels has would allow time for the administrative Administrative Code (F.A.C.), into worked in collaboration with the State challenge to be resolved, and, if FDEP numeric values that apply to lakes and on outreach and education efforts. In the prevails, for FDEP to notify EPA that the springs throughout Florida and flowing same proposal, EPA also discussed that NNC rules have been officially adopted waters outside of the South Florida a further extension of the effective date as revisions to the State’s water quality Region. (EPA has distinguished the of the inland waters rule might be standards. If EPA were to approve South Florida Region as those areas needed to allow FDEP to submit the Florida’s rules, EPA would then south of Lake Okeechobee and the recently established State numeric consider proposing and finalizing an Caloosahatchee River watershed to the nutrient rules to EPA for review and additional extension to allow time for west of Lake Okeechobee and the St. action under section 303(c) of the CWA, EPA to withdraw any Federal numeric Lucie watershed to the east of Lake for EPA to complete its review of the nutrient criteria that correspond to Okeechobee.) The December 2010 final State rules, and for EPA to withdraw criteria that have been adopted by action seeks to improve water quality, any Federal numeric nutrient criteria Florida and approved by EPA. protect public health and aquatic life, corresponding to any State-adopted Final State numeric nutrient criteria and achieve the long-term recreational numeric nutrient criteria that have been could have significant implications for uses of Florida’s waters, which are a approved by EPA. many interested parties and members of critical part of the State’s economy. the public in the State. In the event that B. Rationale for Extending the July 6, As stated in 75 FR 75807 (December alternative Florida numeric nutrient 2012 Effective Date 6, 2010), the rule was scheduled to take criteria are established that assure effect on March 6, 2012, except for the EPA is proposing to extend the attainment of State designated uses site-specific alternative criteria (SSAC) effective date of the inland waters rule consistent with applicable CWA provision at 40 CFR 131.43(e), which (with the exception of the SSAC provisions, there could be uncertainty took effect on February 4, 2011. EPA provision, which is already in effect) for regarding implementation of EPA’s selected the March 6, 2012, effective three months to October 6, 2012 for the inland water numeric criteria. date for the criteria part of the rule to reasons discussed in this section. EPA Successful State action on this issue allow time for EPA to work with also requests comment on the could also affect the obligations and stakeholders and the Florida possibility of extending the July 6, 2012 expectations of a wide range of affected Department of Environmental Protection effective date for one year to July 6, stakeholders whose actions relate to the (FDEP) on important implementation 2013 or further. discharge or contribution of nitrogen issues; to help the public and all Since the promulgation of the and phosphorus pollution to State affected parties better understand the December 6, 2010 final rule for Florida’s waters. Extending the effective date of final criteria and the basis for those inland waters, EPA has continued to EPA’s inland waters rule from July 6, criteria; and for EPA to engage and work in close coordination with the 2012, to October 6, 2012, would avoid support, in full partnership with FDEP, State of Florida as the State develops its the confusion and inefficiency that the general public, stakeholders, local own rulemaking for numeric nutrient could occur should Federal criteria governments, and sectors of the criteria (NNC rules) that are consistent become effective while EPA reviews regulated community across the State in with requirements of the Clean Water State criteria for approval or disapproval a process of public outreach education, Act (CWA), address the water quality under CWA section 303(c). Further,

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extending the effective date to July 6, that the rule will not have significant respective jurisdictions. These Tribes 2013, would avoid the confusion and economic impact on a substantial are not subject to this proposed rule. inefficiency that could occur should number of small entities. Small entities This rule will not impact the Tribes Federal criteria take effect after State include small businesses, small because it merely extends the date of criteria have been approved and while organizations, and small governmental already promulgated requirements. EPA is in the process of withdrawing jurisdictions. For purposes of assessing Thus, Executive Order 13175 does not Federal criteria for corresponding the impacts of this action on small apply to this action. waters. entities, small entity is defined as: (1) A EPA specifically solicits additional Should EPA decide to extend the small business as defined by the Small comment on this proposed action from effective date of the inland waters rule, Business Administration’s (SBA) tribal officials. regulations at 13 CFR 121.201; (2) a the Agency will continue to work with G. Executive Order 13045: Protection of small governmental jurisdiction that is a Florida towards implementation of Children From Environmental Health government of a city, county, town, either Federal or State numeric nutrient Risks and Safety Risks criteria. As EPA stated in the preamble school district or special district with a to the final inland waters rule, the population of less than 50,000; and (3) This action is not subject to EO 13045 opportunity presented by numeric a small organization that is any not-for- (62 FR 19885, April 23, 1997) because nutrient criteria—for substantial profit enterprise which is independently it is not economically significant as nitrogen and phosphorus loadings owned and operated and is not defined in EO 12866 and because the reductions in the State—‘‘would be dominant in its field. Agency does not believe this action greatly facilitated and expedited by This proposed rule does not establish includes environmental health risks or strongly coordinated and well-informed any requirements that are applicable to safety risks that would present a risk to stakeholder engagement, planning, and small entities, but rather merely extends children. the date of already promulgated support before a rule of this significance H. Executive Order 13211: Actions requirements. Thus, I certify that this and broad scope begins to take effect Concerning Regulations That rule will not have a significant and be implemented through the State’s Significantly Affect Energy Supply, economic impact on a substantial regulatory programs’’ (75 FR 75787, Distribution, or Use December 6, 2010). number of small entities. This action is not subject to Executive EPA solicits comments regarding the D. Unfunded Mandates Reform Act proposed extension of three months to Order 13211 (66 FR 28355 (May 22, October 6, 2012, for the effective date of This action contains no Federal 2001)), because it is not likely to have the inland waters rule, as well as a mandates under the provisions of Title a significant adverse effect on the proposed extension of one year to July II of the Unfunded Mandates Reform supply, distribution, or use of energy. Act of 1995 (UMRA), 2 U.S.C. 1531– 6, 2013, for the same. I. National Technology Transfer and 1538 for State, local, or tribal Advancement Act IV. Statutory and Executive Order governments or the private sector. The Reviews action imposes no enforceable duty on Section 12(d) of the National any State, local or tribal governments or Technology Transfer and Advancement A. Executive Order 12866: Regulatory Act of 1995 (‘‘NTTAA’’), Public Law No. Planning and Review and Executive the private sector. This action merely extends the effective date of an already 104–113, 12(d) (15 U.S.C. 272 note) Order 13563: Improving Regulation and directs EPA to use voluntary consensus Regulatory Review promulgated regulation. Therefore, this action is not subject to the requirements standards in its regulatory activities This action is not a ‘‘significant of sections 202 or 205 of the UMRA. unless to do so would be inconsistent regulatory action’’ under the terms of with applicable law or otherwise Executive Order 12866 (58 FR 51735, E. Executive Order 13132 (Federalism) impractical. Voluntary consensus October 4, 1993), since it merely This action does not have Federalism standards are technical standards (e.g., extends the effective date of an already implications. It will not have substantial materials specifications, test methods, promulgated rule, and is, therefore, not direct effects on the States, on the sampling procedures, and business subject to review under Executive Order relationship between the national practices) that are developed or adopted 12866 and 13563 (76 FR 3821, January government and the States, or on the by voluntary consensus standards 21, 2011). distribution of power and bodies. NTTAA directs EPA to provide responsibilities among the various Congress, through OMB, explanations B. Paperwork Reduction Act levels of government, as specified in when the Agency decides not to use This action does not impose an Executive Order 13132. This action available and applicable voluntary information collection burden under the merely extends the effective date of an consensus standards. provisions of the Paperwork Reduction already promulgated regulation. This rulemaking does not involve Act, 44 U.S.C. 3501 et seq. Burden is technical standards. Therefore, EPA did F. Executive Order 13175 defined at 5 CFR 1320.3(b). This action not consider the use of any voluntary does not impose any information This action does not have tribal consensus standards. collection burden, reporting or record implications, as specified in Executive keeping requirements on anyone. Order 13175 (65 FR 67249, November 9, J. Executive Order 12898: Federal 2000). In the State of Florida, there are Actions To Address Environmental C. Regulatory Flexibility Act two Indian Tribes, the Seminole Tribe of Justice in Minority Populations and The Regulatory Flexibility Act (RFA) Florida and the Miccosukee Tribe of Low-Income Populations generally requires an agency to prepare Indians of Florida, with lakes and Executive Order (E.O.) 12898 (59 FR a regulatory flexibility analysis of any flowing waters. Both Tribes have been 7629 (Feb. 16, 1994)) establishes Federal rule subject to notice and comment approved for treatment in the same executive policy on environmental rulemaking requirements under the manner as a State (TAS) status for CWA justice. Its main provision directs Administrative Procedure Act or any sections 303 and 401 and have agencies, to the greatest extent other statute, unless the agency certifies federally-approved WQS in their practicable and permitted by law, to

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make environmental justice part of their which is located in the Rules section of ADDRESSES: You may submit comments, mission by identifying and addressing, this Federal Register. identified by MD Docket No. 12–116, by as appropriate, disproportionately high FOR FURTHER INFORMATION CONTACT: any of the following methods: and adverse human health or Alima Patterson, (214) 665–8533. • Federal eRulemaking Portal: http:// environmental effects of their programs, SUPPLEMENTARY INFORMATION: In the www.regulations.gov. Follow the policies, and activities on minority ‘‘Rules and Regulations’’ section of this instructions for submitting comments. populations and low-income Federal Register, the EPA is codifying • Federal Communications populations in the United States. This and incorporating by reference the Commission’s Web Site: http:// proposed action is not subject to E.O. State’s hazardous waste program as an www.fcc.gov/cgb/ecfs. Follow the 12898 because this action merely immediate final rule. The EPA did not instructions for submitting comments. extends the effective date for already make a proposal prior to the immediate • People with Disabilities: Contact the promulgated requirements. final rule because we believe these FCC to request reasonable List of Subjects in 40 CFR Part 131 actions are not controversial and do not accommodations (accessible format expect comments that oppose them. We documents, sign language interpreters, Environmental protection, Water have explained the reasons for this CART, etc.) by email: [email protected] quality standards, Nitrogen/phosphorus codification and incorporation by or phone: 202–418–0530 or TTY: 202– pollution, Nutrients, Florida. reference in the preamble to the 418–0432. Dated: May 5, 2012. immediate final rule. Unless we get • Email: [email protected]. Include MD Lisa P. Jackson, written comments which oppose this Docket No. 12–116 in the subject line of Administrator. incorporation by reference during the the message. • [FR Doc. 2012–11843 Filed 5–16–12; 8:45 am] comment period, the immediate final Mail: Commercial overnight mail rule will become effective on the date it (other than U.S. Postal Service Express BILLING CODE 6560–50–P establishes, and we will not take further Mail, and Priority Mail, must be sent to action on this proposal. If we get 9300 East Hampton Drive, Capitol ENVIRONMENTAL PROTECTION comments that oppose these actions, we Heights, MD 20743. U.S. Postal Service AGENCY will withdraw the immediate final rule first-class, Express, and Priority mail and it will not take effect. We will then should be addressed to 445 12th Street 40 CFR Part 272 respond to public comments in a later SW., Washington, DC 20554. final rule based on this proposal. You For detailed instructions for [EPA–R06–RCRA–2011–0484; FRL–9652–8] may not have another opportunity for submitting comments and additional comment. If you want to comment on information on the rulemaking process, Oklahoma: Incorporation by Reference this action, you must do so at this time. see the SUPPLEMENTARY INFORMATION of State Hazardous Waste Management Dated: March 16, 2012. section of this document. Program Al Armendariz, FOR FURTHER INFORMATION CONTACT: Roland Helvajian, Office of Managing AGENCY: Environmental Protection Regional Administrator, Region 6. Director at (202) 418–0444. Agency (EPA). [FR Doc. 2012–11876 Filed 5–16–12; 8:45 am] SUPPLEMENTARY INFORMATION: This is a ACTION: Proposed rule. BILLING CODE 6560–50–P summary of the Commission’s Notice of SUMMARY: The EPA proposes to codify Proposed Rulemaking (NPRM), FCC 12– in the regulations entitled ‘‘Approved FEDERAL COMMUNICATIONS 48, MD Docket No. 12–116, adopted on State Hazardous Waste Management COMMISSION May 3, 2012 and released May 4, 2012. Programs’’, Oklahoma’s authorized The full text of this document is hazardous waste program. The EPA will 47 CFR Part 1 available for inspection and copying incorporate by reference into the Code [MD Docket No. 12–116; FCC 12–48] during normal business hours in the of Federal Regulations (CFR) those FCC Reference Center, 445 12th Street provisions of the State regulations that Assessment and Collection of SW., Room CY–A257, Portals II, are authorized and that the EPA will Regulatory Fees for Fiscal Year 2012 Washington, DC 20554, and may also be enforce under the Solid Waste Disposal purchased from the Commission’s copy AGENCY: Federal Communications Act, commonly referred to as the contractor, BCPI, Inc., Portals II, 445 Commission. Resource Conversation and Recovery 12th Street SW., Room CY–B402, Act (RCRA). ACTION: Notice of proposed rulemaking. Washington, DC 20554. Customers may contact BCPI, Inc. via their Web site, DATES: Send written comments by June SUMMARY: The Commission will revise http://www.bcpi.com, or call 1–800– 18, 2012. its Schedule of Regulatory Fees in order 378–3160. This document is available in to recover an amount of $339,844,000 ADDRESSES: Send written comments to alternative formats (computer diskette, that Congress has required the Alima Patterson, Region 6 Regional large print, audio record, and braille). Commission to collect for fiscal year Authorization Coordinator, or Julia Persons with disabilities who need 2012. Section 9 of the Communications Banks Codification Coordinator, State/ documents in these formats may contact Act of 1934, as amended, provides for Tribal Oversight Section (6PD–O), the FCC by email: [email protected] or the annual assessment and collection of Multimedia Planning and Permitting phone: 202–418–0530 or TTY: 202–418– regulatory fees under sections 9(b)(2) Division, EPA Region 6, 1445 Ross 0432. Avenue, Dallas, Texas 75202–2733, and 9(b)(3), respectively, for annual Phone number: (214) 665–8533 or (214) ‘‘Mandatory Adjustments’’ and I. Procedural Matters ‘‘Permitted Amendments’’ to the 665–8178. You may also submit A. Ex Parte Rules-Permit-but Disclose Schedule of Regulatory Fees. comments electronically or through Proceeding hand delivery/courier; please follow the DATES: Submit comments on or before detailed instructions in the ADDRESSES May 31, 2012, and reply comments on 1. This is a ‘‘permit-but-disclose’’ section of the immediate final rule or before June 7, 2012. proceeding subject to the requirements

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of the Commission’s ex parte rules.1 Ex envelopes must be disposed of before II. Notice of Proposed Rulemaking parte presentations are permissible if entering the building. III. Introduction and Summary disclosed in accordance with • Commercial overnight mail (other Commission Rules, except during the than U.S. Postal Service Express Mail 7. In this Notice of Proposed Sunshine Agenda period when and Priority Mail) must be sent to 9300 Rulemaking (‘‘FY 2012 NPRM’’), we presentations, ex parte or otherwise, are East Hampton Drive, Capitol Heights, propose to collect $339,844,000 in generally prohibited. Persons making MD 20743. • regulatory fees for Fiscal Year (‘‘FY’’) oral ex parte presentations are reminded U.S. Postal Service first-class, 2012, pursuant to Section 9 of the that a memorandum summarizing a Express, and Priority mail must be Communications Act of 1934, as addressed to 445 12th Street SW., presentation must contain a summary of amended (the ‘‘Act’’). Section 9 Washington, DC 20554. the substance of the presentation and regulatory fees are mandated by not merely a listing of the subjects People with Disabilities: To request materials in accessible formats for Congress and are collected to recover discussed. More than a one- or two- the regulatory costs associated with the sentence description of the views and people with disabilities (braille, large print, electronic files, audio format), Commission’s enforcement, policy and arguments presented is generally rulemaking, user information, and 2 send an email to [email protected] or call required. Additional rules pertaining to international activities.3 The annual oral and written presentations are set the Consumer & Governmental Affairs Bureau at 202–418–0530 (voice), 202– amount of regulatory fees to be collected forth in Section 1.1206(b) of the is established each year in the Commission’s rules. 418–0432 (tty). 3. Availability of Documents. Commission’s Annual Appropriations B. Comment Filing Procedures Comments, reply comments, and ex Act, which funds the Commission.4 In this annual regulatory fee proceeding, 2. Comments and Replies. Pursuant to parte submissions will be available for public inspection during regular we retain many of the current methods, Sections 1.415 and 1.419 of the policies, and procedures for collecting Commission’s Rules, 47 CFR 1.415, business hours in the FCC Reference Section 9 regulatory fees adopted by the 1.419, interested parties may file Center, Federal Communications Commission in prior years. Consistent comments and reply comments on or Commission, 445 12th Street SW., CY– with our established practice, we intend before the dates indicated on the first A257, Washington, DC 20554. These to collect these regulatory fees during a page of this document. Comments may documents will also be available free September 2012 filing window in order be filed using: (1) the Commission’s online, via ECFS. Documents will be to collect the required amount by the Electronic Comment Filing System available electronically in ASCII, Word, end of our fiscal year. (ECFS), (2) the Federal Government’s and/or Adobe Acrobat. eRulemaking Portal, or (3) by filing 4. Accessibility Information. To 8. This FY 2012 NPRM is one of three paper copies. See Electronic Filing of request information in accessible Notices of Proposed Rulemakings on Documents in Rulemaking Proceedings, formats (computer diskettes, large print, regulatory fees that the Commission 63 FR 24121 (1998). audio recording, and Braille), send an expects to release on or before FY 2013. email to [email protected] or call the • Electronic Filers: Comments may be Because of the complexity of the Commission’s Consumer and filed electronically using the Internet by regulatory fee issues involved, the Governmental Affairs Bureau at (202) accessing the ECFS: http:// Commission will seek comment in 418–0530 (voice), (202) 418–0432 fjallfoss.fcc.gov/ecfs2/ or the Federal phases. (TTY). This document can also be eRulemaking Portal: http:// downloaded in Word and Portable 9. Since 1994 when the first www.regulations.gov. Document Format (‘‘PDF’’) at: http:// regulatory fees were collected, the • Paper Filers: Parties who choose to www.fcc.gov. communications industry has file by paper must file an original and undergone a rapid transformation. At four copies of each filing. If more than C. Paperwork Reduction Act the same time, the current method for one docket or rulemaking number 5. This NPRM does not contain assessing regulatory fees has changed appears in the caption of this proposed or modified information only slightly since its inception in proceeding, filers must submit two collection burden (s) subject to the 1994.5 In FY 2008, the Commission additional copies for each additional Paperwork Reduction Act of 1995 released a Further Notice of Proposed docket or rulemaking number. Filings (PRA), Public Law 104–13. In addition, Rulemaking which identified some of can be sent by hand or messenger therefore, it does not contain any new the issues raised by commenters with delivery, by commercial overnight or modified information collection regard to the need for fundamental courier, or by first-class or overnight burden for small business concerns with reform of our regulatory fee assessment U.S. Postal Service mail. All filings fewer than 25 employees, pursuant to methodology.6 In our FY 2011 must be addressed to the Commission’s the Small Business Paperwork Relief Regulatory Fees Report & Order, we Secretary, Office of the Secretary, Act of 2002, Public Law 107–198, see 44 stated that we would initiate a further Federal Communications Commission. U.S.C. 3506(c)(4). rulemaking to update the record on • All hand-delivered or messenger- regulatory fee rebalancing, as well as D. Initial Regulatory Flexibility Analysis delivered paper filings for the expand the inquiry to include new Commission’s Secretary must be 6. An initial regulatory flexibility issues and services not covered by the delivered to FCC Headquarters at 445 analysis (‘‘IRFA’’) is contained herein. 12th St. SW., Room TW–A325, Comments to the IRFA must be 3 47 U.S.C. 159(a). Washington, DC 20554. The filing hours identified as responses to the IRFA and 4 See the Consolidated Appropriations Act of are 8:00 a.m. to 7:00 p.m. All hand filed by the deadlines for comments on 2012, Public Law 112–74 (December 23, 2011). deliveries must be held together with the Notice of Proposed Rulemaking 5 47 U.S.C. 159(a) and 159(b). rubber bands or fasteners. Any (NPRM). The Commission will send a 6 Assessment and Collection of Regulatory Fees copy of this NPRM, including the IRFA, for Fiscal Year 2008, MD Docket No. 08–65, RM– 11312, Report and Order and Further Notice of 1 See 47 CFR 1.200 et seq. to the Chief Counsel for Advocacy of the Proposed Rulemaking, 73 FR 50201 (August 26, 2 See 47 CFR 1.1206(b)(2). Small Business Administration. 2008) at paras. 38–41.

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FY 2008 Further Notice of Proposed Report and Order finalizing our decision 2011, (4) require regulatees filing a Rulemaking.7 on all the issues raised in the Reform request for a refund, waiver, fee 10. In re-examining the regulatory fee Proceedings, including new cost reduction, or deferment of payment of program, as enacted by Congress and allocations and revised regulatory fees an application or regulatory fee to use codified in section 9 of the in sufficient time to allow for their an online filing system rather than Communications Act, 47 U.S.C. 159, the implementation in FY 2013. submitting their requests in hardcopy Commission will undertake two 11. Although the Commission will format, and (5) seek general comment on separate Notices of Proposed reexamine its regulatory fee program in improving our collection procedures Rulemakings (‘‘Reform Proceedings’’) two separate Notices of Proposed and processes. Rulemakings, the regular collections FY which will address the issues in two IV. Notice of Proposed Rulemaking phases. In Phase I, we will primarily 2012 NPRM and the subsequent FY 2012 Report & Order will be adopted in consider the allocation percentages of 12. The Section 9 regulatory fee core bureaus involved in regulatory fee sufficient time to collect regulatory fees in FY 2012. The proposed FY 2012 proceeding is an annual rulemaking activity and how we calculate these process for the Commission to collect percentages, and in Phase II, we will regulatory fee rates are listed in the table below entitled, ‘‘Table—FY 2012 the required fee amount each year. In address other outstanding substantive Schedule of Regulatory Fees.’’ In this FY 2012 NPRM, we propose to and procedural issues. Given the calculating these FY 2012 fee rates, the retain the section 9 regulatory fee breadth and complexity of the issues Commission proposes to: (1) incorporate methodology used in FY 2011 and in involved, the issuance of two separate the results of the 2010 Census data into prior fiscal years, with some Notices of Proposed Rulemakings will our broadcast population data, (2) assess adjustments to maintain the FY 2012 permit more orderly and consistent a regulatory fee for each facility ITSP fee rate at the same level as in FY analysis of the issues and facilitate their operating either in an analog or digital 2011. These adjustments are reflected in timely resolution. We will issue a mode (but not both) for Low Power, the ITSP fee rate, and in the fee rates of Class A, and TV Translators/Boosters, all remaining fee categories listed in the 7 See Assessment and Collection of Regulatory (3) maintain the FY 2012 Interstate table below, ‘‘Table—FY 2012 Schedule Fees for Fiscal Year 2011, Report and Order, 26 FCC of Regulatory Fees.’’ Rcd 10812 (2011) at para. 28 (‘‘FY 2011 Report and Telecommunications Service Provider Order’’). (ITSP) fee rate at the same level as in FY BILLING CODE 6712–01–P

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BILLING CODE 6712–01–C

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FY 2012 SCHEDULE OF REGULATORY FEES [International bearer circuits—submarine cable]

Submarine cable systems (capacity as of December 31, 2011) Fee amount Address

<2.5 Gbps ...... $13,250 FCC, International, P.O. Box 979084, St. Louis, MO 63197– 9000. 2.5 Gbps or greater, but less than 5 Gbps ...... 26,500 FCC, International, P.O. Box 979084, St. Louis, MO 63197– 9000. 5 Gbps or greater, but less than 10 Gbps ...... 52,975 FCC, International, P.O. Box 979084, St. Louis, MO 63197– 9000. 10 Gbps or greater, but less than 20 Gbps ...... 105,975 FCC, International, P.O. Box 979084, St. Louis, MO 63197– 9000. 20 Gbps or greater ...... 211,925 FCC, International, P.O. Box 979084, St. Louis, MO 63197– 9000.

13. In each fiscal year since FY 1999, in prior years, for cases involving small respective estimated payment units, as the Commission allocated the amount multiyear fees (e.g., licenses that are well as by the term of the license (5-year appropriated by Congress (e.g., renewed over a multiyear term), we or 10-year) to determine the unit fee, $339,844,000 in FY 2012) across the divided the allocated amounts by their which was then rounded to be various fee categories, and then divided consistent with the requirements of these allocated amounts by the number (such as for International Bearer Circuits), a per-unit section 9(b)(2) of the Act. This process subscriber fee (such as for Cable, Commercial of estimated payment units in each fee is illustrated in the table below, 8 Mobile Radio Service (‘‘CMRS’’) Cellular/Mobile category to determine the unit fee. As and CMRS Messaging), or a fee factor per revenue ‘‘Table—Calculation of FY 2012 dollar (Interstate Telecommunications Service Revenue Requirements and Pro-Rata 8 In many instances, the regulatory fee amount is Provider (‘‘ITSP’’) fee). The payment unit is the a flat fee per licensee or regulatee. In some measure upon which the fee is based, such as a Fees.’’ instances, the fee amount represents a per-unit fee licensee, regulatee, or subscriber fee. BILLING CODE 6712–01–P

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BILLING CODE 6712–01–C adjusted and rounded our final technical, or other reasons. Our 14. The list of sources for the estimates to take into account factors estimated FY 2012 payment units, estimated FY 2012 payment units that could affect the number of units for therefore, are based on the variable appears in the Table below entitled, which regulatees submit payment. Such factors that are relevant to each fee ‘‘Table—Sources of Payment Unit factors include waivers and exemptions category. The fee rate may also be Estimates for FY 2012.’’ We estimated filed in FYs 2011 and 2012, and rounded or adjusted slightly to account the number of payment units using for these variables. licensee databases, industry and trade fluctuations in the number of licenses or In order to calculate individual group projections, as well as prior year station operators due to economic, service fees for FY 2012, we adjusted FY payment information. In some 2011 payment units for each service to instances, Commission licensee (‘‘IBFS’’), Consolidated Database System (‘‘CDBS’’), and Cable Operations and Licensing System more accurately reflect expected FY databases are used; in other instances, (‘‘COALS’’). We also consulted reports generated 2012 payment liabilities. We obtained actual prior year payment records and/ within the Commission such as the Wireline our updated estimates through a variety or industry and trade association Competition Bureau’s Trends in Telephone Service of means. For example, we used projections are used in determining the and the Wireless Telecommunications Bureau’s Numbering Resource Utilization Forecast and Commission licensee data bases, actual payment units.9 Where appropriate, we Annual CMRS Competition Report, as well as prior year payment records and industry industry sources including, but not limited to, 9 The databases we consulted are the following: Television & Cable Factbook by Warren Publishing, and trade association projections when the Commission’s Universal Licensing System Inc. and the Broadcasting and Cable Yearbook by available. The databases we consulted (‘‘ULS’’), International Bureau Filing System Reed Elsevier, Inc. include our Universal Licensing System

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(‘‘ULS’’), International Bureau Filing all cases; we compared FY 2012 number of actual licensees or station System (‘‘IBFS’’), Consolidated Database estimates with actual FY 2011 payment operators fluctuates from time to time System (‘‘CDBS’’), and Cable Operations units to ensure that our revised due to economic, technical, or other and Licensing System (‘‘COALS’’), as estimates were reasonable. Where reasons. When we note, for example, well as reports generated within the appropriate, we adjusted and/or that our estimated FY 2012 payment Commission such as the Wireline rounded our final estimates to take into units are based on FY 2011 actual Competition Bureau’s Trends in consideration the fact that certain payment units, it does not necessarily Telephone Service and the Wireless variables that impact on the number of mean that our FY 2012 projection is Telecommunications Bureau’s payment units cannot yet be estimated exactly the same number as in FY 2011. Numbering Resource Utilization with sufficient accuracy. These include We have either rounded the FY 2012 an unknown number of waivers and/or Forecast. number or adjusted it slightly to account We sought verification for these exemptions that may occur in FY 2012 for these variables. estimates from multiple sources and, in and the fact that, in many services, the

TABLE—SOURCES OF PAYMENT UNIT ESTIMATES FOR FY 2012

Fee category Sources of payment unit estimates

Land Mobile (All), Microwave, 218–219 MHz, Marine (Ship & Coast), Based on Wireless Telecommunications Bureau (‘‘WTB’’) projections of Aviation (Aircraft & Ground), GMRS, Amateur Vanity Call Signs, Do- new applications and renewals taking into consideration existing mestic Public Fixed. Commission licensee data bases. Aviation (Aircraft) and Marine (Ship) estimates have been adjusted to take into consideration the li- censing of portions of these services on a voluntary basis. CMRS Cellular/Mobile Services ...... Based on WTB projection reports, and FY 2011 payment data. CMRS Messaging Services ...... Based on WTB reports, and FY 2011 payment data. AM/FM Radio Stations ...... Based on CDBS data, adjusted for exemptions, and actual FY 2011 payment units. UHF/VHF Television Stations ...... Based on CDBS data, adjusted for exemptions, and actual FY 2011 payment units. AM/FM/TV Construction Permits ...... Based on CDBS data, adjusted for exemptions, and actual FY 2011 payment units. LPTV, Translators and Boosters, Class A Television ...... Based on CDBS data, adjusted for exemptions, and actual FY 2011 payment units. Broadcast Auxiliaries ...... Based on actual FY 2011 payment units. BRS (formerly MDS/MMDS) ...... Based on WTB reports and actual FY 2011 payment units. LMDS ...... Based on WTB reports and actual FY 2011 payment units. Cable Television Relay Service (‘‘CARS’’) Stations ...... Based on data from Media Bureau’s COALS database and actual FY 2011 payment units. Cable Television System Subscribers...... Based on publicly available data sources for estimated subscriber counts and actual FY 2011 payment units. Interstate Telecommunication Service Providers ...... Based on FCC Form 499–Q data for the four quarters of calendar year 2010, the Wireline Competition Bureau projected the amount of cal- endar year 2009 revenue that will be reported on 2012 FCC Form 499–A worksheets in April, 2012. Earth Stations ...... Based on International Bureau (‘‘IB’’) licensing data and actual FY 2011 payment units. Space Stations (GSOs & NGSOs) ...... Based on IB data reports and actual FY 2011 payment units. International Bearer Circuits ...... Based on IB reports and submissions by licensees. Submarine Cable Licenses ...... Based on IB license information.

A. Regulatory Fee Obligations for AM coupling current United States Census Census data into our broadcast and FM Radio Stations Bureau data with technical and population data. These population engineering data, as detailed in the table counts, along with the station’s class 15. The fee methodology for AM and below entitled, ‘‘Table—Factors, and type of service, are the basis for FM radio stations is based on a number Measurements, and Calculations That determining regulatory fees. We invite of factors, including facility attributes Determine Station Signal Contours and interested parties to comment on and the population served by each Associated Population Coverages.’’ In incorporating the 2010 Census data into station. The calculation of the FY 2012, the Commission will be our broadcast population data. population served is determined by incorporating the results of the 2010

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TABLE—FACTORS, MEASUREMENTS, AND CALCULATIONS THAT DETERMINE STATION SIGNAL CONTOURS AND ASSOCIATED POPULATION COVERAGES

AM Stations For stations with nondirectional daytime antennas, the theoretical radiation was used at all azimuths. For stations with directional daytime anten- nas, specific information on each day tower, including field ratio, phasing, spacing and orientation was retrieved, as well as the theoretical pattern root-mean-square of the radiation in all directions in the horizontal plane (‘‘RMS’’) (figure milliVolt per meter (mV/m) @ 1 km) for the antenna system. The standard, or modified standard if pertinent, horizontal plane radiation pattern was calculated using techniques and meth- ods specified in 73.150 and 73.152 of the Commission’s rules.1 Radiation values were calculated for each of 360 radials around the trans- mitter site. Next, estimated soil conductivity data was retrieved from a database representing the information in FCC Figure R3.2 Using the calculated horizontal radiation values, and the retrieved soil conductivity data, the distance to the principal community (5 mV/m) contour was predicted for each of the 360 radials. The resulting distance to principal community contours were used to form a geographical polygon. Pop- ulation counting was accomplished by determining which 2000 block centroids were contained in the polygon. (A block centroid is the center point of a small area containing population as computed by the U.S. Census Bureau.) The sum of the population figures for all enclosed blocks represents the total population for the predicted principal community coverage area. FM Stations The greater of the horizontal or vertical effective radiated power (‘‘ERP’’) (kW) and respective height above average terrain (‘‘HAAT’’) (m) com- bination was used. Where the antenna height above mean sea level (‘‘HAMSL’’) was available, it was used in lieu of the average HAAT figure to calculate specific HAAT figures for each of 360 radials under study. Any available directional pattern information was applied as well, to produce a radial-specific ERP figure. The HAAT and ERP figures were used in conjunction with the Field Strength (50–50) propagation curves specified in 47 CFR 73.313 of the Commission’s Rules to predict the distance to the principal community (70 dBu (decibel above 1 mi- croVolt per meter) or 3.17 mV/m) contour for each of the 360 radials.3 The resulting distance to principal community contours were used to form a geographical polygon. Population counting was accomplished by determining which 2000 block centroids were contained in the pol- ygon. The sum of the population figures for all enclosed blocks represents the total population for the predicted principal community coverage area.

B. Regulatory Fee Obligations for Digital Commission will provide revised provide public information about the Low Power, Class A, and TV instructions on how regulatory fees will waiver requests that are filed and the Translators/Boosters be assessed. decisions resolving them. To assist in the implementation of these changes, 16. The digital transition to full- C. Regulatory Fee Obligations of we propose to require regulatees filing service television stations was Interstate Telecommunications Service a request for a refund, waiver, fee completed on June 12, 2009, but the Providers digital transition for Low Power, Class reduction, or deferment of payment of A, and TV Translators/Boosters still 17. In our FY 2011 Regulatory Fee an application or regulatory fee to use remains voluntary, even though a Report and Order, we assessed the an online filing system rather than transition date of September 1, 2015 has Interstate Telecommunications Service submitting their requests in hardcopy been set for the completion of this Provider (‘‘ITSP’’) industry a regulatory format. We believe that an online filing transition. Historically, we have only fee of $.00375 per revenue dollar. This system will complement other existing considered the digital transition in the fee reflects the Commission’s decision online Commission systems already in context of regulatory fees applicable to to limit the increase in ITSP regulatory place, such as the Broadcast Radio and full-service television stations, and not fees given the continuing decrease in Television Electronic Filing System to Low Power, Class A, and TV the revenue base upon which ITSP (more commonly referred to as CDBS), Translators/Boosters. Consequently, the regulatory fees are calculated. In FY the Cable Operations and Licensing ‘‘digital only’’ exemption that 2011, we stated that we would rebalance System (COALS), and Consumer previously prevailed does not apply to ITSP regulatory fees in the context of Complaint Forms. The resulting fee Low Power, Class A, and TV Translator/ more fundamental regulatory fee reform, waiver filing system will include such Booster facilities. Because the digital which we will address in the documents as the filed request, any transition in the Low Power, Class A, forthcoming Reform Proceedings. relevant supporting documentation, and and TV Translator/Booster facilities is Because we limited the increase in ITSP the resulting decision. We propose to still voluntary, some of these facilities regulatory fees in FY 2011, and we apply the provisions of section 0.459 to may transition from analog to digital expect that rebalancing ITSP fees will requests that electronically filed service more rapidly than others. During reduce the regulatory fee allocation for material be withheld from public this period of transition, licensees of the ITSP industry, we propose, as an inspection.10 We invite comment from Low Power, Class A, and TV Translator/ interim measure, to assess FY 2012 ITSP regulatees regarding the electronic filing Booster facilities may be operating in regulatory fees at the same fee rate as in of refund, waiver, fee reduction, and analog mode, in digital mode, or in an FY 2011 (.00375). In addition, deferment requests. analog and digital simulcast mode. consistent with our approach in FY E. Administrative and Operational Therefore, for regulatory fee purposes, 2011, we propose to allocate the Issues we conclude that a fee will be assessed remaining revenue requirement across for each facility operating either in an all other fee categories. We seek 19. In FY 2009, the Commission analog or digital mode. In instances in comment on these proposals. implemented several changes in which a licensee is simulcasting in both D. Improving Public Information on analog and digital modes, a single 10 Waiver Requests and Decisions Specifically, Section 0.457(a)(2) through (g) regulatory fee will be assessed for the describe, inter alia, how confidential material analog facility and its corresponding 18. To improve the openness and should be submitted electronically, what showings must be made to justify withholding electronically digital component. We request comment transparency of our fee waiver submitted information from public inspection, and on this proposal. As greater numbers of decisions, we will shortly announce how the Commission will resolve confidentiality facilities convert to digital mode, the improvements in the way that we requests.

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procedures that simplified the payment transition.fcc.gov/fees/regfees.html, Proposed Rulemaking, we proposed to and reconciliation processes of FY 2009 rather than mailing it to regulatees. discontinue mailing the media regulatory fees. In FY 2012, the notifications beginning in FY 2011, B. Pre-Bill Notification and Collection of Commission will continue to promote relying instead on information on the Regulatory Fees greater use of technology (and less use Commission’s Web site and the use of of paper) in improving our regulatory 23. In prior years, the Commission the Commission-authorized Web site at fee notification and collection process. mailed pre-bills via surface mail to www.fccfees.com.18 In FY 2012, we will We seek general comment on improving licensees in select regulatory fee continue the practice of not mailing our fee collection process. categories: ITSPs, Geostationary hardcopy notification assessment letters (‘‘GSO’’) and Non-Geostationary 20. In FY 2009, we instituted a to media licensees. (‘‘NGSO’’) satellite space station mandatory filing requirement using the licensees,13 holders of Cable Television 2. CMRS Cellular and Mobile Services Commission’s electronic filing and Relay Service (‘‘CARS’’) licenses, and Assessments payment system (also known as ‘‘Fee Earth Station licensees.14 The remaining 25. We will continue to follow our Filer’’).11 Licensees filing their annual regulatees did not receive pre-bills. In current procedures for conveying CMRS regulatory fee payments were required our FY 2009 Report and Order, the subscriber counts to providers. We will to begin the process by entering the Commission decided to make the mail an initial assessment letter to Commission’s Fee Filer system with a information contained in these pre-bills Commercial Mobile Radio Service valid FCC Registration Number (‘‘FRN’’) viewable in Fee Filer, rather than (CMRS) providers using data from the and password.12 This change was mailing pre-bills to licensees via surface Numbering Resource Utilization beneficial to both licensees and to the mail.15 We continued this practice in FY Forecast (‘‘NRUF’’) report that is based Commission. For licensees, the 2010 and FY 2011 by placing the pre- on ‘‘assigned’’ number counts that have mandatory use of Fee Filer eliminates bill information on Fee Filer, where it been adjusted for porting to net Type 0 the need to manually complete and could be accessed by licensees through ports (‘‘in’’ and ‘‘out’’).19 The letter will submit a hardcopy Form 159, and for the Commission’s Web site. Regulatees include a listing of the carrier’s the Commission, the data in electronic can also look to the Commission’s Web Operating Company Numbers (‘‘OCNs’’) format makes it much easier to process 20 site for information on upcoming events upon which the assessment is based. payments efficiently and effectively. We and deadlines relating to regulatory fees. The letters will not include OCNs with seek general comment on how to their respective assigned number improve the use of Fee Filer in filing C. Assessment Notifications counts, but rather, an aggregate total of annual regulatory fees. Because 1. Media Services Licensees assigned numbers for each carrier. licensees have different options when 26. A carrier wishing to revise its making their regulatory fee payment (by 24. Beginning in FY 2003, we sent fee subscriber count can do so by accessing credit card, check, wire transfer, etc.), assessment notifications via surface Fee Filer after receiving its initial CMRS the mandatory requirement to use Fee mail to media services entities on a per- assessment letter. Providers should 16 Filer is for the filing of annual facility basis. These notifications follow the prompts in Fee Filer to regulatory fees using Fee Filer, not the provided the assessed fee amount for record their subscriber revisions, along payment of regulatory fees through Fee the facility in question, as well as the with any supporting documentation.21 Filer. In the upcoming Reform data attributes that determined the fee The Commission will then review the Proceeding, we will examine whether to amount. We have since refined this revised count and supporting expand the use of Fee Filer for the filing initiative to be more electronic and documentation and either approve or of regulatory fees. paperless.17 In our FY 2010 Notice of disapprove the submission in Fee Filer. If the submission is disapproved, the V. Fee Collection Procedures 13 Geostationary orbit space station (‘‘GSO’’) Commission will attempt to contact the licensees received regulatory fee pre-bills for 21. Included below are procedural satellites that (1) were licensed by the Commission provider to afford the provider an items as well as our current payment and operational on or before October 1 of the opportunity to discuss its revised and collection methods which we have respective fiscal year; and (2) were not co-located subscriber count and/or provide with and technically identical to another additional supporting documentation. If revised over the past several years to operational satellite on that date (i.e., were not expedite the processing of regulatory fee functioning as a spare satellite). Non-geostationary we receive no response or correction to payments. We do not propose changes orbit space station (‘‘NGSO’’) licensees received the initial assessment letter, or we do to these procedures. Rather, we include regulatory fee pre-bills for systems that were not reverse our initial disapproval of the them here as a useful way of reminding licensed by the Commission and operational on or provider’s revised count submission, we before October 1 of the respective fiscal year. expect the fee payment to be based on regulatory fee payers and the public 14 A pre-bill is considered an account receivable about these aspects of the annual in the Commission’s accounting system. Pre-bills regulatory fee collection process. reflect the amount owed and have a payment due with a telephone number to call in the event that date of the last day of the regulatory fee payment they need customer assistance. A. Public Notices and Fact Sheets window. Consequently, if a pre-bill is not paid by 18 See Assessment and Collection of Regulatory the due date, it becomes delinquent and is subject Fees for Fiscal Year 2010, Report and Order, 25 FCC 22. Each year we post public notices to our debt collection procedures. See also 47 CFR Rcd 9278 at para. 42 (2010) (‘‘FY 2010 Report and and fact sheets pertaining to regulatory 1.1161(c), 1.1164(f)(5), and 1.1910. Order’’). 15 19 fees on our Web site. These documents See FY 2009 Report and Order at paras. 24, 26. See Assessment and Collection of Regulatory 16 An assessment is a proposed statement of the Fees for Fiscal Year 2005 and Assessment and contain information about the payment amount of regulatory fees owed by an entity to the Collection of Regulatory Fees for Fiscal Year 2004, due date and relevant regulatory fee Commission (or proposed subscriber count to be MD Docket Nos. 05–59 and 04–73, Report and payment procedures. We will continue ascribed for purposes of setting the entity’s Order and Order on Reconsideration, 20 FCC Rcd to post this information on http:// regulatory fee), but it is not entered into the 12259, 12264, paras. 38–44 (2005). Commission’s accounting system as a current debt. 20 Id. 17 Those refinements include providing licensees 21 In the supporting documentation, the provider 11 FY 2009 Report and Order at paras. 20 and 21. with a Commission-authorized Web site where they will need to state a reason for the change, such as 12 Therefore, it is important for licensees to have can update or correct any information concerning a purchase or sale of a subsidiary, the date of the a current and valid FRN address on file in the their facilities, and amend their fee-exempt status, transaction, and any other pertinent information Commission’s Registration System (CORES). if need be. The notifications also provide licensees that will help to justify a reason for the change.

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the number of subscribers listed on the their regulatory fee payment on their and Form 159–E remittance advice initial assessment letter. Once the company’s aggregate year-end should be mailed to the following timeframe for revision has passed, the subscriber count, rather than requiring address: Federal Communications subscriber counts are final and are the them to report cable subscriber counts Commission, Regulatory Fees, P.O. Box basis upon which CMRS regulatory fees on a per community unit identifier 979084, St. Louis, MO 63197–9000. are expected to be paid. Providers can (‘‘CUID’’) basis. Additional payment options and instructions are posted at http:// also view their final subscriber counts 2. CMRS Cellular and Mobile Providers online in Fee Filer. A final CMRS transition.fcc.gov/fees/regfees.html. assessment letter will not be mailed out. 30. In FY 2006, we streamlined the 2. Receiving Bank for Wire Payments 27. Because some carriers do not file CMRS payment process by eliminating the NRUF report, they may not receive the requirement for CMRS providers to 33. The receiving bank for all wire an initial assessment letter. In these identify their individual call signs when payments is the Federal Reserve Bank, instances, the carriers should compute making their regulatory fee payment, New York, New York (TREAS NYC). their fee payment using the standard instead allowing CMRS providers to pay When making a wire transfer, regulatees methodology 22 that is currently in place their regulatory fees only at the must fax a copy of their Fee Filer for CMRS Wireless services (e.g., aggregate subscriber level without generated Form 159–E to U.S. Bank, St. compute their subscriber counts as of having to identify their various call Louis, Missouri at (314) 418–4232 at December 31, 2011), and submit their signs.25 We will continue this practice least one hour before initiating the wire fee payment accordingly. Whether a in FY 2012. In FY 2007, we transfer (but on the same business day), carrier receives an assessment letter or consolidated the CMRS cellular and so as not to delay crediting their not, the Commission reserves the right CMRS mobile fee categories into one fee account. Regulatees should discuss to audit the number of subscribers for category with a single fee code, thereby arrangements (including bank closing which regulatory fees are paid. In the eliminating the requirement for CMRS schedules) with their bankers several event that the Commission determines providers to separate their subscriber days before they plan to make the wire that the number of subscribers paid is counts into CMRS cellular and CMRS transfer to allow sufficient time for the inaccurate, the Commission will bill the mobile fee categories during the transfer to be initiated and completed carrier for the difference between what regulatory fee payment process. This before the deadline. Complete was paid and what should have been consolidation of fee categories enabled instructions for making wire payments paid. the Commission to process payments are posted at http://transition.fcc.gov/ more quickly and accurately. For FY fees/wiretran.html. 3. Submarine Cable Allocation 2012, we will continue this practice of 28. Because the dollar amount that the combining the CMRS cellular and 3. De Minimis Regulatory Fees Commission is required to collect could CMRS mobile fee categories into one 34. Regulatees whose total FY 2012 differ from year to year, the revenue regulatory fee category. regulatory fee liability, including all apportionment between submarine 3. Interstate Telecommunications categories of fees for which payment is cable providers and terrestrial/satellite Service Providers due, is less than $10 are exempted from facilities needs to be re-calculated each payment of FY 2012 regulatory fees. year based on an 87.4/12.6 percent 31. In FY 2007, we adopted a proposal 4. Standard Fee Calculations and allocation, respectively.23 Since FY to round lines 14 (total subject Payment Dates 2009, the Commission has used the revenues) and 16 (total regulatory fee 87.4/12.6 percent allocation proposed in owed) on FCC Form 159–W worksheet 35. The Commission will accept fee the Consensus Proposal as the to the nearest dollar. This revision payments made in advance of the percentage upon which to determine the enabled the Commission to process the window for the payment of regulatory regulatory fee revenue amounts for ITSP regulatory fee payments more fees. The responsibility for payment of submarine cable providers and quickly because rounding was fees by service category is as follows: terrestrial/satellite facilities, performed in a consistent manner, • Media Services: Regulatory fees respectively.24 Each year, the thereby eliminating processing issues. must be paid for initial construction Commission reserves the right to revise For FY 2012, we will continue to round permits that were granted on or before this 87.4/12.6 allocation. For FY 2012, lines 14 and 16 when calculating the FY October 1, 2011 for AM/FM radio we do not find any basis to alter this 2012 ITSP fee obligation. In addition, stations, VHF/UHF full service 87.4/12.6 percent revenue allocation. we will continue the practice of not television stations, and satellite mailing out Form 159–W via surface television stations. Regulatory fees must D. Streamlined Regulatory Fee Payment mail. be paid for all broadcast facility licenses Process E. Payment of Regulatory Fees granted on or before October 1, 2011. In 1. Cable Television Subscribers instances where a permit or license is 1. Lock Box Bank 29. The Commission will continue to transferred or assigned after October 1, 32. All lock box payments to the permit cable television operators to base 2011, responsibility for payment rests Commission for FY 2012 will be with the holder of the permit or license 22 See, e.g., Federal Communications processed by U.S. Bank, St. Louis, as of the fee due date. Commission, Regulatory Fees Fact Sheet: What You Missouri, and payable to the FCC. • Wireline (Common Carrier) Owe—Commercial Wireless Services for FY 2011 at During the regulatory fee season, for Services: Regulatory fees must be paid 1 (released September 2011). those licensees paying by check, money for authorizations that were granted on 23 See Assessment and Collection of Regulatory order, or by credit card using Form 159– Fees for Fiscal Year 2008, Second Report and Order, or before October 1, 2011. In instances 24 FCC Rcd 4208 at n. 35 (2009) (‘‘Submarine Cable E remittance advice, the fee payment where a permit or license is transferred Order’’). or assigned after October 1, 2011, 24 See Assessment and Collection of Regulatory 25 See Assessment and Collection of Regulatory responsibility for payment rests with the Fees for Fiscal Year 2009, Report and Order, 24 FCC Fees for Fiscal Year 2006, MD Docket No. 06–68, Rcd 10301 at para. 8 (2009) (‘‘FY 2009 Report and Report and Order, 21 FCC Rcd 8092, 8105, para. 48 holder of the permit or license as of the Order’’). (2006). fee due date. We note that audio

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bridging service providers are included responsibility for payment rests with the F. Enforcement in this category.26 holder of the permit or license as of the 36. To be considered timely, • Wireless Services: CMRS cellular, fee due date. regulatory fee payments must be mobile, and messaging services (fees • International Services: Regulatory received and stamped at the lockbox based on number of subscribers or fees must be paid for earth stations, bank by the due date of regulatory fees. telephone number count): Regulatory geostationary orbit space stations and Section 9(c) of the Act requires us to fees must be paid for authorizations that non-geostationary orbit satellite systems impose a late payment penalty of 25 were granted on or before October 1, percent of the unpaid amount to be 2011. The number of subscribers, units, that were licensed and operational on or assessed on the first day following the or telephone numbers on December 31, before October 1, 2011. In instances deadline date for filing of these fees.28 2011 will be used as the basis from where a permit or license is transferred Failure to pay regulatory fees and/or any which to calculate the fee payment. In or assigned after October 1, 2011, late penalty will subject regulatees to instances where a permit or license is responsibility for payment rests with the sanctions, including those set forth in transferred or assigned after October 1, holder of the permit or license as of the section 1.1910 of the Commission’s 2011, responsibility for payment rests fee due date. rules 29 and in the Debt Collection with the holder of the permit or license • International Services: Submarine Improvement Act of 1996 (‘‘DCIA’’).30 as of the fee due date. Cable Systems: Regulatory fees for We also assess administrative • The first eleven regulatory fee submarine cable systems are to be paid processing charges on delinquent debts categories in our Schedule of Regulatory on a per cable landing license basis to recover additional costs incurred in Fees (see Attachment B) pay ‘‘small based on circuit capacity as of December processing and handling the related multi-year wireless regulatory fees.’’ 31, 2011. In instances where a license is debt pursuant to the DCIA and section Entities pay these regulatory fees in transferred or assigned after October 1, 1.1940(d) of the Commission’s rules.31 advance for the entire amount of their 2011, responsibility for payment rests These administrative processing charges five-year or ten-year term of initial with the holder of the license as of the will be assessed on any delinquent license, and only pay regulatory fees fee due date. For regulatory fee regulatory fee, in addition to the 25 again when the license is renewed or a purposes, the allocation in FY 2012 will percent late charge penalty. In case of new license is obtained. We include remain at 87.6 percent for submarine partial payments (underpayments) of these fee categories in our Schedule of cable and 12.4 percent for satellite/ regulatory fees, the licensee will be Regulatory Fees to publicize our terrestrial facilities. given credit for the amount paid, but if estimates of the number of ‘‘small multi- it is later determined that the fee paid year wireless’’ licenses that will be • International Services: Terrestrial is incorrect or not timely paid, then the renewed or newly obtained in FY 2012. and Satellite Services: Finally, 25 percent late charge penalty (and • Multichannel Video Programming regulatory fees for International Bearer other charges and/or sanctions, as Distributor Services (cable television Circuits are to be paid by facilities-based appropriate) will be assessed on the operators and CARS licensees): common carriers that have active (used portion that is not paid in a timely Regulatory fees must be paid for the or leased) international bearer circuits manner. number of basic cable television as of December 31, 2011 in any 37. We will withhold action on any subscribers as of December 31, 2011.27 terrestrial or satellite transmission applications or other requests for Regulatory fees also must be paid for facility for the provision of service to an benefits filed by anyone who is CARS licenses that were granted on or end user or resale carrier, which delinquent in any non-tax debts owed to before October 1, 2011. In instances includes active circuits to themselves or the Commission (including regulatory where a permit or license is transferred to their affiliates. In addition, non- fees) and will ultimately dismiss those or assigned after October 1, 2011, common carrier satellite operators must applications or other requests if pay a fee for each circuit sold or leased payment of the delinquent debt or other 26 Audio bridging services are toll to any customer, including themselves teleconferencing services, and audio bridging satisfactory arrangement for payment is service providers are required to contribute directly or their affiliates, other than an not made.32 Failure to pay regulatory to the universal service fund based on revenues international common carrier fees can also result in the initiation of from these services. On June 30, 2008, the authorized by the Commission to a proceeding to revoke any and all Commission released the InterCall Order, in which provide U.S. international common the Commission stated that InterCall, Inc. and all authorizations held by the entity similarly situated audio bridging service providers carrier services. ‘‘Active circuits’’ for responsible for paying the delinquent are required to contribute directly to the universal these purposes include backup and fee(s). service fund. See Request for Review by InterCall, redundant circuits as of December 31, BILLING CODE 6712–01–P Inc. of Decision of Universal Service Administrator, 2011. Whether circuits are used CC Docket No. 96–45, Order, 23 FCC Rcd 10731 28 (2008) (‘‘InterCall Order’’). specifically for voice or data is not 47 U.S.C. 159(c). 29 27 Cable television system operators should relevant for purposes of determining See 47 CFR 1.1910. compute their number of basic subscribers as that they are active circuits. In instances 30 Delinquent debt owed to the Commission follows: Number of single family dwellings + where a permit or license is transferred triggers application of the ‘‘red light rule’’ which requires offsets or holds on pending disbursements. number of individual households in multiple or assigned after October 1, 2011, dwelling unit (apartments, condominiums, mobile 47 CFR 1.1910. In 2004, the Commission adopted home parks, etc.) paying at the basic subscriber rate responsibility for payment rests with the rules implementing the requirements of the DCIA. + bulk rate customers + courtesy and free service. holder of the permit or license as of the See Amendment of Parts 0 and 1 of the Note: Bulk-Rate Customers = Total annual bulk-rate fee due date. For regulatory fee Commission’s Rules, MD Docket No. 02–339, Report charge divided by basic annual subscription rate for purposes, the allocation in FY 2012 will and Order, 19 FCC Rcd 6540 (2004); 47 CFR part individual households. Operators may base their 1, subpart O, Collection of Claims Owed the United count on ‘‘a typical day in the last full week’’ of remain at 87.6 percent for submarine States. December 2011, rather than on a count as of cable and 12.4 percent for satellite/ 31 47 CFR 1.1940(d). December 31, 2011. terrestrial facilities. 32 See 47 CFR 1.1161(c), 1.1164(f)(5), and 1.1910.

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BILLING CODE 6712–01–C

FY 2011 RADIO STATION REGULATORY FEES

FM Classes B, Population served AM Class A AM Class B AM Class C AM Class D FM Classes A, C, C0, C1 & B1 & C3 C2

<= 25,000 ...... $700 $575 $525 $600 $675 $850 25,001–75,000 ...... 1,400 1,150 800 900 1,350 1,500 75,001–150,000 ...... 2,100 1,450 1,050 1,500 1,850 2,750 150,001–500,000 ...... 3,150 2,450 1,575 1,800 2,875 3,600 500,001–1,200,000 ...... 4,550 3,750 2,625 3,000 4,550 5,300 1,200,001–3,000,00 ...... 7,000 5,750 3,950 4,800 7,425 8,500 >3,000,000 ...... 8,400 6,900 5,000 6,000 9,450 11,050

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FY 2011 SCHEDULE OF REGULATORY FEES [International Bearer Circuits—Submarine Cable]

Submarine Cable Systems (capacity as of De- cember 31, 2010) Fee amount Address

< 2.5 Gbps ...... $12,825 FCC, International, P.O. Box 979084, St. Louis, MO 63197–9000. 2.5 Gbps or greater, but less than 5 Gbps ...... 25,650 FCC, International, P.O. Box 979084, St. Louis, MO 63197–9000. 5 Gbps or greater, but less than 10 Gbps ...... 51,300 FCC, International, P.O. Box 979084, St. Louis, MO 63197–9000. 10 Gbps or greater, but less than 20 Gbps ...... 102,625 FCC, International, P.O. Box 979084, St. Louis, MO 63197–9000. 20 Gbps or greater ...... 205,225 FCC, International, P.O. Box 979084, St. Louis, MO 63197–9000.

Initial Regulatory Flexibility Analysis VIII. Description and Estimate of the special districts, with a population of Number of Small Entities to Which the less than fifty thousand.’’ 44 Census 1. As required by the Regulatory Rules Will Apply Bureau data for 2002 indicate that there Flexibility Act (‘‘RFA’’),33 the 4. The RFA directs agencies to were 87,525 local governmental Commission prepared this Initial 45 provide a description of, and where jurisdictions in the United States. We Regulatory Flexibility Analysis feasible, an estimate of the number of estimate that, of this total, 84,377 (‘‘IRFA’’) of the possible significant small entities that may be affected by entities were ‘‘small governmental 46 economic impact on small entities by the proposed rules and policies, if jurisdictions.’’ Thus, we estimate that the policies and rules proposed in this adopted.37 The RFA generally defines most governmental jurisdictions are Notice of Proposed Rulemaking. Written the term ‘‘small entity’’ as having the small. public comments are requested on this same meaning as the terms ‘‘small 8. We have included small incumbent IRFA. Comments must be identified as business,’’ ‘‘small organization,’’ and local exchange carriers in this present responses to the IRFA and must be filed ‘‘small governmental jurisdiction.’’ 38 In RFA analysis. As noted above, a ‘‘small on or before the dates indicated on the addition, the term ‘‘small business’’ has business’’ under the RFA is one that, first page of this Notice of Proposed the same meaning as the term ‘‘small inter alia, meets the pertinent small business size standard (e.g., a telephone Rulemaking. The Commission will send business concern’’ under the Small communications business having 1,500 a copy of the Notice, including the Business Act.39 A ‘‘small business concern’’ is one which: (1) Is or fewer employees), and ‘‘is not IRFA, to the Chief Counsel for Advocacy dominant in its field of operation.’’ 47 of the Small Business Administration.34 independently owned and operated; (2) is not dominant in its field of operation; The SBA’s Office of Advocacy contends In addition, the Notice and IRFA (or that, for RFA purposes, small incumbent summaries thereof) will be published in and (3) satisfies any additional criteria 40 local exchange carriers are not dominant the Federal Register.35 established by the SBA. 5. Small Businesses. Nationwide, in their field of operation because any VI. Need for, and Objectives of, the there are a total of approximately 29.6 such dominance is not ‘‘national’’ in 48 Notice million small businesses, according to scope. We have therefore included the SBA.41 small incumbent local exchange carriers 2. This rulemaking proceeding was 6. Small Organizations. Nationwide, in this RFA analysis, although we initiated for the Commission to obtain as of 2002, there are approximately 1.6 emphasize that this RFA action has no comments regarding its proposed million small organizations.42 A ‘‘small effect on Commission analyses and amendment to its Schedule of organization’’ is generally ‘‘any not-for- determinations in other, non-RFA Regulatory Fees in the amount of profit enterprise which is independently contexts. 9. Incumbent Local Exchange Carriers $339,844,000, which is the amount that owned and operated and is not (‘‘ILECs’’). Neither the Commission nor Congress has required the Commission dominant in its field.’’ 43 7. Small Governmental Jurisdictions. the SBA has developed a small business to recover. The Commission seeks to size standard specifically for incumbent collect the necessary amount through its The term ‘‘small governmental jurisdiction’’ is defined generally as local exchange services. The appropriate revised Schedule of Regulatory Fees in size standard under SBA rules is for the the most efficient manner possible and ‘‘governments of cities, towns, townships, villages, school districts, or without undue public burden. 44 5 U.S.C. 601(5). 45 U.S. Census Bureau, Statistical Abstract of the 37 5 U.S.C. 603(b)(3). VII. Legal Basis United States: 2006, Section 8, p. 272, Table 415. 38 5 U.S.C. 601(6). 46 We assume that the villages, school districts, 39 3. This action, including publication 5 U.S.C. 601(3) (incorporating by reference the and special districts are small, and total 48,558. See of proposed rules, is authorized under definition of ‘‘small-business concern’’ in the Small U.S. Census Bureau, Statistical Abstract of the sections (4)(i) and (j), 9, and 303(r) of Business Act, 15 U.S.C. 632). Pursuant to 5 U.S.C. United States: 2006, section 8, p. 273, Table 417. 601(3), the statutory definition of a small business For 2002, Census Bureau data indicate that the total the Communications Act of 1934, as applies ‘‘unless an agency, after consultation with number of county, municipal, and township amended.36 the Office of Advocacy of the Small Business governments nationwide was 38,967, of which Administration and after opportunity for public 35,819 were small. Id. comment, establishes one or more definitions of 47 15 U.S.C. 632. such term which are appropriate to the activities of 33 5 U.S.C. 603. The RFA, 5 U.S.C. 601–612 has 48 Letter from Jere W. Glover, Chief Counsel for the agency and publishes such definition(s) in the been amended by the Contract With America Advocacy, SBA, to William E. Kennard, Chairman, Federal Register.’’ Advancement Act of 1996, Public Law 104–121, FCC (May 27, 1999). The Small Business Act 40 15 U.S.C. 632. 110 Stat. 847 (1996) (‘‘CWAAA’’). Title II of the contains a definition of ‘‘small-business concern,’’ 41 See SBA, Office of Advocacy, ‘‘Frequently CWAAA is the Small Business Regulatory which the RFA incorporates into its own definition Asked Questions,’’ http://web.sba.gov/faqs Enforcement Fairness Act of 1996 (‘‘SBREFA’’). of ‘‘small business.’’ See 15 U.S.C. 632(a) (‘‘Small (accessed Jan. 2009). Business Act’’); 5 U.S.C. 601(3) (‘‘RFA’’). SBA 34 5 U.S.C. 603(a). 42 Independent Sector, The New Nonprofit regulations interpret ‘‘small business concern’’ to 35 Id. Almanac & Desk Reference (2002). include the concept of dominance on a national 36 47 U.S.C. 154(i) and (j), 159, and 303(r). 43 5 U.S.C. 601(4). basis. See 13 CFR 121.102(b).

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category Wired Telecommunications data,54 151 carriers have reported that Commission estimates that the majority Carriers. Under that size standard, such they are engaged in the provision of of IXCs are small entities that may be a business is small if it has 1,500 or local resale services. Of these, an affected by our action. fewer employees.49 According to estimated 149 have 1,500 or fewer 15. Operator Service Providers Commission data,50 1,311 carriers have employees and two have more than (‘‘OSPs’’). Neither the Commission nor reported that they are engaged in the 1,500 employees. Consequently, the the SBA has developed a small business provision of incumbent local exchange Commission estimates that the majority size standard specifically for operator services. Of these 1,311 carriers, an of local resellers are small entities that service providers. The appropriate size estimated 1,024 have 1,500 or fewer may be affected by our action. standard under SBA rules is for the employees and 287 have more than 12. Toll Resellers. The SBA has category Wired Telecommunications 1,500 employees. Consequently, the developed a small business size Carriers. Under that size standard, such Commission estimates that most standard for the category of a business is small if it has 1,500 or providers of incumbent local exchange Telecommunications Resellers. Under fewer employees.61 According to service are small businesses that may be that size standard, such a business is Commission data,62 28 carriers have affected by our action. small if it has 1,500 or fewer reported that they are engaged in the 10. Competitive Local Exchange employees.55 According to Commission provision of operator services. Of these, Carriers (‘‘CLECs’’), Competitive Access data,56 815 carriers have reported that an estimated 27 have 1,500 or fewer Providers (‘‘CAPs’’), ‘‘Shared-Tenant they are engaged in the provision of toll employees and one has more than 1,500 Service Providers,’’ and ‘‘Other Local resale services. Of these, an estimated employees. Consequently, the Service Providers.’’ Neither the 787 have 1,500 or fewer employees and Commission estimates that the majority Commission nor the SBA has developed 28 have more than 1,500 employees. of OSPs are small entities that may be a small business size standard Consequently, the Commission affected by our action. specifically for these service providers. estimates that the majority of toll 16. Prepaid Calling Card Providers. The appropriate size standard under resellers are small entities that may be Neither the Commission nor the SBA SBA rules is for the category Wired affected by our action. has developed a small business size Telecommunications Carriers. Under 13. Payphone Service Providers standard specifically for prepaid calling that size standard, such a business is (‘‘PSPs’’). Neither the Commission nor card providers. The appropriate size small if it has 1,500 or fewer the SBA has developed a small business standard under SBA rules is for the employees.51 According to Commission size standard specifically for payphone category Telecommunications Resellers. data,52 1005 carriers have reported that services providers. The appropriate size Under that size standard, such a they are engaged in the provision of standard under SBA rules is for the business is small if it has 1,500 or fewer 63 either competitive access provider category Wired Telecommunications employees. According to Commission 64 services or competitive local exchange Carriers. Under that size standard, such data, 88 carriers have reported that carrier services. Of these 1005 carriers, a business is small if it has 1,500 or they are engaged in the provision of an estimated 918 have 1,500 or fewer fewer employees.57 According to prepaid calling cards. Of these, an employees and 87 have more than 1,500 Commission data,58 526 carriers have estimated 85 have 1,500 or fewer employees. In addition, 16 carriers have reported that they are engaged in the employees and three have more than reported that they are ‘‘Shared-Tenant provision of payphone services. Of 1,500 employees. Consequently, the Service Providers,’’ and all 16 are these, an estimated 524 have 1,500 or Commission estimates that the majority estimated to have 1,500 or fewer fewer employees and two have more of prepaid calling card providers are employees. In addition, 89 carriers have than 1,500 employees. Consequently, small entities that may be affected by reported that they are ‘‘Other Local the Commission estimates that the our action. 17. 800 and 800-Like Service Service Providers.’’ Of the 89, all have majority of payphone service providers Subscribers.65 Neither the Commission 1,500 or fewer employees. are small entities that may be affected Consequently, the Commission nor the SBA has developed a small by our action. business size standard specifically for estimates that most providers of 14. Interexchange Carriers (‘‘IXCs’’). 800 and 800-like service (‘‘toll free’’) competitive local exchange service, Neither the Commission nor the SBA subscribers. The appropriate size competitive access providers, ‘‘Shared- has developed a small business size standard under SBA rules is for the Tenant Service Providers,’’ and ‘‘Other standard specifically for providers of Local Service Providers’’ are small category Telecommunications Resellers. interexchange services. The appropriate Under that size standard, such a entities that may be affected by our size standard under SBA rules is for the action. business is small if it has 1,500 or fewer category Wired Telecommunications employees.66 The most reliable source 11. Local Resellers. The SBA has Carriers. Under that size standard, such developed a small business size of information regarding the number of a business is small if it has 1,500 or these service subscribers appears to be standard for the category of 59 fewer employees. According to data the Commission receives from Telecommunications Resellers. Under Commission data,60 300 carriers have that size standard, such a business is Database Service Management on the reported that they are engaged in the 800, 866, 877, and 888 numbers in small if it has 1,500 or fewer provision of interexchange service. Of 67 employees.53 According to Commission use. According to our data, at the end these, an estimated 268 have 1,500 or of December 2007, the number of 800 fewer employees and 32 have more than 49 13 CFR 121.201, North American Industry 1,500 employees. Consequently, the Classification System (NAICS) code 517110. 61 13 CFR 121.201, NAICS code 517110. 50 FCC, Wireline Competition Bureau, Industry 62 ‘‘Trends in Telephone Service’’ at Table 5.3. 54 Analysis and Technology Division, ‘‘Trends in ‘‘Trends in Telephone Service’’ at Table 5.3. 63 13 CFR 121.201, NAICS code 517310. Telephone Service’’ at Table 5.3, Page 5–5 (Aug. 55 13 CFR 121.201, NAICS code 517310. 64 ‘‘Trends in Telephone Service’’ at Table 5.3. 2008) (‘‘Trends in Telephone Service’’). This source 56 ‘‘Trends in Telephone Service’’ at Table 5.3. 65 We include all toll-free number subscribers in uses data that are current as of November 1, 2006. 57 3 CFR 121.201, NAICS code 517110. this category. 51 13 CFR 121.201, NAICS code 517110. 58 ‘‘Trends in Telephone Service’’ at Table 5.3. 66 13 CFR 121.201, NAICS code 517310. 52 ‘‘Trends in Telephone Service’’ at Table 5.3. 59 13 CFR 121.201, NAICS code 517110. 67 ‘‘Trends in Telephone Service’’ at Tables 18.4, 53 13 CFR § 121.201, NAICS code 517310. 60 ‘‘Trends in Telephone Service’’ at Table 5.3. 18.5, 18.6, and 18.7.

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numbers assigned was 7,860,000; the alia, ‘‘establishments primarily engaged Bureau has not released data on the number of 888 numbers assigned was in providing specialized establishments broken down by number 5,210,184; the number of 877 numbers telecommunications services, such as of employees, we note that the Census assigned was 4,388,682; and the number satellite tracking, communications Bureau lists total employment for all of 866 numbers assigned was 7,029,116. telemetry, and radar station operation. firms in that sector at 281,262.81 Since We do not have data specifying the This industry also includes all firms with fewer than 1,500 number of these subscribers that are establishments primarily engaged in employees are considered small, given independently owned and operated or providing satellite terminal stations and the total employment in the sector, we have 1,500 or fewer employees, and associated facilities connected with one estimate that the vast majority of thus are unable at this time to estimate or more terrestrial systems and capable wireless firms are small. with greater precision the number of toll of transmitting telecommunications to, 22. Auctions. Initially, we note that, free subscribers that would qualify as and receiving telecommunications from, as a general matter, the number of small businesses under the SBA size satellite systems.’’ 74 For this category, winning bidders that qualify as small standard. Consequently, we estimate Census Bureau data for 2002 show that businesses at the close of an auction that there are 7,860,000 or fewer small there were a total of 332 firms that does not necessarily represent the entity 800 subscribers; 5,210,184 or operated for the entire year.75 Of this number of small businesses currently in fewer small entity 888 subscribers; total, 303 firms had annual receipts of service. Also, the Commission does not 4,388,682 or fewer small entity 877 under $10 million and 15 firms had generally track subsequent business size subscribers, and 7,029,116 or fewer annual receipts of $10 million to unless, in the context of assignments or entity 866 subscribers. $24,999,999.76 Consequently, we transfers, unjust enrichment issues are 18. Satellite Telecommunications and estimate that the majority of All Other implicated. All Other Telecommunications. These Telecommunications firms are small 23. Common Carrier Paging. As noted, two economic census categories address entities that might be affected by our the SBA has developed a small business the satellite industry. The first category action. size standard for Wireless has a small business size standard of 21. Wireless Telecommunications Telecommunications Carriers (except $15 million or less in average annual Carriers (except Satellite). Since 2007, 68 Satellite) firms within the broad receipts, under SBA rules. The second the Census Bureau has placed wireless economic census categories of ‘‘Cellular has a size standard of $25 million or less firms within this new, broad, economic 69 and Other Wireless in annual receipts. The most current census category.77 Prior to that time, Telecommunications.’’ 82 Census Bureau data in this context, such firms were within the now- Since 2007, however, are from the (last) economic superseded categories of ‘‘Paging’’ and the Census Bureau has placed wireless census of 2002, and we will use those ‘‘Cellular and Other Wireless firms within this new, broad, economic census category.83 Prior to that time, figures to gauge the prevalence of small Telecommunications.’’ 78 Under the 70 such firms were within the now- businesses in these categories. present and prior categories, the SBA superseded categories of ‘‘Paging’’ and 19. The category of Satellite has deemed a wireless business to be ‘‘Cellular and Other Wireless Telecommunications ‘‘comprises small if it has 1,500 or fewer Telecommunications.’’ 84 Under the establishments primarily engaged in employees.79 For the category of present and prior categories, the SBA providing telecommunications services Wireless Telecommunications Carriers has deemed a wireless business to be to other establishments in the (except Satellite), preliminary data for small if it has 1,500 or fewer telecommunications and broadcasting 2007 show that there was 11,927 firms employees.85 Because Census Bureau industries by forwarding and receiving operating that year.80 While the Census communications signals via a system of data are not yet available for the new satellites or reselling satellite 74 U.S. Census Bureau, 2007 NAICS Definitions, category, we will estimate small 71 telecommunications.’’ For this ‘‘517919 All Other Telecommunications’’; http:// business prevalence using the prior category, Census Bureau data for 2002 www.census.gov/naics/2007/def/ categories and associated data. For the show that there were a total of 371 firms ND517919.HTM#N517919. category of Paging, data for 2002 show that operated for the entire year.72 Of 75 U.S. Census Bureau, 2002 Economic Census, that there were 807 firms that operated Subject Series: Information, ‘‘Establishment and 86 this total, 307 firms had annual receipts Firm Size (Including Legal Form of Organization),’’ for the entire year. Of this total, 804 of under $10 million, and 26 firms had Table 4, NAICS code 517910 (issued Nov. 2005). firms had employment of 999 or fewer receipts of $10 million to $24,999,999.73 76 Id. An additional 14 firms had annual receipts employees, and three firms had Consequently, we estimate that the of $25 million or more. employment of 1,000 employees or majority of Satellite 77 U.S. Census Bureau, 2007 NAICS Definitions, ‘‘517210 Wireless Telecommunications Categories Telecommunications firms are small (Except Satellite)’’; http://www.census.gov/naics/ 81 Id. entities that might be affected by our 2007/def/ND517210.HTM#N517210. 82 13 CFR 121.201, NAICS code 517212. action. 78 U.S. Census Bureau, 2002 NAICS Definitions, 83 U.S. Census Bureau, 2007 NAICS Definitions, 20. The second category of All Other ‘‘517211 Paging’’; http://www.census.gov/epcd/ ‘‘517210 Wireless Telecommunications Categories Telecommunications comprises, inter naics02/def/NDEF517.HTM.; U.S. Census Bureau, (Except Satellite)’’; http://www.census.gov/naics/ 2002 NAICS Definitions, ‘‘517212 Cellular and 2007/def/ND517210.HTM#N517210. Other Wireless Telecommunications’’; http:// 84 U.S. Census Bureau, 2002 NAICS Definitions, 68 13 CFR 121.201, NAICS code 517410. www.census.gov/epcd/naics02/def/NDEF517.HTM. ‘‘517211 Paging’’; http://www.census.gov/epcd/ 69 13 CFR 121.201, NAICS code 517919. 79 13 CFR 121.201, NAICS code 517210 (2007 naics02/def/NDEF517.HTM.; U.S. Census Bureau, 70 13 CFR 121.201, NAICS codes 517410 and NAICS). The now-superseded, pre-2007 CFR 2002 NAICS Definitions, ‘‘517212 Cellular and 517910 (2002). citations were 13 CFR 121.201, NAICS codes Other Wireless Telecommunications’’; http:// 71 U.S. Census Bureau, 2007 NAICS Definitions, 517211 and 517212 (referring to the 2002 NAICS). www.census.gov/epcd/naics02/def/NDEF517.HTM. ‘‘517410 Satellite Telecommunications’’; http:// 80 U.S. Census Bureau, 2007 Economic Census, 85 13 CFR 121.201, NAICS code 517210 (2007 www.census.gov/naics/2007/def/ND517410.HTM. Sector 51, EC075111 Information: Industry Series: NAICS). The now-superseded, pre-2007 CFR 72 U.S. Census Bureau, 2002 Economic Census, Preliminary Summary Statistics for the United citations were 13 CFR 121.201, NAICS codes Subject Series: Information, ‘‘Establishment and States: 2007, NAICS code 517210 (issued Oct. 20, 517211 and 517212 (referring to the 2002 NAICS). Firm Size (Including Legal Form of Organization),’’ 2009), factfinder.census.gov/servlet/IBQTable?- 86 U.S. Census Bureau, 2002 Economic Census, Table 4, NAICS code 517410 (issued Nov. 2005). fds_name=EC0700A1&-_clearIBQ=Y&- Subject Series: Information, ‘‘Establishment and 73 Id. An additional 38 firms had annual receipts ds_name=EC075111&-NAICS2007=51721 (visited Firm Size (Including Legal Form of Organization,’’ of $25 million or more. Mar. 2, 2011). Table 5, NAICS code 517211 (issued Nov. 2005).

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more.87 For the category of Cellular and in 2003. Seventy-seven bidders claiming employees.103 According to Trends in Other Wireless Telecommunications, small or very small business status won Telephone Service data, 413 carriers data for 2002 show that there were 1,397 2,093 licenses.96 reported that they were engaged in firms that operated for the entire year.88 25. Currently, there are approximately wireless telephony.104 Of these, an Of this total, 1,378 firms had 74,000 Common Carrier Paging licenses. estimated 261 have 1,500 or fewer employment of 999 or fewer employees, According to the most recent Trends in employees and 152 have more than and 19 firms had employment of 1,000 Telephone Service, 281 carriers reported 1,500 employees.105 Therefore, more employees or more.89 Thus, we estimate that they were engaged in the provision than half of these entities can be that the majority of wireless firms are of ‘‘paging and messaging’’ services.97 considered small. small. Of these, an estimated 279 have 1,500 or 29. Broadband Personal 24. In addition, in the Paging Second fewer employees and two have more Communications Service. The Report and Order, the Commission than 1,500 employees.98 We estimate broadband personal communications adopted a size standard for ‘‘small that the majority of common carrier services (‘‘PCS’’) spectrum is divided businesses’’ for purposes of determining paging providers would qualify as small into six frequency blocks designated A their eligibility for special provisions entities under the SBA definition. through F, and the Commission has held such as bidding credits.90 A small 26. 2.3 GHz Wireless Communications auctions for each block. The business is an entity that, together with Services. This service can be used for Commission initially defined a ‘‘small its affiliates and controlling principals, fixed, mobile, radiolocation, and digital business’’ for C- and F-Block licenses as has average gross revenues not audio broadcasting satellite uses. The an entity that has average gross revenues exceeding $15 million for the preceding Commission defined ‘‘small business’’ of $40 million or less in the three three years.91 The SBA has approved for the wireless communications previous years.106 For Block F licenses, this definition.92 An initial auction of services (‘‘WCS’’) auction as an entity an additional small business size Metropolitan Economic Area (‘‘MEA’’) with average gross revenues of $40 standard for ‘‘very small business’’ was licenses was conducted in the year million for each of the three preceding added and is defined as an entity that, 2000. Of the 2,499 licenses auctioned, years, and a ‘‘very small business’’ as an together with its affiliates, has average 93 985 were sold. Fifty-seven companies entity with average gross revenues of gross revenues of not more than $15 claiming small business status won 440 $15 million for each of the three million for the preceding three years.107 licenses.94 A subsequent auction of preceding years.99 The SBA approved 100 These small business size standards, in MEA and Economic Area (‘‘EA’’) these definitions. The Commission the context of broadband PCS auctions, licenses was held in the year 2001. Of conducted an auction of geographic area have been approved by the SBA.108 No the 15,514 licenses auctioned, 5,323 licenses in the WCS service in 1997. In small businesses within the SBA- 95 were sold. One hundred thirty-two the auction, seven bidders that qualified approved small business size standards as very small business entities won companies claiming small business bid successfully for licenses in Blocks A licenses, and one bidder that qualified status purchased 3,724 licenses. A third and B. There were 90 winning bidders auction, consisting of 8,874 licenses in as a small business entity won a license. 27. 1670–1675 MHz Services. This that claimed small business status in the each of 175 EAs and 1,328 licenses in first two C Block auctions.109 A total of all but three of the 51 MEAs, was held service can be used for fixed and mobile uses, except aeronautical mobile.101 An 93 bidders that claimed ‘‘small’’ and ‘‘very small’’ business status won 87 Id. The census data do not provide a more auction for one license in the 1670–1675 precise estimate of the number of firms that have licenses in the first auction of the D, E, MHz band was conducted in 2003. The 110 employment of 1,500 or fewer employees; the winning bidder was not a small entity. and F Blocks. In 1999, the largest category provided is for firms with ‘‘1000 28. Wireless Telephony. Wireless Commission completed a subsequent employees or more.’’ telephony includes cellular, personal auction of C, D, E, and F Block 88 U.S. Census Bureau, 2002 Economic Census, licenses.111 Of the 57 winning bidders Subject Series: Information, ‘‘Establishment and communications services, and Firm Size (Including Legal Form of Organization,’’ specialized mobile radio telephony Table 5, NAICS code 517212 (issued Nov. 2005). carriers. As noted, the SBA has 103 Id. 89 Id. The census data do not provide a more developed a small business size 104 ‘‘Trends in Telephone Service’’ at Table 5.3. 105 precise estimate of the number of firms that have standard for Wireless Id. employment of 1,500 or fewer employees; the 106 See Amendment of Parts 20 and 24 of the largest category provided is for firms with ‘‘1000 Telecommunications Carriers (except Commission’s Rules—Broadband PCS Competitive employees or more.’’ Satellite).102 Under the SBA small Bidding and the Commercial Mobile Radio Service 90 Revision of Part 22 and Part 90 of the business size standard, a business is Spectrum Cap et al., Report and Order, 11 FCC Rcd Commission’s Rules to Facilitate Future small if it has 1,500 or fewer 7824, 7850–52, paras. 57–60 (1996) (‘‘PCS Report Development of Paging Systems, Second Report and and Order’’); see also 47 CFR 24.720(b). Order, 12 FCC Rcd 2732, 2811–2812, paras. 178– 107 See PCS Report and Order, 11 FCC Rcd at 181 (‘‘Paging Second Report and Order’’); see also 96 See ‘‘Lower and Upper Paging Bands Auction 7852, para. 60. Revision of Part 22 and Part 90 of the Commission’s Closes,’’ Public Notice, 18 FCC Rcd 11154 (WTB 108 See Alvarez Letter 1998. 2003). The current number of small or very small Rules to Facilitate Future Development of Paging 109 See Entrepreneurs’ C Block Auction Closes, business entities that hold wireless licenses may Systems, Memorandum Opinion and Order on Public Notice, DA 96–716 (1996); Entrepreneurs C differ significantly from the number of such entities Reconsideration, 14 FCC Rcd 10030, 10085–10088, Block Reauction Closes, Public Notice, DA 96–1153 that won in spectrum auctions due to assignments paras. 98–107 (1999). (1996). 91 and transfers of licenses in the secondary market Paging Second Report and Order, 12 FCC Rcd 110 over time. In addition, some of the same small See Broadband PCS, D, E and F Block Auction at 2811, para. 179. Closes, Public Notice, Doc. No. 89838 (released Jan. 92 See Letter from Aida Alvarez, Administrator, business entities may have won licenses in more than one auction. 14, 1997). SBA, to Amy Zoslov, Chief, Auctions and Industry 111 97 ‘‘Trends in Telephone Service’’ at Table 5.3. See C, D, E, and F Block Broadband PCS Analysis Division, Wireless Telecommunications Auction Closes, Public Notice, 14 FCC Rcd 6688 98 Id. Bureau (‘‘WTB’’), FCC (Dec. 2, 1998) (‘‘Alvarez (1999). Before Auction No. 22, the Commission 99 Letter 1998’’). Amendment of the Commission’s Rules to established a very small standard for the C Block 93 See ‘‘929 and 931 MHz Paging Auction Closes,’’ Establish Part 27, the Wireless Communications to match the standard used for F Block. Public Notice, 15 FCC Rcd 4858 (WTB 2000). Service (WCS), Report and Order, 12 FCC Rcd Amendment of the Commission’s Rules Regarding 94 See id. 10785, 10879, para. 194 (1997). Installment Payment Financing for Personal 95 See ‘‘Lower and Upper Paging Band Auction 100 See Alvarez Letter 1998. Communications Services (PCS) Licensees, WT Closes,’’ Public Notice, 16 FCC Rcd 21821 (WTB 101 47 CFR 2.106; see generally 47 CFR 27.1–.70. Docket No. 97–82, Fourth Report and Order, 13 FCC 2002). 102 13 CFR 121.201, NAICS code 517210. Rcd 15,743, 15,768 para. 46 (1998).

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in that auction, 48 claimed small bidders identified themselves as very not more than $40 million.128 A ‘‘very business status and won 277 licenses.112 small businesses and won 142 small business’’ is an entity that, 30. In 2001, the Commission licenses.121 Twenty-six of the winning together with affiliates and controlling completed the auction of 422 C and F bidders identified themselves as small interests, has average gross revenues for Block Broadband PCS licenses (Auction businesses and won 73 licenses.122 In a the three preceding years of not more 35). Of the 35 winning bidders in that subsequent 2008 auction, the than $15 million.129 The SBA has auction, 29 claimed small or very small Commission offered 35 AWS–1 approved these small business size 113 businesses status. Subsequent events licenses.123 Four winning bidders standards.130 A third auction of concerning that Auction, including identifying themselves as very small Narrowband PCS licenses was judicial and agency determinations, businesses won 17 licenses, and three conducted in 2001. In that auction, five resulted in only a portion of those C and winning bidders identifying themselves bidders won 317 (Metropolitan Trading F Block licenses being available for as a small business won five AWS–1 Areas and nationwide) licenses.131 grant. The Commission completed an licenses.124 Three of the winning bidders claimed auction of 188 C Block licenses and 21 status as a small or very small entity and 32. Narrowband Personal F Block licenses in 2005. Of the 24 won 311 licenses. winning bidders in that auction, 16 Communications Services. In 1994, the claimed small business status and won Commission conducted two auctions of 33. Lower 700 MHz Band Licenses. 156 licenses.114 In 2007, the Narrowband PCS licenses. For these The Commission previously adopted Commission completed an auction of auctions, the Commission defined a criteria for defining three groups of licenses in the A, C, and F Blocks.115 Of ‘‘small business’’ as an entity with small businesses for purposes of the 12 winning bidders in that auction, average annual gross revenues for the determining their eligibility for special five claimed small business status and preceding three years not exceeding $40 provisions such as bidding credits.132 won 18 licenses.116 Most recently, in million.125 Through these auctions, the The Commission defined a ‘‘small 2008, the Commission completed the Commission awarded a total of 41 business’’ as an entity that, together auction of C, D, E, and F Block licenses, 11 of which were obtained by with its affiliates and controlling Broadband PCS licenses.117 Of the eight four small businesses.126 To ensure principals, has average gross revenues winning bidders for Broadband PCS meaningful participation by small not exceeding $40 million for the 133 licenses in that auction, six claimed business entities in future auctions, the preceding three years. A ‘‘very small small business status and won 14 Commission adopted a two-tiered small business’’ is defined as an entity that, licenses.118 business size standard in the together with its affiliates and 31. Advanced Wireless Services. In Narrowband PCS Second Report and controlling principals, has average gross 2006, the Commission conducted its Order.127 A ‘‘small business’’ is an revenues that are not more than $15 million for the preceding three years.134 first auction of Advanced Wireless entity that, together with affiliates and Additionally, the Lower 700 MHz Services licenses in the 1710–1755 MHz controlling interests, has average gross and 2110–2155 MHz bands (‘‘AWS–1’’), Service had a third category of small revenues for the three preceding years of designated as Auction 66.119 For the business status for Metropolitan/Rural AWS–1 bands, the Commission has Service Area (‘‘MSA/RSA’’) licenses— and Order, 18 FCC Rcd 25,162, App. B (2003), defined a ‘‘small business’’ as an entity modified by Service Rules for Advanced Wireless ‘‘entrepreneur’’—which is defined as an with average annual gross revenues for Services In the 1.7 GHz and 2.1 GHz Bands, Order entity that, together with its affiliates the preceding three years not exceeding on Reconsideration, 20 FCC Rcd 14,058, App. C and controlling principals, has average $40 million, and a ‘‘very small (2005). gross revenues that are not more than $3 business’’ as an entity with average 121 See Auction of Advanced Wireless Services million for the preceding three years.135 Licenses Closes; Winning Bidders Announced for annual gross revenues for the preceding Auction No. 66, Public Notice, 21 FCC Rcd 10,521 The SBA approved these small size three years not exceeding $15 (2006) (‘‘Auction 66 Closing Public Notice’’) standards.136 An auction of 740 licenses million.120 In Auction 66, 31 winning 122 See id. was conducted in 2002 (one license in 123 See AWS–1 and Broadband PCS Procedures each of the 734 MSAs/RSAs and one 112 See C, D, E, and F Block Broadband PCS Public Notice, 23 FCC Rcd at 7499. Auction 78 also license in each of the six Economic Area Auction Closes, Public Notice, 14 FCC Rcd 6688 included an auction of broadband PCS licenses. (1999). 124 See ‘‘Auction of AWS–1 and Broadband PCS Groupings (EAGs)). Of the 740 licenses 113 See ‘‘C and F Block Broadband PCS Auction Licenses Closes, Winning Bidders Announced for available for auction, 484 licenses were Closes; Winning Bidders Announced,’’ Public Auction 78, Down Payments Due September 9, won by 102 winning bidders. Seventy- Notice, 16 FCC Rcd 2339 (2001). 2008, FCC Forms 601 and 602 Due September 9, two of the winning bidders claimed 114 See ‘‘Broadband PCS Spectrum Auction 2008, Final Payments Due September 23, 2008, Ten- small business, very small business, or Closes; Winning Bidders Announced for Auction Day Petition to Deny Period’’, Public Notice, 23 FCC No. 58,’’ Public Notice, 20 FCC Rcd 3703 (2005). Rcd 12749–65 (2008). entrepreneur status and won a total of 115 See ‘‘Auction of Broadband PCS Spectrum 125 Implementation of Section 309(j) of the Licenses Closes; Winning Bidders Announced for Communications Act—Competitive Bidding 128 Narrowband PCS Second Report and Order, Auction No. 71,’’ Public Notice, 22 FCC Rcd 9247 Narrowband PCS, Third Memorandum Opinion and 15 FCC Rcd at 10476, para. 40. (2007). Order and Further Notice of Proposed Rulemaking, 129 Id. 116 10 FCC Rcd 175, 196, para. 46 (1994). Id. 130 See Alvarez Letter 1998. 117 126 See ‘‘Announcing the High Bidders in the See Auction of AWS–1 and Broadband PCS 131 See ‘‘Narrowband PCS Auction Closes,’’ Licenses Closes; Winning Bidders Announced for Auction of ten Nationwide Narrowband PCS Public Notice, 16 FCC Rcd 18663 (WTB 2001). Auction 78, Public Notice, 23 FCC Rcd 12,749 Licenses, Winning Bids Total $617,006,674,’’ Public 132 (2008). Notice, PNWL 94–004 (released Aug. 2, 1994); See Reallocation and Service Rules for the 698–746 MHz Spectrum Band (Television Channels 118 Id. ‘‘Announcing the High Bidders in the Auction of 30 52–59), Report and Order, 17 FCC Rcd 1022 (2002) 119 See Auction of Advanced Wireless Services Regional Narrowband PCS Licenses; Winning Bids Total $490,901,787,’’ Public Notice, PNWL 94–27 (‘‘Channels 52–59 Report and Order’’). Licenses Scheduled for June 29, 2006; Notice and 133 Filing Requirements, Minimum Opening Bids, (released Nov. 9, 1994). See Channels 52–59 Report and Order, 17 FCC Upfront Payments and Other Procedures for 127 Amendment of the Commission’s Rules to Rcd at 1087–88, para. 172. Auction No. 66, AU Docket No. 06–30, Public Establish New Personal Communications Services, 134 See id. Notice, 21 FCC Rcd 4562 (2006) (‘‘Auction 66 Narrowband PCS, Second Report and Order and 135 See id, 17 FCC Rcd at 1088, para. 173. Procedures Public Notice’’). Second Further Notice of Proposed Rule Making, 15 136 See Letter from Aida Alvarez, Administrator, 120 See Service Rules for Advanced Wireless FCC Rcd 10456, 10476, para. 40 (2000) SBA, to Thomas Sugrue, Chief, WTB, FCC (Aug. 10, Services in the 1.7 GHz and 2.1 GHz Bands, Report (‘‘Narrowband PCS Second Report and Order’’). 1999) (‘‘Alvarez Letter 1999’’).

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329 licenses.137 A second auction exceed $15 million for the preceding exceeding $3 million for the preceding commenced on May 28, 2003, closed on three years). three years.151 The SBA has approved June 13, 2003, and included 256 36. 700 MHz Guard Band Licenses. In these small business size standards for licenses.138 Seventeen winning bidders 2000, the Commission adopted the 700 both the 800 MHz and 900 MHz SMR claimed small or very small business MHz Guard Band Report and Order, in Service.152 The first 900 MHz SMR status and won 60 licenses, and nine which it established rules for the A and auction was completed in 1996. Sixty winning bidders claimed entrepreneur B block licenses in the Upper 700 MHz bidders claiming that they qualified as status and won 154 licenses.139 In 2005, band, including size standards for small businesses under the $15 million the Commission completed an auction ‘‘small businesses’’ and ‘‘very small size standard won 263 licenses in the of 5 licenses in the lower 700 MHz band businesses’’ for purposes of determining 900 MHz SMR band. In 2004, the (Auction 60). All three winning bidders their eligibility for special provisions Commission held a second auction of claimed small business status. such as bidding credits.144 A small 900 MHz SMR licenses and three 34. In 2007, the Commission business in this service is an entity that, winning bidders identifying themselves reexamined its rules governing the 700 together with its affiliates and as very small businesses won 7 MHz band in the 700 MHz Second controlling principals, has average gross licenses.153 The auction of 800 MHz Report and Order.140 An auction of A, revenues not exceeding $40 million for SMR licenses for the upper 200 B and E block licenses in the Lower 700 the preceding three years.145 channels was conducted in 1997. Ten MHz band was held in 2008.141 Twenty Additionally, a very small business is an bidders claiming that they qualified as winning bidders claimed small business entity that, together with its affiliates small or very small businesses under the status (those with attributable average and controlling principals, has average $15 million size standard won 38 annual gross revenues that exceed $15 gross revenues that are not more than licenses for the upper 200 channels.154 million and do not exceed $40 million $15 million for the preceding three A second auction of 800 MHz SMR for the preceding three years). Thirty years.146 SBA approval of these licenses was conducted in 2002 and 147 three winning bidders claimed very definitions is not required. An included 23 BEA licenses. One bidder small business status (those with auction of these licenses was conducted claiming small business status won five 148 attributable average annual gross in 2000. Of the 104 licenses licenses.155 revenues that do not exceed $15 million auctioned, 96 licenses were won by nine 38. The auction of the 1,053 800 MHz for the preceding three years). bidders. Five of these bidders were SMR licenses for the General Category 35. Upper 700 MHz Band Licenses. In small businesses that won a total of 26 channels was conducted in 2000. Eleven the 700 MHz Second Report and Order, licenses. A second auction of 700 MHz bidders who won 108 licenses for the the Commission revised its rules Guard Band licenses was held in 2001. General Category channels in the 800 regarding Upper 700 MHz band All eight of the licenses auctioned were MHz SMR band qualified as small or 142 licenses. In 2008, the Commission sold to three bidders. One of these very small businesses.156 In an auction 149 conducted Auction 73 in which C and bidders was a small business. completed in 2000, a total of 2,800 D block licenses in the Upper 700 MHz 37. Specialized Mobile Radio. The 143 Economic Area licenses in the lower 80 band were available. Three winning Commission adopted small business channels of the 800 MHz SMR service bidders claimed very small business size standards for the purpose of were awarded.157 Of the 22 winning status (those with attributable average determining eligibility for bidding bidders, 19 claimed small or very small annual gross revenues that do not credits in auctions of Specialized business status and won 129 licenses. Mobile Radio (SMR) geographic area Thus, combining all three auctions, 41 137 See ‘‘Lower 700 MHz Band Auction Closes,’’ licenses in the 800 MHz and 900 MHz winning bidders for geographic licenses Public Notice, 17 FCC Rcd 17272 (WTB 2002). bands. The Commission defined a 138 in the 800 MHz SMR band claimed to See Lower 700 MHz Band Auction Closes, ‘‘small business’’ as an entity that, Public Notice, 18 FCC Rcd 11,873 (WTB 2003). be small businesses. 139 See id. together with its affiliates and 39. In addition, there are numerous 140 Service Rules for the 698–746, 747–762 and controlling principals, has average gross incumbent site-by-site SMR licensees 777–792 MHz Band, WT Docket No. 06–150, revenues not exceeding $15 million for and licensees with extended Revision of the Commission’s Rules to Ensure 150 the preceding three years. The implementation authorizations in the Compatibility with Enhanced 911 Emergency Commission defined a ‘‘very small Calling Systems, CC Docket No. 94–102, Section 800 and 900 MHz bands. We do not 68.4(a) of the Commission’s Rules Governing business’’ as an entity that together with know how many firms provide 800 MHz Hearing Aid-Compatible Telephone, WT Docket No. its affiliates and controlling principals, 01–309, Biennial Regulatory Review—Amendment has average gross revenues not 151 of Parts 1, 22, 24, 27, and 90 to Streamline and 47 CFR 90.810, 90.814(b), 90.912. Harmonize Various Rules Affecting Wireless Radio 152 See Alvarez Letter 1999. 144 Services, WT Docket No. 03–264, Former Nextel See Service Rules for the 746–764 MHz Bands, 153 See 900 MHz Specialized Mobile Radio Communications, Inc. Upper 700 MHz Guard Band and Revisions to Part 27 of the Commission’s Rules, Service Spectrum Auction Closes: Winning Bidders Licenses and Revisions to Part 27 of the Second Report and Order, 15 FCC Rcd 5299 (2000) Announced,’’ Public Notice, 19 FCC Rcd. 3921 Commission’s Rules, WT Docket No. 06–169, (‘‘700 MHz Guard Band Report and Order’’). (WTB 2004). Implementing a Nationwide, Broadband 145 See 700 MHz Guard Band Report and Order, 154 See ‘‘Correction to Public Notice DA 96–586 Interoperable Public Safety Network in the 700 MHz 15 FCC Rcd at 5343, para. 108. ‘FCC Announces Winning Bidders in the Auction Band, PS Docket No. 06–229, Development of 146 See id. of 1020 Licenses to Provide 900 MHz SMR in Major Operational, Technical and Spectrum 147 See id., 15 FCC Rcd 5299, 5343, para. 108 Trading Areas,’ ’’ Public Notice, 18 FCC Rcd 18367 Requirements for Meeting Federal, State, and Local n.246 (for the 746–764 MHz and 776–794 MHz (WTB 1996). Public Safety Communications Requirements bands, the Commission is exempt from 15 U.S.C. 155 See ‘‘Multi-Radio Service Auction Closes,’’ Through the Year 2010, WT Docket No. 96–86, 632, which requires Federal agencies to obtain SBA Public Notice, 17 FCC Rcd 1446 (WTB 2002). Second Report and Order, 22 FCC Rcd 15289 (2007) approval before adopting small business size 156 See ‘‘800 MHz Specialized Mobile Radio (‘‘700 MHz Second Report and Order’’). standards). (SMR) Service General Category (851–854 MHz) and 141 See Auction of 700 MHz Band Licenses 148 See ‘‘700 MHz Guard Bands Auction Closes: Upper Band (861–865 MHz) Auction Closes; Closes, Public Notice, 23 FCC Rcd 4572 (WTB Winning Bidders Announced,’’ Public Notice, 15 Winning Bidders Announced,’’ Public Notice, 15 2008). FCC Rcd 18026 (2000). FCC Rcd 17162 (2000). 142 700 MHz Second Report and Order, 22 FCC 149 See ‘‘700 MHz Guard Bands Auction Closes: 157 See, ‘‘800 MHz SMR Service Lower 80 Rcd 15,289. Winning Bidders Announced,’’ Public Notice, 16 Channels Auction Closes; Winning Bidders 143 See Auction of 700 MHz Band Licenses FCC Rcd 4590 (WTB 2001). Announced,’’ Public Notice, 16 FCC Rcd 1736 Closes, Public Notice, 23 FCC Rcd 4572 (2008). 150 47 CFR 90.810, 90.814(b), 90.912. (2000).

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or 900 MHz geographic area SMR with its affiliates and controlling business operations. For the purpose of pursuant to extended implementation principals, has average gross revenues determining whether a licensee of a authorizations, nor how many of these that do not exceed $3 million for the PLMR system is a small business as providers have annual revenues not preceding three years.163 The SBA has defined by the SBA, we use the broad exceeding $15 million. One firm has approved these small size standards.164 census category, Wireless over $15 million in revenues. In The first auction of Phase II licenses was Telecommunications Carriers (except addition, we do not know how many of conducted in 1998.165 In that auction, Satellite). This definition provides that these firms have 1500 or fewer 908 licenses were offered in three a small entity is any such entity employees.158 We assume, for purposes different-sized geographic areas: three employing no more than 1,500 of this analysis, that all of the remaining nationwide licenses, 30 Regional persons.172 The Commission does not existing extended implementation Economic Area Group (‘‘EAG’’) require PLMR licensees to disclose authorizations are held by small Licenses, and 875 Economic Area (EA) information about number of entities, as that small business size Licenses. Of the 908 licenses auctioned, employees, so the Commission does not standard is approved by the SBA. 693 were sold.166 Thirty-nine small or have information that could be used to 40. 220 MHz Radio Service—Phase I very small businesses won 373 licenses determine how many PLMR licensees Licensees. The 220 MHz service has in the first 220 MHz auction. A second constitute small entities under this both Phase I and Phase II licenses. Phase auction in 1999 offered 225 licenses: definition. We note that PLMR licensees I licensing was conducted by lotteries in 216 EA licenses and 9 EAG licenses. generally use the licensed facilities in 1992 and 1993. There are approximately Fourteen companies claiming very small support of other business activities, and 1,515 such non-nationwide licensees business status won 158 licenses.167 A therefore, it would also be helpful to and four nationwide licensees currently third auction included four licenses: 2 assess PLMR licensees under the authorized to operate in the 220 MHz BEA licenses and 2 EAG licenses in the standards applied to the particular band. The Commission has not 220 MHz Service. No small or very industry subsector to which the licensee developed a definition of small entities small business won any of these belongs.173 specifically applicable to such licenses.168 In 2007, the Commission 43. As of March 2010, there were incumbent 220 MHz Phase I licensees. conducted a fourth auction of the 220 424,162 PLMR licensees operating To estimate the number of such MHz licenses, designated as Auction 921,909 transmitters in the PLMR bands licensees that are small businesses, we 72.169 Auction 72 offered 94 Phase II below 512 MHz. We note that any entity apply the small business size standard 220 MHz Service licenses.170 In this engaged in a commercial activity is under the SBA rules applicable to auction, five winning bidders won a eligible to hold a PLMR license, and that Wireless Telecommunications Carriers total of 76 licenses.171 Two winning any revised rules in this context could (except Satellite).159 This category bidders that identified themselves as therefore potentially impact small provides that a small business is a very small businesses won 56 of the 76 entities covering a great variety of wireless company employing no more licenses. One winning bidder that industries. than 1,500 persons.160 The Commission identified itself as a small business won 44. Fixed Microwave Services. Fixed estimates that most such licensees are 5 licenses. microwave services include common small businesses under the SBA’s small 42. Private Land Mobile Radio carrier,174 private operational-fixed,175 business standard. (‘‘PLMR’’). PLMR systems serve an and broadcast auxiliary radio 41. 220 MHz Radio Service—Phase II essential role in a range of industrial, services.176 At present, there are Licensees. The 220 MHz service has business, land transportation, and approximately 22,015 common carrier both Phase I and Phase II licenses. The public safety activities. These radios are fixed licensees and 61,670 private Phase II 220 MHz service licenses are used by companies of all sizes operating operational-fixed licensees and assigned by auction, where mutually in all U.S. business categories, and are broadcast auxiliary radio licensees in exclusive applications are accepted. In often used in support of the licensee’s the microwave services. The the 220 MHz Third Report and Order, primary (non-telecommunications) Commission has not created a size the Commission adopted small business standard for a small business size standards for defining ‘‘small’’ and 163 Id. specifically with respect to fixed ‘‘very small’’ businesses for the purpose 164 See Letter from Aida Alvarez, Administrator, of determining their eligibility for SBA, to Daniel Phythyon, Chief, WTB, FCC (Jan. 6, 172 See 13 CFR 121.201, NAICS code 517210. 1998) (‘‘Alvarez to Phythyon Letter 1998’’). 173 See generally 13 CFR 121.201. special provisions such as bidding 165 See generally ‘‘220 MHz Service Auction 174 See 47 CFR 101 et seq. for common carrier credits, which are discounts on a Closes,’’ Public Notice, 14 FCC Rcd 605 (1998). fixed microwave services (except Multipoint 161 166 winning bids. that the Commission See ‘‘FCC Announces It is Prepared to Grant Distribution Service). 654 Phase II 220 MHz Licenses After Final Payment defined a ‘‘small business’’ as an entity 175 Persons eligible under parts 80 and 90 of the is Made,’’ Public Notice, 14 FCC Rcd 1085 (1999). that, together with its affiliates and Commission’s Rules can use Private Operational- 167 See ‘‘Phase II 220 MHz Service Spectrum Fixed Microwave services. See 47 CFR Parts 80 and controlling principals, has average gross Auction Closes,’’ Public Notice, 14 FCC Rcd 11218 revenues not exceeding $15 million for 90. Stations in this service are called operational- (1999). fixed to distinguish them from common carrier and 162 the preceding three years. The 168 See ‘‘Multi-Radio Service Auction Closes,’’ public fixed stations. Only the licensee may use the Commission defined a ‘‘very small Public Notice, 17 FCC Rcd 1446 (2002). operational-fixed station, and only for business’’ as an entity that, together 169 See ‘‘Auction of Phase II 220 MHz Service communications related to the licensee’s Spectrum Scheduled for June 20, 2007, Notice and commercial, industrial, or safety operations. Filing Requirements, Minimum Opening Bids, 176 Auxiliary Microwave Service is governed by 158 See generally 13 CFR 121.201, NAICS code Upfront Payments and Other Procedures for Part 74 of Title 47 of the Commission’s rules. See 517210. Auction 72, Public Notice, 22 FCC Rcd 3404 (2007). 47 CFR Part 74. This service is available to licensees 159 Id. 170 Id. of broadcast stations and to broadcast and cable 160 Id. 171 See ‘‘Auction of Phase II 220 MHz Service network entities. Broadcast auxiliary microwave 161 Amendment of Part 90 of the Commission’s Spectrum Licenses Closes, Winning Bidders stations are used for relaying broadcast television Rules to Provide For the Use of the 220–222 MHz Announced for Auction 72, Down Payments due signals from the studio to the transmitter, or Band by the Private Land Mobile Radio Service, July 18, 2007, FCC Forms 601 and 602 due July 18, between two points such as a main studio and an Third Report and Order, 12 FCC Rcd 10943, 11068– 2007, Final Payments due August 1, 2007, Ten-Day auxiliary studio. The service also includes mobile 70, paras. 291–295 (1997). Petition to Deny Period, Public Notice, 22 FCC Rcd television pickups, which relay signals from a 162 Id. at 11068, para. 291. 11573 (2007). remote location back to the studio.

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microwave services. For purposes of Commission established small business revenues not exceeding $3 million for this analysis, the Commission uses the size standards for LMDS licenses. It the preceding three years.187 The SBA SBA small business size standard for the defined a ‘‘small business’’ as an entity has approved these definitions.188 category Wireless Telecommunications that has average gross revenues of not 48. Location and Monitoring Service Carriers (except Satellite), which is more than $40 million in the three (‘‘LMS’’). Multilateration LMS systems 1,500 or fewer employees.177 The preceding years and defined a ‘‘very use non-voice radio techniques to Commission does not have data small business’’ as an entity that, determine the location and status of specifying the number of these licensees together with its affiliates, has average mobile radio units. For auctions of LMS that have no more than 1,500 gross revenues of not more than $15 licenses, the Commission has defined a employees, and thus are unable at this million for the three preceding years.182 ‘‘small business’’ as an entity that, time to estimate with greater precision The SBA approved these small business together with controlling interests and the number of fixed microwave service size standards for auctions of LMDS affiliates, has average annual gross licensees that would qualify as small licenses.183 In 1998, an auction of 986 revenues for the preceding three years business concerns under the SBA’s LMDS licenses was conducted. A total not exceeding $15 million.189 A ‘‘very small business size standard. of 93 winning bidders that qualified as small business’’ is defined as an entity Consequently, the Commission small or very small businesses won that, together with controlling interests estimates that there are 22,015 or fewer approximately 664 licenses. In 1999, the and affiliates, has average annual gross common carrier fixed licensees and Commission conducted an auction of revenues for the preceding three years 61,670 or fewer private operational- 161 LMDS licenses. and in this auction, not exceeding $3 million.190 These fixed licensees and broadcast auxiliary 32 small and very small businesses won definitions have been approved by the radio licensees in the microwave 119 licenses. SBA.191 An auction of LMS licenses was services that may be small and may be 47. 218–219 MHz Service. The first conducted in 1999. Of the 528 licenses affected by the rules and policies auction of 218–219 MHz Service auctioned, 289 licenses were sold to proposed herein. We note, however, that (previously referred to as the Interactive four small businesses. the common carrier microwave fixed and Video Data Service or IVDS) 49. Rural Radiotelephone Service. The licensee category includes some large licenses resulted in 178 entities winning Commission has not adopted a size entities. standard for small businesses specific to licenses for 594 Metropolitan Statistical 192 45. 39 GHz Service. The Commission Areas (‘‘MSAs’’).184 Of the 594 licenses, the Rural Radiotelephone Service. A adopted small business size standards 567 were won by 167 entities qualifying significant subset of the Rural for 39 GHz licenses. A ‘‘small business’’ as a small business. For that auction, the Radiotelephone Service is the Basic is defined as an entity that, together Exchange Telephone Radio System Commission defined a small business as 193 with its affiliates and controlling an entity that, together with its affiliates, (‘‘BETRS’’). In the present context, we will use the SBA’s small business principals, has average gross revenues has no more than a $6 million net worth size standard applicable to Wireless not exceeding $40 million in the and, after federal income taxes 178 Telecommunications Carriers (except preceding three years. A ‘‘very small (excluding any carry over losses), has no Satellite), i.e., an entity employing no business’’ is defined as an entity that, more than $2 million in annual profits more than 1,500 persons.194 There are together with its affiliates and each year for the previous two years.185 approximately 1,000 licensees in the controlling principals, has average gross In the 218–219 MHz Report and Order Rural Radiotelephone Service, and the revenues of not more than $15 million and Memorandum Opinion and Order, 179 Commission estimates that there are for the preceding three years. The the Commission revised its small 1,000 or fewer small entity licensees in SBA has approved these small business business size standards for the 218–219 180 the Rural Radiotelephone Service that size standards. In 2000, the MHz Service and defined a small Commission conducted an auction of may be affected by our action. business as an entity that, together with 50. Air-Ground Radiotelephone 2,173, 39 GHz licenses. A total of 18 its affiliates and persons or entities that bidders who claimed small or very Service.195 The Commission has hold interests in such an entity and previously used the SBA’s small small business status won 849 licenses. their affiliates, has average annual gross 46. Local Multipoint Distribution business definition applicable to revenues not exceeding $15 million for Service. Local Multipoint Distribution Wireless Telecommunications Carriers the preceding three years.186 The Service (‘‘LMDS’’) is a fixed broadband (except Satellite), i.e., an entity Commission defined a very small point-to-multipoint microwave service employing no more than 1,500 business as an entity that, together with 196 that provides for two-way video persons. There are approximately 100 its affiliates and persons or entities that telecommunications.181 The hold interests in such an entity and its 187 Id. 188 177 13 CFR 121.201, NAICS code 517210. affiliates, has average annual gross See Alvarez to Phythyon Letter 1998. 189 178 See Amendment of the Commission’s Rules Amendment of Part 90 of the Commission’s Regarding the 37.0–38.6 GHz and 38.6–40.0 GHz on Reconsideration, and Fifth Notice of Proposed Rules to Adopt Regulations for Automatic Vehicle Bands, ET Docket No. 95–183, Report and Order, 12 Rule Making, 12 FCC Rcd 12545, 12689–90, para. Monitoring Systems, Second Report and Order, 13 FCC Rcd 18600 (1997). 348 (1997) (‘‘LMDS Second Report and Order’’). FCC Rcd 15182, 15192, para. 20 (1998) (‘‘Automatic 182 Vehicle Monitoring Systems Second Report and 179 Id. See LMDS Second Report and Order, 12 FCC Order’’); see also 47 CFR 90.1103. 180 Rcd at 12689–90, para. 348. See Letter from Aida Alvarez, Administrator, 190 183 Automatic Vehicle Monitoring Systems SBA, to Kathleen O’Brien Ham, Chief, Auctions and See Alvarez to Phythyon Letter 1998. Second Report and Order, 13 FCC Rcd at 15192, 184 See ‘‘Interactive Video and Data Service Industry Analysis Division, WTB, FCC (Feb. 4, para. 20; see also 47 CFR 90.1103. 1998); see Letter from Hector Barreto, (IVDS) Applications Accepted for Filing,’’ Public 191 See Alvarez Letter 1998. Administrator, SBA, to Margaret Wiener, Chief, Notice, 9 FCC Rcd 6227 (1994). 192 Auctions and Industry Analysis Division, WTB, 185 Implementation of Section 309(j) of the The service is defined in 22.99 of the FCC (Jan. 18, 2002). Communications Act—Competitive Bidding, Fourth Commission’s rules, 47 CFR 22.99. 193 181 See Rulemaking to Amend Parts 1, 2, 21, 25, Report and Order, 9 FCC Rcd 2330 (1994). BETRS is defined in 22.757 and 22.759 of the of the Commission’s Rules to Redesignate the 27.5– 186 Amendment of Part 95 of the Commission’s Commission’s rules, 47 CFR 22.757 and 22.759. 29.5 GHz Frequency Band, Reallocate the 29.5–30.5 Rules to Provide Regulatory Flexibility in the 218– 194 13 CFR 121.201, NAICS code 517210. Frequency Band, to Establish Rules and Policies for 219 MHz Service, Report and Order and 195 The service is defined in 22.99 of the Local Multipoint Distribution Service and for Fixed Memorandum Opinion and Order, 15 FCC Rcd 1497 Commission’s rules, 47 CFR 22.99. Satellite Services, Second Report and Order, Order (1999). 196 13 CFR 121.201, NAICS codes 517210.

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licensees in the Air-Ground standard.202 In 1998, the Commission (except Satellite) services.207 Under that Radiotelephone Service, and under that held an auction of 42 VHF Public Coast SBA small business size standard, a definition, we estimate that almost all of licenses in the 157.1875–157.4500 MHz business is small if it has 1,500 or fewer them qualify as small entities under the (ship transmit) and 161.775–162.0125 employees.208 SBA definition. For purposes of MHz (coast transmit) bands. For VHF 53. Multiple Address Systems assigning Air-Ground Radiotelephone Public Coast licenses, the Commission (‘‘MAS’’). Entities using MAS spectrum, Service licenses through competitive defined a ‘‘small’’ business as an entity in general, fall into two categories: (1) bidding, the Commission has defined that, together with controlling interests those using the spectrum for profit- ‘‘small business’’ as an entity that, and affiliates, has average gross based uses, and (2) those using the together with controlling interests and revenues for the preceding three years spectrum for private internal uses. The affiliates, has average annual gross not exceeding $15 million dollars. In Commission defines a small business for revenues for the preceding three years addition, it defined a ‘‘very small’’ MAS licenses as an entity that has not exceeding $40 million.197 A ‘‘very business as one that, together with average gross revenues of less than $15 small business’’ is defined as an entity controlling interests and affiliates, has million in the preceding three calendar that, together with controlling interests average gross revenues for the preceding years.209 A very small business is and affiliates, has average annual gross three years not exceeding $3 million defined as an entity that, together with revenues for the preceding three years dollars.203 The Commission also made its affiliates, has average gross revenues not exceeding $15 million.198 These available Automated Maritime of not more than $3 million for the definitions were approved by the Telecommunications System (‘‘AMTS’’) preceding three calendar years.210 The SBA.199 In 2006, the Commission licenses in Auctions 57 and 61.204 SBA has approved these definitions.211 completed an auction of nationwide Winning bidders could claim status as The majority of these entities will most commercial Air-Ground Radiotelephone a very small business or a very small likely be licensed in bands where the Service licenses in the 800 MHz band business. For AMTS, the Commission Commission has implemented a (Auction 65). The auction closed with defined a very small business as an geographic area licensing approach that two winning bidders winning two Air- entity with attributed average annual would require the use of competitive Ground Radiotelephone Services gross revenues that do not exceed $3 bidding procedures to resolve mutually licenses. Neither of the winning bidders million for the preceding three years, exclusive applications. The claimed small business status. and defined a small business as an Commission’s licensing database 51. Aviation and Marine Radio entity with attributed average annual indicates that, as of March 5, 2010, there Services. There are approximately gross revenues not exceeding $15 were over 11,500 MAS station 26,162 aviation, 34,555 marine (ship), million for the preceding three years.205 authorizations. In 2001, an auction of and 3,296 marine (coast) licensees.200 Three of the winning bidders in Auction 5,104 MAS licenses in 176 EAs was 212 The Commission has not developed a 57 qualified as small or very small conducted in 2001. Seven winning small business size standard specifically businesses, and three winning bidders bidders claimed status as small or very applicable to all licensees. For purposes in Auction 61 qualified as very small small businesses and won 611 licenses. of this analysis, we will use the SBA businesses. In 2005, the Commission completed an auction (Auction 59) of 4,226 MAS small business size standard for the 52. Offshore Radiotelephone Service. licenses in the Fixed Microwave category Wireless Telecommunications This service operates on several ultra Services from the 928/959 and 932/941 Carriers (except Satellite), which is high frequencies (‘‘UHF’’) television 201 MHz bands. Twenty-six winning 1,500 or fewer employees. We are broadcast channels that are not used for bidders won a total of 2,323 licenses. Of unable to determine how many of those television broadcasting in the coastal the 26 winning bidders in this auction, licensed fall under this standard. For areas of states bordering the Gulf of five claimed small business status and purposes of our evaluations in this Mexico.206 There is presently 1 licensee analysis, we estimate that there are up won 1,891 licenses. in this service. We do not have 54. With respect to entities that use, to approximately 62,969 licensees that information whether that licensee are small businesses under the SBA or seek to use, MAS spectrum to would qualify as small under the SBA’s accommodate internal communications small business size standard for 197 needs, we note that MAS serves an Amendment of Part 22 of the Commission’s Wireless Telecommunications Carriers Rules to Benefit the Consumers of Air-Ground essential role in a range of industrial, Telecommunications Services, Biennial Regulatory safety, business, and land transportation Review—Amendment of Parts 1, 22, and 90 of the 202 A licensee may have a license in more than activities. MAS radios are used by Commission’s Rules, Amendment of Parts 1 and 22 one category. of the Commission’s Rules to Adopt Competitive 203 Amendment of the Commission’s Rules companies of all sizes, operating in Bidding Rules for Commercial and General Aviation Concerning Maritime Communications, PR Docket virtually all U.S. business categories, Air-Ground Radiotelephone Service, WT Docket No. 92–257, Third Report and Order and and by all types of public safety entities. Nos. 03–103 and 05–42, Order on Reconsideration Memorandum Opinion and Order, 13 FCC Rcd For the majority of private internal and Report and Order, 20 FCC Rcd 19663, paras. 19853 (1998). users, the small business size standard 28 through 42 (2005). 204 See ‘‘Automated Maritime 198 Id. Telecommunications System Spectrum Auction developed by the SBA would be more 199 See Letter from Hector V. Barreto, Scheduled for September 15, 2004, Notice and appropriate. The applicable size Administrator, SBA, to Gary D. Michaels, Deputy Filing Requirements, Minimum Opening Bids, standard in this instance appears to be Chief, Auctions and Spectrum Access Division, Upfront Payments and Other Auction Procedures,’’ WTB, FCC (Sept. 19, 2005). Public Notice, 19 FCC Rcd 9518 (WTB 2004); 207 13 CFR 121.201, NAICS code 517210. 200 Vessels that are not required by law to carry ‘‘Auction of Automated Maritime 208 a radio and do not make international voyages or Telecommunications System Licenses Scheduled Id. communications are not required to obtain an for August 3, 2005, Notice and Filing Requirements, 209 See Amendment of the Commission’s Rules individual license. See Amendment of Parts 80 and Minimum Opening Bids, Upfront Payments and Regarding Multiple Address Systems, Report and 87 of the Commission’s Rules to Permit Operation Other Auction Procedures for Auction No. 61,’’ Order, 15 FCC Rcd 11956, 12008, para. 123 (2000). of Certain Domestic Ship and Aircraft Radio Public Notice, 20 FCC Rcd 7811 (WTB 2005). 210 Id. Stations Without Individual Licenses, Report and 205 47 CFR 80.1252. 211 See Alvarez Letter 1999. Order, WT Docket No. 96–82, 11 FCC Rcd 14849 206 This service is governed by Subpart I of Part 212 See ‘‘Multiple Address Systems Spectrum (1996). 22 of the Commission’s rules. See 47 CFR 22.1001– Auction Closes,’’ Public Notice, 16 FCC Rcd 21011 201 13 CFR 121.201, NAICS code 517210. 22.1037. (2001).

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that of Wireless Telecommunications credits, the Commission established winning bidders, 61 met the definition Carriers (except Satellite). This three small business definitions. An of a small business. At this time, we definition provides that a small entity is ‘‘entrepreneur’’ is defined as an entity estimate that of the 61 small businesses any such entity employing no more than that, together with controlling interests that won BRS licenses in the 1996 1,500 persons.213 The Commission’s and affiliates, has average annual gross auction, 48 remain small business licensing database indicates that, as of revenues for the three preceding years licensees. BRS also includes licensees of January 20, 1999, of the 8,670 total MAS not exceeding $40 million.219 A ‘‘small stations authorized prior to the 1996 station authorizations, 8,410 business’’ is defined as an entity that, auction. In addition to the 48 small authorizations were for private radio together with controlling interests and businesses that hold BTA service, and of these, 1,433 were for affiliates, has average annual gross authorizations, there are approximately private land mobile radio service. revenues for the three preceding years 392 incumbent BRS licensees that are 55. 1.4 GHz Band Licensees. The not exceeding $15 million.220 A ‘‘very considered small entities.225 In 2008, Commission conducted an auction of 64 small business’’ in the 24 GHz band is the Commission adopted three small 1.4 GHz band licenses in the paired defined as an entity that, together with business definitions for BRS, for the 1392–1395 MHz and 1432–1435 MHz controlling interests and affiliates, has purpose of determining eligibility for bands, and in the unpaired 1390–1392 average gross revenues not exceeding $3 bidding credits. A ‘‘small business’’ is MHz band in 2007.214 For these million for the preceding three years.221 defined as an entity with attributed licenses, the Commission defined The SBA has approved these average annual gross revenues that do ‘‘small business’’ as an entity that, definitions.222 In a 2004 auction of 24 not exceed $40 million for the preceding together with its affiliates and GHz licenses, three winning bidders three years. A ‘‘very small business’’ is controlling interests, had average gross won seven licenses. Two of the winning defined as an entity with attributed revenues not exceeding $40 million for bidders were very small businesses that average annual gross revenues that do the preceding three years, and a ‘‘very won five licenses. not exceed $15 million for the preceding small business’’ as an entity that, 58. Broadband Radio Service and three years. An ‘‘entrepreneur’’ is together with its affiliates and Educational Broadband Service. defined as an entity with attributed controlling interests, has had average Broadband Radio Service systems, average annual gross revenues that do annual gross revenues not exceeding previously referred to as Multipoint not exceed $3 million for the preceding $15 million for the preceding three Distribution Service (‘‘MDS’’) and three years.226 In 2009, the Commission years.215 Neither of the two winning Multichannel Multipoint Distribution conducted Auction 86, which offered 78 bidders claimed small business Service (‘‘MMDS’’) systems, provide BRS licenses.227 Auction 86 concluded status.216 two-way high speed data operations with the sale of 61 licenses.228 Of the 56. Incumbent 24 GHz Licensees. This using the microwave frequencies of the ten winning bidders, three bidders that analysis may affect incumbent licensees Broadband Radio Service (‘‘BRS’’) and claimed small business status won 7 who were relocated to the 24 GHz band Educational Broadband Service (‘‘EBS’’) licenses, and two bidders that claimed from the 18 GHz band, and applicants (previously referred to as the entrepreneur status won six licenses. who wish to provide services in the 24 Instructional Television Fixed Service After adding the number of small GHz band. The applicable SBA small (‘‘ITFS’’)).223 Some BRS systems, known businesses that won licenses in the business size standard is that of as ‘‘wireless cable’’, transmit video Commission’s BRS auctions to the Wireless Telecommunications Carriers programming to subscribers. In approximately 392 incumbent BRS (except Satellite). This category connection with the 1996 BRS auction, licensees who are considered small provides that such a company is small the Commission established a size entities, we estimate that there are if it employs no more than 1,500 standard that defined a ‘‘small currently approximately 445 BRS persons.217 The broader census data business’’ as an entity that had annual licensees that are defined as small notwithstanding, we believe that there average gross revenues of no more than businesses under either the SBA or the are only two licensees in the 24 GHz $40 million in the preceding three Commission’s rules. band that were relocated from the 18 years.224 The BRS auctions resulted in 59. Television Broadcasting. This GHz band, Teligent 218 and TRW, Inc. It 67 successful bidders obtaining Economic Census category ‘‘comprises is our understanding that Teligent and licensing opportunities for 493 Basic its related companies have fewer than Trading Areas (‘‘BTAs’’). Of the 67 225 47 U.S.C. 309(j). Hundreds of stations were 1,500 employees, though this may licensed to incumbent MDS licensees prior to 219 implementation of Section 309(j) of the change in the future. TRW is not a small Amendments to Parts 1, 2, 87 and 101 of the Communications Act of 1934, 47 U.S.C. 309(j). For entity. Commission’s Rules To License Fixed Services at 24 these pre-auction licenses, the applicable standard 57. Future 24 GHz Licensees. With GHz, Report and Order, 15 FCC Rcd 16934, 16967 is SBA’s small business size standard. para. 77 (2000) (‘‘24 GHz Report and Order’’); see 226 respect to new applicants for licenses in also 47 CFR 101.538(a)(3). Amendment of Parts 1, 21, 73, 74 and 101 of 220 the Commission’s Rules to Facilitate the Provision the 24 GHz band, for the purpose of 24 GHz Report and Order, 15 FCC Rcd at of Fixed and Mobile Broadband Access, determining eligibility for bidding 16967 para. 77; see also 47 CFR 101.538(a)(2). Educational and Other Advanced Services in the 221 24 GHz Report and Order, 15 FCC Rcd at 2150–2162 and 2500–2690 MHz Bands, WT Docket 16967 para. 77; see also 47 CFR 101.538(a)(1). 213 See 13 CFR 121.201, NAICS code 517210. No. 03–66, Fourth Memorandum Opinion and 222 See Letter from Gary M. Jackson, Assistant 214 See ‘‘Auction of 1.4 GHz Bands Licenses Order and Second Further Notice of Proposed Administrator, SBA, to Margaret W. Wiener, Deputy Rulemaking, 23 FCC Rcd 5992, 6007 para. 28 (2008) Scheduled for February 7, 2007,’’ Public Notice, 21 Chief, Auctions and Industry Analysis Division, (‘‘BRS/EBS 4th MO&O & 2nd FNPRM’’). FCC Rcd 12393 (WTB 2006); ‘‘Auction of 1.4 GHz WTB, FCC (July 28, 2000). 227 Band Licenses Closes; Winning Bidders Announced Auction of Broadband Radio Service (BRS) 223 Amendment of Parts 21 and 74 of the for Auction No. 69,’’ Public Notice, 22 FCC Rcd Licenses, Scheduled for October 27, 2009, Notice Commission’s Rules with Regard to Filing 4714 (2007) (‘‘Auction No. 69 Closing PN’’). and Filing Requirements, Minimum Opening Bids, Procedures in the Multipoint Distribution Service 215 Upfront Payments, and Other Procedures for Auction No. 69 Closing PN, Attachment C. and in the Instructional Television Fixed Service Auction 86, Public Notice, 24 FCC Rcd 8277 (2009). 216 See Auction No. 69 Closing PN. and Implementation of Section 309(j) of the 228 Auction of Broadband Radio Service Licenses 217 13 CFR 121.201, NAICS code 517210. Communications Act—Competitive Bidding, MM Closes, Winning Bidders Announced for Auction 218 Teligent acquired the DEMS licenses of Docket No. 94–131 and PP Docket No. 93–253, 86, Down Payments Due November 23, 2009, Final FirstMark, the only licensee other than TRW in the Report and Order, 10 FCC Rcd 9589, 9593, para. 7 Payments Due December 8, 2009, Ten-Day Petition 24 GHz band whose license has been modified to (1995) (‘‘MDS Auction R&O’’). to Deny Period, Public Notice, 24 FCC Rcd 13572 require relocation to the 24 GHz band. 224 47 CFR 21.961(b)(1). (2009).

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establishments primarily engaged in stations are non-profit, and therefore licensees. The applicable definitions of broadcasting images together with considered to be small entities.235 small entities are those, noted sound. These establishments operate 62. In addition, there are also 2,528 previously, under the SBA rules television broadcasting studios and low power television stations, including applicable to radio broadcasting stations facilities for the programming and Class A stations (LPTV).236 Given the and television broadcasting stations.241 transmission of programs to the nature of these services, we will 66. The Commission estimates that public.’’ 229 The SBA has created the presume that all LPTV licensees qualify there are approximately 6,099 FM following small business size standard as small entities under the above SBA translators and boosters.242 The for Television Broadcasting firms: those small business size standard. Commission does not collect financial having $14 million or less in annual 63. Radio Broadcasting. This information on any broadcast facility, receipts.230 The Commission has Economic Census category ‘‘comprises and the Department of Commerce does estimated the number of licensed establishments primarily engaged in not collect financial information on commercial television stations to be broadcasting aural programs by radio to these auxiliary broadcast facilities. We 1,387.231 In addition, according to the public. Programming may originate believe that most, if not all, of these Commission staff review of the BIA in their own studio, from an affiliated 237 auxiliary facilities could be classified as Advisory Services, LLC’s Media Access network, or from external sources.’’ small businesses by themselves. We also Pro Television Database on March 28, The SBA has established a small recognize that most commercial business size standard for this category, 2012, about 950 of an estimated 1,300 translators and boosters are owned by a which is: Such firms having $7 million commercial television stations (or parent station which, in some cases, or less in annual receipts.238 According approximately 73 percent) had revenues would be covered by the revenue 232 to Commission staff review of BIA of $14 million or less. We therefore definition of small business entity Advisory Services, LLC’s Media Access estimate that the majority of commercial discussed above. These stations would Pro Radio Database on March 28, 2012, television broadcasters are small likely have annual revenues that exceed about 10,759 (97%) of 11,102 entities. the SBA maximum to be designated as 60. We note, however, that in commercial radio stations had revenues a small business ($7.0 million for a assessing whether a business concern of $7 million or less. Therefore, the radio station or $14.0 million for a TV qualifies as small under the above majority of such entities are small station). Furthermore, they do not meet definition, business (control) entities. the Small Business Act’s definition of a affiliations 233 must be included. Our 64. We note, however, that in ‘‘small business concern’’ because they estimate, therefore, likely overstates the assessing whether a business concern are not independently owned and number of small entities that might be qualifies as small under the above size operated. 243 affected by our action, because the standard, business affiliations must be revenue figure on which it is based does included.239 In addition, to be 67. Cable Television Distribution not include or aggregate revenues from determined to be a ‘‘small business,’’ the Services. Since 2007, these services affiliated companies. In addition, an entity may not be dominant in its field have been defined within the broad element of the definition of ‘‘small of operation.240 We note that it is economic census category of Wired business’’ is that the entity not be difficult at times to assess these criteria Telecommunications Carriers; that dominant in its field of operation. We in the context of media entities, and our category is defined as follows: ‘‘This are unable at this time to define or estimate of small businesses may industry comprises establishments quantify the criteria that would therefore be over-inclusive. primarily engaged in operating and/or establish whether a specific television 65. Auxiliary, Special Broadcast and providing access to transmission station is dominant in its field of Other Program Distribution Services. facilities and infrastructure that they operation. Accordingly, the estimate of This service involves a variety of own and/or lease for the transmission of small businesses to which rules may transmitters, generally used to relay voice, data, text, sound, and video using apply does not exclude any television broadcast programming to the public wired telecommunications networks. station from the definition of a small (through translator and booster stations) Transmission facilities may be based on business on this basis and is therefore or within the program distribution chain a single technology or a combination of possibly over-inclusive to that extent. (from a remote news gathering unit back technologies.’’ 244 The SBA has 61. In addition, the Commission has to the station). The Commission has not developed a small business size estimated the number of licensed developed a definition of small entities standard for this category, which is: All noncommercial educational (NCE) applicable to broadcast auxiliary such firms having 1,500 or fewer television stations to be 396.234 These employees. To gauge small business 2012; http://transition.fcc.gov/Daily_Releases/ prevalence for these cable services we 229 U.S. Census Bureau, 2007 NAICS Definitions, Daily_Business/2012/db0106/DOC-311837A1.pdf. must, however, use current census data ‘‘515120 Television Broadcasting’’ (partial 235 See generally 5 U.S.C. 601(4), (6). that are based on the previous category definition); http://www.census.gov/naics/2007/def/ 236 See FCC News Release, ‘‘Broadcast Station of Cable and Other Program Distribution ND515120.HTM#N515120. Totals as of December 31, 2011,’’ dated January 6, 230 13 CFR 121.201, NAICS code 515120 (updated 2012; http://transition.fcc.gov/Daily_Releases/ and its associated size standard; that for inflation in 2010). Daily_Business/2012/db0106/DOC-311837A1.pdf. size standard was: All such firms having 231 See FCC News Release, ‘‘Broadcast Station 237 U.S. Census Bureau, 2007 NAICS Definitions, $13.5 million or less in annual Totals as of December 31, 2011,’’ dated January 6, ‘‘515112 Radio Stations’’; http://www.census.gov/ receipts.245 According to Census Bureau 2012; http://transition.fcc.gov/Daily_Releases/ naics/2007/def/ND515112.HTM#N515112. Daily_Business/2012/db0106/DOC-311837A1.pdf. 238 13 CFR 121.201, NAICS code 515112 (updated 232 We recognize that BIA’s estimate differs for inflation in 2010). 241 13 CFR 121.201, NAICS codes 515112 and slightly from the FCC total given supra. 239 ‘‘Concerns and entities are affiliates of each 515120. 233 ‘‘[Business concerns] are affiliates of each other when one controls or has the power to control 242 See supra note 294. other when one concern controls or has the power the other, or a third party or parties controls or has 243 See 15 U.S.C. 632. to control the other or a third party or parties the power to control both. It does not matter 244 U.S. Census Bureau, 2007 NAICS Definitions, controls or has to power to control both.’’ 13 CFR whether control is exercised, so long as the power ‘‘517110 Wired Telecommunications Carriers’’ 21.103(a)(1). to control exists.’’ 13 CFR 121.103(a)(1) (an SBA (partial definition); http://www.census.gov/naics/ 234 See FCC News Release, ‘‘Broadcast Station regulation). 2007/def/ND517110.HTM#N517110. Totals as of December 31, 2011,’’ dated January 6, 240 13 CFR 121.102(b) (an SBA regulation). 245 13 CFR 121.201, NAICS code 517110.

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data for 2002, there were a total of 1,191 exceed $250 million in the aggregate.253 operated for the entire year.260 Of this firms in this previous category that Industry data indicate that, of 1,076 total, 1,087 firms had annual receipts of operated for the entire year.246 Of this cable operators nationwide, all but ten under $10 million, and 43 firms had total, 1,087 firms had annual receipts of are small under this size standard.254 receipts of $10 million or more but less under $10 million, and 43 firms had We note that the Commission neither than $25 million.261 Thus, the majority receipts of $10 million or more but less requests nor collects information on of cable firms can be considered small. than $25 million.247 Thus, the majority whether cable system operators are In addition, we note that the of these firms can be considered small. affiliated with entities whose gross Commission has certified some OVS 68. Cable Companies and Systems. annual revenues exceed $250 operators, with some now providing The Commission has also developed its million,255 and therefore we are unable service.262 Broadband service providers own small business size standards, for to estimate more accurately the number (‘‘BSPs’’) are currently the only the purpose of cable rate regulation. of cable system operators that would significant holders of OVS certifications Under the Commission’s rules, a ‘‘small qualify as small under this size or local OVS franchises.263 The cable company’’ is one serving 400,000 standard. Commission does not have financial or 248 or fewer subscribers, nationwide. 70. Open Video Systems. The open employment information regarding the Industry data indicate that, of 1,076 video system (‘‘OVS’’) framework was entities authorized to provide OVS, cable operators nationwide, all but established in 1996, and is one of four some of which may not yet be eleven are small under this size statutorily recognized options for the operational. Thus, again, at least some 249 standard. In addition, under the provision of video programming of the OVS operators may qualify as Commission’s rules, a ‘‘small system’’ is services by local exchange carriers.256 small entities. a cable system serving 15,000 or fewer The OVS framework provides 71. Cable Television Relay Service. 250 subscribers. Industry data indicate opportunities for the distribution of This service includes transmitters that, of 6,635 systems nationwide, 5,802 video programming other than through generally used to relay cable systems have under 10,000 subscribers, cable systems. Because OVS operators programming within cable television and an additional 302 systems have 257 system distribution systems. This cable 251 provide subscription services, OVS 10,000–19,999 subscribers. Thus, falls within the SBA small business size service is defined within the broad under this second size standard, most standard covering cable services, which economic census category of Wired cable systems are small. is ‘‘Wired Telecommunications Telecommunications Carriers; that 69. Cable System Operators. The category is defined as follows: ‘‘This Carriers.’’ 258 The SBA has developed a Communications Act of 1934, as industry comprises establishments small business size standard for this amended, also contains a size standard primarily engaged in operating and/or category, which is: All such firms for small cable system operators, which providing access to transmission having 1,500 or fewer employees. To is ‘‘a cable operator that, directly or facilities and infrastructure that they gauge small business prevalence for through an affiliate, serves in the own and/or lease for the transmission of such services we must, however, use aggregate fewer than 1 percent of all voice, data, text, sound, and video using current census data that are based on subscribers in the United States and is wired telecommunications networks. the previous category of Cable and not affiliated with any entity or entities Transmission facilities may be based on Other Program Distribution and its whose gross annual revenues in the a single technology or a combination of associated size standard; that size aggregate exceed $250,000,000.’’ 252 The technologies.’’ 264 The SBA has Commission has determined that an standard was: All such firms having developed a small business size operator serving fewer than 677,000 $13.5 million or less in annual 259 standard for this category, which is: All subscribers shall be deemed a small receipts. According to Census Bureau such firms having 1,500 or fewer operator, if its annual revenues, when data for 2002, there were a total of 1,191 employees. To gauge small business combined with the total annual firms in this previous category that prevalence for cable services we must, revenues of all its affiliates, do not however, use current census data that 253 47 CFR 76.901(f); see Public Notice, FCC are based on the previous category of Announces New Subscriber Count for the Definition 246 U.S. Census Bureau, 2002 Economic Census, of Small Cable Operator, DA 01–158 (Cable Cable and Other Program Distribution Subject Series: Information, Table 4, Receipts Size and its associated size standard; that of Firms for the United States: 2002, NAICS code Services Bureau, Jan. 24, 2001). 517510 (issued November 2005). 254 These data are derived from: R.R. Bowker, size standard was: All such firms having 247 Id. An additional 61 firms had annual receipts Broadcasting & Cable Yearbook 2006, ‘‘Top 25 $13.5 million or less in annual of $25 million or more. Cable/Satellite Operators,’’ pages A–8 & C–2 (data receipts.265 According to Census Bureau current as of June 30, 2005); Warren 248 47 CFR 76.901(e). The Commission data for 2002, there were a total of 1,191 determined that this size standard equates Communications News, Television & Cable approximately to a size standard of $100 million or Factbook 2006, ‘‘Ownership of Cable Systems in the firms in this previous category that less in annual revenues. Implementation of Sections United States,’’ pages D–1805 to D–1857. of the 1992 Cable Act: Rate Regulation, Sixth Report 255 The Commission does receive such 260 U.S. Census Bureau, 2002 Economic Census, and Order and Eleventh Order on Reconsideration, information on a case-by-case basis if a cable Subject Series: Information, Table 4, Receipts Size 10 FCC Rcd 7393, 7408 (1995). operator appeals a local franchise authority’s of Firms for the United States: 2002, NAICS code 249 These data are derived from: R.R. Bowker, finding that the operator does not qualify as a small 517510 (issued November 2005). Broadcasting & Cable Yearbook 2006, ‘‘Top 25 cable operator pursuant to section 76.901(f) of the 261 Id. An additional 61 firms had annual receipts Cable/Satellite Operators,’’ pages A–8 & C–2 (data Commission’s rules. See 47 CFR 76.909(b). of $25 million or more. current as of June 30, 2005); Warren 256 47 U.S.C. 571(a)(3)–(4). See Annual 262 A list of OVS certifications may be found at Communications News, Television & Cable Assessment of the Status of Competition in the http://www.fcc.gov/mb/ovs/csovscer.html. Factbook 2006, ‘‘Ownership of Cable Systems in the Market for the Delivery of Video Programming, 263 See Thirteenth Annual Cable Competition United States,’’ pages D–1805 to D–1857. Thirteenth Annual Report, 24 FCC Rcd 542, 606 Report, 24 FCC Rcd at 606–07 para. 135. BSPs are 250 47 CFR 76.901(c). para. 135 (2009) (‘‘Thirteenth Annual Cable newer firms that are building state-of-the-art, 251 Warren Communications News, Television & Competition Report’’). facilities-based networks to provide video, voice, Cable Factbook 2008, ‘‘U.S. Cable Systems by 257 See 47 U.S.C. 573. and data services over a single network. Subscriber Size,’’ page F–2 (data current as of Oct. 258 U.S. Census Bureau, 2007 NAICS Definitions, 264 U.S. Census Bureau, 2007 NAICS Definitions, 2007). The data do not include 851 systems for ‘‘517110 Wired Telecommunications Carriers’’; ‘‘517110 Wired Telecommunications Carriers’’ which classifying data were not available. http://www.census.gov/naics/2007/def/ (partial definition); http://www.census.gov/naics/ 252 47 U.S.C. 543(m)(2); see 47 CFR 76.901(f) & ND517110.HTM#N517110. 2007/def/ND517110.HTM#N517110. nn. 1–3. 259 13 CFR 121.201, NAICS code 517110. 265 13 CFR 121.201, NAICS code 517110.

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operated for the entire year.266 Of this noncommercial capacity; these licensees Service (‘‘R/C’’), Family Radio Service total, 1,087 firms had annual receipts of are not small entities. (‘‘FRS’’), Wireless Medical Telemetry under $10 million, and 43 firms had 74. Aviation and Marine Services. Service (‘‘WMTS’’), Medical Implant receipts of $10 million or more but less Small businesses in the aviation and Communications Service (‘‘MICS’’), Low than $25 million.267 Thus, the majority marine radio services use a very high Power Radio Service (‘‘LPRS’’), and of these firms can be considered small. frequency (‘‘VHF’’) marine or aircraft Multi-Use Radio Service (‘‘MURS’’).275 72. Multichannel Video Distribution radio and, as appropriate, an emergency There are a variety of methods used to and Data Service. MVDDS is a terrestrial position-indicating radio beacon (and/or license the spectrum in these rule parts, fixed microwave service operating in radar) or an emergency locator from licensing by rule, to conditioning the 12.2–12.7 GHz band. The transmitter. The Commission has not operation on successful completion of a Commission adopted criteria for developed a small business size required test, to site-based licensing, to defining three groups of small standard specifically applicable to these geographic area licensing. Under the businesses for purposes of determining small businesses. For purposes of this RFA, the Commission is required to their eligibility for special provisions analysis, the Commission uses the SBA make a determination of which small such as bidding credits. It defines a very small business size standard for the entities are directly affected by the rules small business as an entity with average category Wireless Telecommunications being proposed. Since all such entities annual gross revenues not exceeding $3 Carriers (except Satellite), which is are wireless, we apply the definition of million for the preceding three years; a 1,500 or fewer employees.272 Most Wireless Telecommunications Carriers small business as an entity with average applicants for recreational licenses are (except Satellite), pursuant to which a annual gross revenues not exceeding individuals. Approximately 581,000 small entity is defined as employing $15 million for the preceding three ship station licensees and 131,000 1,500 or fewer persons.276 Many of the years; and an entrepreneur as an entity aircraft station licensees operate licensees in these services are with average annual gross revenues not domestically and are not subject to the individuals, and thus are not small exceeding $40 million for the preceding radio carriage requirements of any entities. In addition, due to the mostly three years.268 These definitions were statute or treaty. For purposes of our unlicensed and shared nature of the approved by the SBA.269 On January 27, evaluations in this analysis, we estimate spectrum utilized in many of these 2004, the Commission completed an that there are up to approximately services, the Commission lacks direct auction of 214 MVDDS licenses 712,000 licensees that are small information upon which to base an (Auction No. 53). In this auction, ten businesses (or individuals) under the estimation of the number of small winning bidders won a total of 192 SBA standard. In addition, between entities under an SBA definition that MVDDS licenses.270 Eight of the ten December 3, 1998 and December 14, might be directly affected by our action. winning bidders claimed small business 1998, the Commission held an auction 76. Public Safety Radio Services. status and won 144 of the licenses. The of 42 VHF Public Coast licenses in the Public Safety radio services include Commission also held an auction of 157.1875–157.4500 MHz (ship transmit) police, fire, local government, forestry MVDDS licenses on December 7, 2005 and 161.775–162.0125 MHz (coast conservation, highway maintenance, (Auction 63). Of the three winning transmit) bands. For VHF Public Coast and emergency medical services.277 bidders who won 22 licenses, two licenses, the Commission defines a winning bidders, winning 21 of the ‘‘small’’ business as an entity that, 275 The Citizens Band Radio Service, General licenses, claimed small business together with controlling interests and Mobile Radio Service, Radio Control Radio Service, status.271 affiliates, has average gross revenues for Family Radio Service, Wireless Medical Telemetry Service, Medical Implant Communications Service, 73. Amateur Radio Service. These the preceding three years not to exceed Low Power Radio Service, and Multi-Use Radio licensees are held by individuals in a $15 million. In addition, a ‘‘very small’’ Service are governed by Subpart D, Subpart A, business is defined as an entity that, Subpart C, Subpart B, Subpart H, Subpart I, Subpart 266 U.S. Census Bureau, 2002 Economic Census, together with controlling interests and G, and Subpart J, respectively, of Part 95 of the Subject Series: Information, Table 4, Receipts Size affiliates, has average gross revenues for Commission’s rules. See generally 47 CFR Part 95. of Firms for the United States: 2002, NAICS code 276 13 CFR 121.201, NAICS Code 517210. 517510 (issued November 2005). the preceding three years not to exceed 277 With the exception of the special emergency 267 Id. An additional 61 firms had annual receipts $3 million.273 There are approximately service, these services are governed by Subpart B of $25 million or more. 10,672 licensees in the Marine Coast of part 90 of the Commission’s rules, 47 CFR 90.15– 268 Amendment of Parts 2 and 25 of the Service, and the Commission estimates 90.27. The police service includes approximately Commission’s Rules to Permit Operation of NGSO 27,000 licensees that serve state, county, and FSS Systems Co-Frequency with GSO and that almost all of them qualify as municipal enforcement through telephony (voice), Terrestrial Systems in the Ku-Band Frequency ‘‘small’’ businesses under the above telegraphy (code) and teletype and facsimile Range; Amendment of the Commission’s Rules to special small business size standards. (printed material). The fire radio service includes Authorize Subsidiary Terrestrial Use of the 12.2– 75. Personal Radio Services. Personal approximately 23,000 licensees comprised of 12.7 GHz Band by Direct Broadcast Satellite radio services provide short-range, low private volunteer or professional fire companies as Licenses and their Affiliates; and Applications of well as units under governmental control. The local Broadwave USA, PDC Broadband Corporation, and power radio for personal government service that is presently comprised of Satellite Receivers, Ltd. to provide A Fixed Service communications, radio signaling, and approximately 41,000 licensees that are state, in the 12.2–12.7 GHz Band, ET Docket No. 98–206, business communications not provided county, or municipal entities that use the radio for Memorandum Opinion and Order and Second for in other services. The Personal Radio official purposes not covered by other public safety Report and Order, 17 FCC Rcd 9614, 9711, para. 252 services. There are approximately 7,000 licensees (2002). Services include spectrum licensed within the forestry service which is comprised of 269 See Letter from Hector V. Barreto, under Part 95 of our rules.274 These licensees from state departments of conservation Administrator, U.S. Small Business Administration, services include Citizen Band Radio and private forest organizations who set up to Margaret W. Wiener, Chief, Auctions and Service (‘‘CB’’), General Mobile Radio communications networks among fire lookout Industry Analysis Division, WTB, FCC (Feb.13, towers and ground crews. The approximately 9,000 2002). Service (‘‘GMRS’’), Radio Control Radio state and local governments are licensed to highway 270 See ‘‘Multichannel Video Distribution and maintenance service provide emergency and Data Service Auction Closes,’’ Public Notice, 19 272 13 CFR 121.201, NAICS code 517210. routine communications to aid other public safety FCC Rcd 1834 (2004). 273 Amendment of the Commission’s Rules services to keep main roads safe for vehicular 271 See ‘‘Auction of Multichannel Video Concerning Maritime Communications, Third traffic. The approximately 1,000 licensees in the Distribution and Data Service Licenses Closes; Report and Order and Memorandum Opinion and Emergency Medical Radio Service (‘‘EMRS’’) use Winning Bidders Announced for Auction No. 63,’’ Order, 13 FCC Rcd 19853 (1998). the 39 channels allocated to this service for Public Notice, 20 FCC Rcd 19807 (2005). 274 47 CFR Part 90. Continued

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There are a total of approximately $24,999,999.286 Consequently, we to the Commission in compliance with 127,540 licensees in these services. estimate that the majority of ISP firms the Form 499–A, Telecommunications Governmental entities 278 as well as are small entities. Reporting Worksheet. Compliance with private businesses comprise the 78. The ISP industry has changed the fee schedule will require some licensees for these services. All dramatically since 2002. The 2002 data licensees to tabulate the number of units governmental entities with populations cited above may therefore include (e.g., cellular telephones, pagers, cable of less than 50,000 fall within the entities that no longer provide Internet TV subscribers) they have in service. definition of a small entity.279 access service and may exclude entities Licensees ordinarily will keep a list of the number of units they have in service 77. Internet Service Providers. The that now provide such service. To ensure that this (IRFA/FRFA) describes as part of their normal business 2007 Economic Census places these the universe of small entities that our practices. No additional outside firms, whose services might include action might affect, we discuss in turn professional skills are required to voice over Internet protocol (VoIP), in several different types of entities that submit a regulatory fee payment, and it either of two categories, depending on might be providing Internet access can be completed by the employees whether the service is provided over the service. responsible for an entity’s business provider’s own telecommunications 79. We note that, although we have no records. connections (e.g. cable and DSL, ISPs), specific information on the number of 81. As discussed previously in this or over client-supplied small entities that provide Internet Notice of Proposed Rulemaking, the telecommunications connections (e.g. access service over unlicensed Commission concluded in its FY 2009 dial-up ISPs). The former are within the spectrum, we include these entities in regulatory fee cycle that licensees filing category of Wired Telecommunications our IRFA/FRFA. their annual regulatory fee payments Carriers,280 which has an SBA small must begin the process by entering the business size standard of 1,500 or fewer IX. Description of Projected Reporting, Commission’s Fee Filer system with a employees.281 The latter are within the Recordkeeping and Other Compliance valid FRN and password. In some category of All Other Requirements instances, it will be necessary to use a Telecommunications,282 which has a 80. With certain exceptions, the specific FRN and password that is size standard of annual receipts of $25 Commission’s Schedule of Regulatory linked to a particular regulatory fee bill. million or less.283 The most current Fees applies to all Commission Going forward, the submission of Census Bureau data for all such firms, licensees and regulatees. Most licensees hardcopy Form 159 documents will not however, are the 2002 data for the will be required to count the number of be permitted for making a regulatory fee previous census category called Internet licenses or call signs authorized, and payment during the regulatory fee cycle. Service Providers.284 That category had pay a regulatory fee based on the By requiring licensees to use Fee Filer a small business size standard of $21 number of licenses or call signs.287 In to begin the regulatory fee payment million or less in annual receipts, which some instances, licensees may decide to process, errors resulting from illegible was revised in late 2005 to $23 million. submit an FCC Form 159 Remittance handwriting on hardcopy Form 159’s The 2002 data show that there were Advice. Interstate telephone service will be reduced, and the Commission 2,529 such firms that operated for the providers must compute their annual will be able to create an electronic entire year.285 Of those, 2,437 firms had regulatory fee based on their interstate record of licensee payment attributes annual receipts of under $10 million, and international end-user revenue that are more easily traceable than and an additional 47 firms had receipts using information they already supply payments that were previously mailed of between $10 million and in with a hardcopy Form 159. 286 An additional 45 firms had receipts of $25 82. Licensees and regulatees are emergency medical service communications related million or more. advised that failure to submit the to the delivery of emergency medical treatment. 47 287 See 47 CFR 1.1162 for the general exemptions required regulatory fee in a timely CFR 90.15 through 90.27. The approximately 20,000 from regulatory fees. E.g., Amateur radio licensees manner will subject the licensee or licensees in the special emergency service include (except applicants for vanity call signs) and medical services, rescue organizations, operators in other non-licensed services (e.g., regulatee to a late payment penalty of 25 veterinarians, handicapped persons, disaster relief Personal Radio, part 15, ship and aircraft). percent in addition to the required organizations, school buses, beach patrols, Governments and non-profit (exempt under section fee.288 If payment is not received, new establishments in isolated areas, communications 501(c) of the Internal Revenue Code) entities are or pending applications may be standby facilities, and emergency repair of public exempt from payment of regulatory fees and need communications facilities. 47 CFR 90.33 through not submit payment. Non-commercial educational dismissed, and existing authorizations 90.55. broadcast licensees are exempt from regulatory fees may be subject to rescission.289 Further, 278 47 CFR 1.1162. as are licensees of auxiliary broadcast services such in accordance with the DCIA, federal 279 5 U.S.C. 601(5). as low power auxiliary stations, television auxiliary agencies may bar a person or entity from 280 U.S. Census Bureau, 2007 NAICS Definitions, service stations, remote pickup stations and aural broadcast auxiliary stations where such licenses are obtaining a federal loan or loan ‘‘517110 Wired Telecommunications Carriers’’, insurance guarantee if that person or http://www.census.gov/naics/2007/def/ used in conjunction with commonly owned non- ND517110.HTM#N517110. commercial educational stations. Emergency Alert entity fails to pay a delinquent debt System licenses for auxiliary service facilities are 290 281 13 CFR 121.201, NAICS code 517110 (updated owed to any federal agency. also exempt as are instructional television fixed for inflation in 2008). service licensees. Regulatory fees are automatically Nonpayment of regulatory fees is a debt 282 U.S. Census Bureau, 2007 NAICS Definitions, waived for the licensee of any translator station owed to the United States pursuant to ‘‘517919 All Other Telecommunications’’; http:// that: (1) Is not licensed to, in whole or in part, and 31 U.S.C. 3711 et seq., and the DCIA. www.census.gov/naics/2007/def/ does not have common ownership with, the Appropriate enforcement measures, as ND517919.HTM#N517919. licensee of a commercial broadcast station; (2) does 283 13 CFR 121.201, NAICS code 517919 (updated not derive income from advertising; and (3) is well as administrative and judicial for inflation in 2008). dependent on subscriptions or contributions from remedies, may be exercised by the 284 U.S. Census Bureau, ‘‘2002 NAICS Definitions, members of the community served for support. Commission. Debts owed to the ‘‘518111 Internet Service Providers’’; http:// Receive only earth station permittees are exempt Commission may result in a person or www.census.gov/eped/naics02/def/NDEF518.HTM. from payment of regulatory fees. A regulatee will 285 U.S. Census Bureau, 2002 Economic Census, be relieved of its fee payment requirement if its Subject Series: Information, ‘‘Establishment and total fee due, including all categories of fees for 288 47 CFR 1.1164. Firm Size (Including Legal Form of Organization),’’ which payment is due by the entity, amounts to less 289 47 CFR 1.1164(c). Table 4, NAICS code 518111 (issued Nov. 2005). than $10. 290 Public Law 104–134, 110 Stat. 1321 (1996).

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entity being denied a federal loan or XI. Federal Rules That May Duplicate, obsolete and no longer exist in the loan guarantee pending before another Overlap, or Conflict With the Proposed authoritative GAAP (the ASC). DoD, federal agency until such obligations are Rules GSA, and NASA, therefore, propose 291 paid. None. replacing the current references with 83. The Commission’s rules currently replacement criteria for determining the XII. Ordering Clauses provide for relief in exceptional allowability of the transition obligation, when converting from pay-as-you-go circumstances. Persons or entities may 38. Accordingly, it is ordered that, accounting for postretirement benefits request a waiver, reduction or deferment pursuant to Sections 4(i) and (j), 9, and (PRBs) to an accrual method of of payment of the regulatory fee.292 303(r) of the Communications Act of 1934, as amended, 47 U.S.C. 154(i), accounting for the purposes of However, timely submission of the government contract cost accounting. required regulatory fee must accompany 154(j), 159, and 303(r), this Notice of DATES: Interested parties should submit requests for waivers or reductions. This Proposed Rulemaking is hereby written comments to the Regulatory will avoid any late payment penalty if adopted. Secretariat at one of the addressees the request is denied. The fee will be 39. It is further ordered that the Commission’s Consumer and shown below on or before July 16, 2012 refunded if the request is granted. In to be considered in the formation of the exceptional and compelling instances Governmental Affairs Bureau, Reference Information Center, shall send a copy of final rule. (e.g. where payment of the regulatory this Notice of Proposed Rulemaking, ADDRESSES: Submit comments in fee along with the waiver or reduction including the Initial Regulatory response to FAR Case 2011–019 by any request could result in reduction of Flexibility Analysis, to the Chief of the following methods: service to a community or other Counsel for Advocacy of the U.S. Small • Regulations.gov: http:// financial hardship to the licensee), the Business Administration. www.regulations.gov. Submit comments Commission will defer payment in Federal Communications Commission. via the Federal eRulemaking portal by response to a request filed with the searching ‘‘FAR Case 2011–019’’. Select Marlene H. Dortch, appropriate supporting documentation. the link ‘‘Submit a Comment’’ that Secretary. corresponds with ‘‘FAR Case 2011– X. Steps Taken To Minimize Significant [FR Doc. 2012–11890 Filed 5–16–12; 8:45 am] Economic Impact on Small Entities, and 019.’’ Follow the instructions provided BILLING CODE 6712–01–P Significant Alternatives Considered at the ‘‘Submit a Comment’’ screen. Please include your name, company 84. The RFA requires an agency to name (if any), and ‘‘FAR Case 2011– describe any significant alternatives that DEPARTMENT OF DEFENSE 019’’ on your attached document. it has considered in reaching its • Fax: 202–501–4067. GENERAL SERVICES • approach, which may include the Mail: General Services ADMINISTRATION following four alternatives, among Administration, Regulatory Secretariat others: (1) the establishment of differing (MVCB), ATTN: Hada Flowers, 1275 NATIONAL AERONAUTICS AND compliance or reporting requirements or First Street NE., 7th Floor, Washington, SPACE ADMINISTRATION timetables that take into account the DC 20417. resources available to small entities; (2) Instructions: Please submit comments 48 CFR Part 31 only and cite FAR Case 2011–019, in all the clarification, consolidation, or correspondence related to this case. All simplification of compliance or [FAR Case 2011–019; Docket 2011–0019; comments received will be posted reporting requirements under the rule Sequence 1] without change to http:// for small entities; (3) the use of RIN 9000–AM23 www.regulations.gov, including any performance, rather than design, personal and/or business confidential standards; and (4) an exemption from Federal Acquisition Regulation; information provided. coverage of the rule, or any part thereof, Updated Postretirement Benefit (PRB) FOR FURTHER INFORMATION CONTACT: Mr. for small entities.293 In this NPRM, we References Edward N. Chambers, Procurement seek comment on alternatives that might AGENCY: Analyst, at 202–501–3221 for simplify our fee procedures or otherwise Department of Defense (DoD), clarification of content. For information benefit filers, including small entities, General Services Administration (GSA), and National Aeronautics and Space pertaining to status or publication while remaining consistent with our Administration (NASA). schedules, contact the Regulatory statutory responsibilities in this ACTION: Proposed rule. Secretariat at 202–501–4755. Please cite proceeding. FAR Case 2011–019. 85. Several categories of licensees and SUMMARY: DoD, GSA, and NASA are SUPPLEMENTARY INFORMATION: regulatees are exempt from payment of proposing to amend the Federal regulatory fees. Also, waiver procedures Acquisition Regulation (FAR) to remove I. Background provide regulatees, including small references to specific paragraphs in an In June of 2009, the FASB announced, entity regulatees, relief in exceptional accounting standard that were deleted in its Statement Number 168, that circumstances. We note that small in the Financial Accounting Standards effective for financial statements issued entities should be assisted by our Board’s (FASB’s) Accounting Standards for interim and annual periods ending implementation of the Fee Filer Codification (ASC) of Generally after September 15, 2009, the FASB ASC program, and that we have continued Accepted Accounting Principles would become the source of our practice of exempting fees whose (GAAP). The immediate and delayed authoritative U.S. GAAP recognized by total sum owed is less than $10.00. recognition procedures for the initial the FASB to be applied by application transition obligation in nongovernmental entities. The FASB 291 31 U.S.C. 7701(c)(2)(B). paragraphs 111, 112, and 113, stated that this codification in the ASC 292 47 CFR 1.1166. respectively, of superseded Financial supersedes existing references in U.S. 293 5 U.S.C. 603. Accounting Standard (FAS) 106, are GAAP.

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On February 16, 2011, DoD, GSA, and method of accounting for the purposes Accounting Standards Board’s (FASB’s) NASA issued a proposed rule under of government contract cost accounting. Accounting Standards Codification FAR Case 2010–005, published in the DoD, GSA, and NASA propose (ASC) of Generally Accepted Federal Register at 76 FR 8989, which replacing the current reference to the Accounting Principles (GAAP) and replaced the superseded GAAP recognition of the transition method in replaces these references with explicit references for three sections of the FAR, accordance with provisions of GAAP criteria that generally replicates the and also stated that the reference to that no longer exist with explicit criteria former GAAP methodology. Therefore, ‘‘prior GAAP’’ in FAR 31.205– that generally replicates the former an Initial Regulatory Flexibility 6(o)(2)(iii)(A)(1) would be handled in a GAAP methodology. Analysis has not been performed. DoD, separate case. This proposed rule is the DoD, GSA, and NASA acknowledge GSA, and NASA invite comments from separate case, FAR Case 2011–019. that contractors have in the past and small business concerns and other The superseded GAAP provisions in may continue to propose a change to interested parties on the expected FAR 31.205–6(o)(2)(iii)(A)(1) reference their government contract cost impact of this rule on small entities. the description of ‘‘transition accounting practice whereby the ‘‘pay- DoD, GSA, and NASA will also obligation’’ in paragraph 110 of FAS 106 as-you-go’’ method is replaced by the consider comments from small entities and the ‘‘delayed recognition ‘‘accrual’’ method and this may give rise concerning the existing regulations in methodology’’ in paragraphs 112 and to a transition obligation that is similar subparts affected by this proposed rule 113, also of FAS 106. in its nature, but not its amount, to the in accordance with 5 U.S.C. 610. These references to FAS 106 in the initial application transition obligation Interested parties must submit such cost principle were added in FAR Case that arose when (now superseded) FAS comments separately and should cite 5 91–42, published in the Federal 106 first became applicable in the early U.S.C. 610 (FAR Case 2011–019) in Register at 56 FR 41738 on August 22, 1990’s for financial reporting purposes. correspondence. 1991. At the time, DoD, GSA, and NASA Consequently, DoD, GSA, and NASA decided not to allow contractors to are removing the obsolete references to IV. Paperwork Reduction Act claim the entire ‘‘transition obligation’’ paragraphs 110, 112, and 113 in FAR The proposed rule does not contain associated with their initial application 31.205–6(o)(2)(iii)(A)(1). The revision is any information collection requirements of FAS 106 as an allowable cost in intended to allow a general continuation that require the approval of the Office of accordance with the ‘‘immediate of the obsolete GAAP delayed Management and Budget under the recognition’’ procedure (superseded recognition method for contractors that Paperwork Reduction Act (44 U.S.C. paragraph 111) in FAS 106. (The move from a pay-as-you-go method of chapter 35). transition obligation associated with accounting to an accrual basis of initial application of FAS 106 is referred accounting for PRB costs for government List of Subjects in 48 CFR Part 31 to hereafter as the ‘‘initial application contract cost accounting. Government procurement. transition obligation.’’) Therefore, DoD, GSA, and NASA disallowed costs for II. Executive Orders 12866 and 13563 Dated: May 14, 2012. the amortization of the initial Executive Orders (E.O.s) 12866 and Laura Auletta, application transition obligation in 13563 direct agencies to assess all costs Director, Office of Governmentwide excess of the amount amortized using and benefits of available regulatory Acquisition Policy, Office of Acquisition the delayed recognition method alternatives and, if regulation is Policy, Office of Governmentwide Policy. procedure in paragraphs 112 and 113 of necessary, to select regulatory Therefore, DoD, GSA, and NASA FAS 106. approaches that maximize net benefits propose amending 48 CFR part 31 as set DoD, GSA, and NASA note that the (including potential economic, forth below: immediate and delayed recognition environmental, public health and safety procedures for the initial application effects, distributive impacts, and PART 31—CONTRACT COST transition obligation in paragraphs 111, equity). E.O. 13563 emphasizes the PRINCIPLES AND PROCEDURES 112, and 113, respectively, of importance of quantifying both costs 1. The authority citation for 48 CFR superseded FAS 106, are obsolete and benefits, of reducing costs, of part 31 continues to read as follows: because FAS 106 no longer exists in the harmonizing rules, and of promoting authoritative GAAP (the ASC). When flexibility. This is not a significant Authority: 40 U.S.C. 121(c); 10 U.S.C. the FASB recodified FAS 106 into the regulatory action and, therefore, was not chapter 137; and 42 U.S.C. 2473(c). ASC, paragraphs 111 through 114 were subject to review under section 6(b) of 2. Amend section 31.205–6 by not included because public companies E.O. 12866, Regulatory Planning and revising the introductory text of recognized the transition obligation in Review, dated September 30, 1993. This paragraph (o)(2)(iii)(A) and paragraph the first fiscal period beginning after rule is not a major rule under 5 U.S.C. (o)(2)(iii)(A)(1) to read as follows: December 15, 1994, or shortly thereafter 804. if exempted from the initial effective 31.205–6 Compensation for personal date. While the existing provision at III. Regulatory Flexibility Act services. FAR 31.205–6(o)(2)(iii)(A)(1) remains in Department of Defense (DoD), General * * * * * force because the referenced paragraphs Services Administration (GSA), and (o) * * * can be found in the historical National Aeronautics and Space (2) * * * accounting literature, the passage of Administration (NASA) do not expect (iii) * * * time raises concerns that these this proposed rule to have a significant (A) Be measured and assigned in paragraphs may become less readily economic impact on a substantial accordance with one of the following available. DoD, GSA, and NASA number of small entities within the two methods described under conclude, therefore, that replacement meaning of the Regulatory Flexibility paragraphs (o)(2)(iii)(A)(1) or criteria are needed for determining the Act, 5 U.S.C. 601, et seq., because the (o)(2)(iii)(A)(2) of this subsection: allowability of the transition obligation, rule only removes references to specific (1) Generally accepted accounting when converting from pay-as-you-go paragraphs in an accounting standard principles. However, transitions from accounting for PRBs to an accrual that were deleted in the Financial the pay-as-you-go method to the accrual

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accounting method must be handled ACTION: Notice of proposed rulemaking Washington, DC 20590 (telephone 202– according to paragraphs (NPRM). 493–6060), [email protected]. (o)(2)(iii)(A)(1)(i) through (iii) of this SUPPLEMENTARY INFORMATION: section: SUMMARY: Since 1985, FRA has (i) In the year of transition from the conducted post-accident toxicological Background testing (post-accident testing) on blood, pay-as-you-go method to accrual Since 1985, as part of its accident urine, and, if an employee is deceased, accounting for purposes of government investigation program, FRA has tissue samples from railroad employees contract cost accounting, the transition conducted post-accident alcohol and involved in serious train accidents. If an obligation shall be the excess of the drug tests on railroad employees who accident qualifies for post-accident accumulated PRB obligation over the have been involved in serious train testing, FRA routinely conducts tests for fair value of plan assets determined in accidents (50 FR 31508, August 2, alcohol, marijuana, cocaine, accordance with subparagraph (E) of 1985). If an accident meets FRA’s phencyclidine (PCP), and certain this section; the fair value must be criteria for post-accident testing (see 49 amphetamines, opiates, barbiturates, reduced by the prepayment credit as CFR 219.201), FRA conducts tests for and benzodiazepines. FRA is proposing determined in accordance with alcohol and for certain drugs classified to add certain potentially impairing subparagraph (o)(2)(iii)(F) of this as controlled substances under the non-controlled substances to its subsection. Controlled Substances Act (CSA), Title standard post-accident testing panel (ii) PRB cost attributable to the II of the Comprehensive Drug Abuse because FRA’s research indicates that transition obligation assigned to the Prevention Substances Act of 1970 use of prescription and over-the-counter current year that is in excess of the (CSA, 21 U.S.C. 801 et seq.). Controlled (OTC) drugs, most of which are non- amount assignable to accounting substances are drugs or chemicals that controlled substances, is prevalent periods on the basis of a straight line are prohibited or strictly regulated among railroad employees. amortization of the transition obligation because of their potential for abuse or over the average remaining working DATES: Submit comments on or before addiction. The Drug Enforcement lives of active employees covered by the July 16, 2012. Administration (DEA), which is PRB plan or a 20-year period, whichever ADDRESSES: Comments: Comments primarily responsible for enforcing the period is longer, is unallowable. related to Docket No. FRA–2010–0155 CSA, oversees the classification of However, if the plan is comprised of may be submitted by any of the controlled substances into five inactive participants only, the PRB cost following methods: schedules. Schedule I contains illicit attributable to the transition obligation • Online: Comments should be filed drugs, such as marijuana and heroin, assigned to the current year that is in at the Federal eRulemaking Portal, which have no legitimate medical use excess of the amount assignable to http://www.regulations.gov. Follow the under Federal law. Schedules II–V accounting periods on a straight line online instructions for submitting contain legal drugs which are available amortization of the transition obligation comments. only by prescription because of their over the average future life expectancy • Fax: 202–493–2251. potential for abuse. Currently, FRA of the participants is unallowable. • Mail: Docket Management Facility, routinely conducts post-accident tests (iii) For a plan that transitioned from U.S. DOT, 1200 New Jersey Avenue SE., for the following drugs: marijuana, pay-as-you-go to accrual accounting for W12–140, Washington, DC 20590. cocaine, phencyclidine (PCP), and government contract cost accounting • Hand Delivery: Room W12–140 on certain opiates, amphetamines, prior to (Date of Final Rule), the the Ground level of the West Building, barbiturates, and benzodiazepines. unallowable amount of PRB cost 1200 New Jersey Avenue SE., As detailed below, FRA research attributable to the transition obligation Washington, DC between 9 a.m. and indicates that prescription and OTC amortization shall continue to be based 5 p.m. Monday through Friday, except drug use has become prevalent among on the cost principle in effect at the time federal holidays. railroad employees. For this reason FRA of the transition until the original Instructions: All submissions must is proposing to add certain non- transition obligation schedule is fully include the agency name and docket controlled substances to its standard amortized. number or Regulatory Identification post-accident testing program, which * * * * * Number (RIN) for this rulemaking. Note currently routinely tests only for alcohol [FR Doc. 2012–11959 Filed 5–16–12; 8:45 am] that all comments received will be and controlled substances. At this time, BILLING CODE 6820–EP–P posted without change to http:// FRA intends to add two types of non- www.regulations.gov including any controlled substances, tramadol (a personal information. Please see the synthetic opioid) and sedating DEPARTMENT OF TRANSPORTATION Privacy Act heading in the antihistamines. Publication of this ‘‘Supplementary Information’’ section of NPRM, however, in no way limits FRA’s Federal Railroad Administration this document for Privacy Act post-accident testing to the identified information related to any submitted substances or in any way restricts FRA’s 49 CFR Part 219 comments or materials. ability to make routine amendments to [Docket No. FRA–2010–0155] FOR FURTHER INFORMATION CONTACT: For its standard post-accident testing panel program and technical issues, contact without prior notice. Furthermore, in RIN 2130–AC24 Lamar Allen, Alcohol and Drug Program addition to its standard post-accident Control of Alcohol and Drug Use: Manager, Office of Safety Enforcement, testing panel, FRA always has the Addition of Post-Accident Mail Stop 25, FRA, 1200 New Jersey ability to test for ‘‘other impairing Toxicological Testing for Non- Avenue SE., Washington, DC 20590 substances specified by FRA as Controlled Substances (telephone 202–493–6313), necessary to the particular accident [email protected]. For legal issues, investigation.’’ See 49 CFR 219.211(a). AGENCY: Federal Railroad contact Patricia V. Sun, Trial Attorney, This flexibility is essential, since it Administration (FRA), Department of Office of Chief Counsel, Mail Stop 10, allows FRA to conduct post-accident Transportation (DOT) FRA, 1200 New Jersey Avenue SE., tests for any substance (e.g., carbon

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monoxide) that its preliminary to complete FRA surveys on their recent Services (HHS) guidelines apply to post- investigation shows may have played a prescription and OTC drug use. Of the accident testing procedures and role in an accident. 294 human-factor accidents surveyed, protocols. See 49 CFR 40.1. All post- FRA is proposing to add tests for only 20 percent had no employee self- accident tests are conducted on behalf certain non-controlled substances to reports of drug use (this 20 percent also of FRA by a single laboratory (FRA is respond to the significant rise in included accidents where employees revising appendix B to 49 CFR Part 219 prescription and OTC drug use in the would not complete questionnaires or to designate Quest Diagnostics as its more than 25 years since FRA began could not be located). In the 80 percent post-accident testing laboratory) in post-accident testing. In 2006, an of surveyed accidents where accordance with FRA specifications. ongoing telephone survey about the use prescription or OTC drug use, or both, FRA conducts compliance and quality of medications by U.S. adults found that had been self-reported, employees listed audits of the laboratory each quarter. 82 percent took at least one prescription a wide variety of generic and brand As explained above, FRA intends to or OTC drug, dietary supplement, or name drugs, with many employees add testing for two types of non- herbal remedy, each week. See Slone listing multiple prescription and OTC controlled substances (tramadol (a Epidemiology Center at Boston drugs, as well as dietary supplements synthetic opioid) and sedating University, Patterns of Medications Use and herbal preparations. antihistamines) to its standard post- in the United States (2006). Also in In 2005, FRA began a second research accident testing program to address the 2006, a study commissioned by the project that partially responded to one widespread use of prescription and OTC National Community Pharmacists in a series of recommendations to FRA drugs by railroad employees. Both Association (NCPA) found that up to 75 made by the National Transportation tramadol and the drugs in the sedating percent of Americans reported not Safety Board (NTSB) concerning the use antihistamine category have potential always taking their prescription of prescription and OTC drugs by safety- side effects that could impair an medication as directed, 49 percent sensitive employees. (The NTSB made employee’s cognitive abilities (such as reported forgetting to take a prescribed similar recommendations to DOT and the ability to stay awake and alert or the medication, 31 percent reported not other DOT agencies.) ability to recognize and take appropriate filling a prescription, 29 percent emergency action) or cause impairing reported stopping use of a medication R–00–004: Establish in coordination with conditions (such as dizziness, agitation, the U.S. Department of Transportation, the before its supply ran out, and 24 percent Federal Motor Carrier Safety Administration, and loss of coordination). These drugs reported taking less than the are discussed below: the Federal Transit Administration, and the • recommended dosage. See National U.S. Coast Guard, comprehensive Tramadol. Tramadol is a semi- Community Pharmacists Association, toxicological testing requirements for an synthetic opioid. Opioids can be natural Take as Directed: A Prescription Not appropriate sample of fatal highway, railroad, (e.g., codeine and morphine), semi- Followed (2006). Today, the Physician’s transit, and marine accidents to ensure the synthetic (e.g., oxycodone and Desk Reference contains over 13,000 identification of the role played by common hydromorphone), or wholly synthetic in prescription drugs, most of which are prescription and over-the-counter origin (e.g., methadone). All opioids, non-controlled substances. medications. Review and analyze the results regardless of origin, pose risks of In 1998, FRA first expressed concerns of such testing at intervals not to exceed 5 sedation, and can cause abuse and that § 219.103, which addresses the use years. dependence with prolonged use. of Schedule II–V controlled substances In this project, FRA re-tested a sample • Sedating antihistamines. This by safety-sensitive employees, may be of 150 frozen post-accident testing urine widely used category of drugs includes, too narrow to cover the use of specimens that had previously been but is not limited to, diphenhydramine, prescription and OTC drugs since most reported as negative for the substances chlorpheniramine, brompheniramine, of these drugs are not controlled in the agency’s standard post-accident and doxylamine. Sedating substances. To supplement § 219.103, drug testing panel. After redacting any antihistamines are used primarily to FRA issued Safety Advisory 98–3 identifying employee information, FRA treat allergy and cold symptoms, but (Advisory), Recommended practices for used a commercially available medical may also be used as sleep aids or as the safe use of prescription and over- professional drug testing panel to re-test treatment for allergic reactions such as the-counter drugs by safety-sensitive these specimens for commonly used itching and swelling. As their name railroad employees, which made prescription and OTC drugs with known implies, sedating antihistamines (as recommendations to railroads on how to risks of adverse side effects, such as opposed to non-sedating antihistamines handle prescription and OTC drug use pain relievers, anti-depressants, and such as loratadine) have a known by their safety-sensitive employees. See sedating antihistamines. Of the 150 re- tendency to cause drowsiness. Because 63 FR 71334, December 24, 1998. tested samples, 14 (9.3 percent) tested of this tendency, the manufacturer’s After issuing this Advisory, FRA positive for at least one potentially instructions on the packaging and initiated two projects to research impairing prescription or OTC drug. labeling of sedating antihistamines whether the prevalence of prescription These post-accident re-testing results caution against use while driving, drugs should be more closely evaluated confirmed those of FRA’s human-factor operating machinery, or performing and monitored as a possible safety accident survey, by also showing that tasks where alertness is required. concern in the rail industry. As detailed prescription and OTC drug use was Although these drugs are available at below, both projects found that prevalent among railroad employees. both prescription and OTC dosages, prescription and OTC drug use was sedating anithistamines are usually prevalent among railroad employees Proposed Addition of Tests for Non- taken as OTC drugs. involved in reportable accidents. Controlled Substances Adding testing for these types of non- In the first project, which lasted from Because FRA’s post-accident testing controlled substances to its post- April 2002 to April 2009, FRA asked program predates both DOT’s testing accident testing program will enable railroad employees who had been procedures (49 CFR part 40) and the FRA to detect a broader range of involved in human-factor accidents that Omnibus Transportation Employee potentially impairing drugs that may were reportable under FRA’s accident Testing Act of 1991, neither part 40 nor contribute to the cause or severity of reporting regulations at 49 CFR part 225 Department of Health and Human accidents. As FRA has done for the

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controlled substances in its standard Contents of Standard Post-Accident Section 219.13—Preemptive Effect post-accident panel, FRA would consult Testing Box FRA is proposing to remove this with forensic toxicologists to establish As mentioned above, FRA’s post- section from part 219. FRA believes that screening and confirmation limits and the preemption language in paragraph administrative cut-offs for these non- accident testing program has been in existence since 1985. FRA has received (a) of this section is unnecessary controlled substances. because 49 U.S.C. 20106 does not suggestions from railroad require additional Federal regulatory Although FRA is not proposing any representatives, collectors, and others provisions concerning a regulation’s change in its handling of post-accident on how to make the program’s preemptive effect. As stated in the test results for controlled substances in requirements easier to understand and accordance with 49 CFR 219.211, FRA Federalism Implications statement of follow. Although not directly related to this NPRM, part 219 could have is proposing to handle the post-accident the regulatory proposals in this NPRM, results for non-controlled substances preemptive effect by operation of law FRA is incorporating some of these under the Federal Rail Safety Act differently. Specifically, as mentioned suggestions into its post-accident testing earlier, while sedating antihistamines (FRSA). See 49 U.S.C. 20106. program. For example, FRA is amending As discussed below, however, FRA is are available at both prescription and the contents of its standard post- proposing to add language similar to OTC dosages, they are usually taken as accident testing box, which contains that currently found in paragraph (b) of OTC drugs. Since by definition these instructions, forms and supplies for the this section to a new paragraph (c) in drugs can cause sedation, in 2009 FRA collection of urine and blood samples § 219.17, clarifying the lack of impact began post-accident testing for sedating from three surviving employees. (FRA is that part 219 has on State criminal law. antihistamines to determine whether not changing the contents of its fatalities FRA is keeping this language in part 219 their use is becoming a safety issue in post-accident testing box.) FRA is because it is instructive and consistent the rail industry. This testing has been updating Form FRA F 6180.74, Post- with long-standing FRA guidance. for research and accident investigation Accident Testing Blood/Urine Custody Section 219.17—Construction purposes only, and FRA has not and Control Form (Form 74) by deleting reported any sedating antihistamine test outdated information requests (e.g., FRA is proposing to add a new results to railroads or employees. FRA removing the space for identification of paragraph (c) to this section that would intends to continue its research testing the employee’s home terminal in Step contain language similar to that related to sedating antihistamines and 1), streamlining the chain of custody currently found in § 219.13(b). This in this NPRM proposes to continue to documentation in Step 5, and making language would state that part 219 does keep the testing results confidential and other miscellaneous amendments. (FRA not impact State criminal laws imposing not report to the relevant railroad or is not changing Form FRA F 6180.73, sanctions for reckless conduct that leads employee any sedating antihistamine Accident Information Required for Post- to actual loss of life, injury, or damage post-accident test results. FRA seeks Accident Toxicological Testing.) FRA to property, whether such provisions comment on this proposal (i.e., whether will also add new guidance documents apply specifically to railroad employees the agency should continue to keep to the contents of its standard post- or the public at large. As noted above, similar language is currently found in post-accident test results for sedating accident testing box to familiarize § 219.13(b) and FRA is not proposing antihistamines confidential). individuals who may become involved any substantive change with this in the collection of post-accident In contrast, while tramadol is also a amendment. non-controlled substance, it is a samples but who do not regularly work prescription-only semi-synthetic opioid with the rail industry (e.g., employees of Section 219.211—Analysis and Follow- that can cause drowsiness and independent medical facilities and local Up dizziness. FRA is seeking specific law enforcement officers) with the post- In the second sentence of paragraph comments on how it should handle accident testing program’s basis, (a), FRA proposes to replace the phrase tramadol post-accident test results. purpose, and requirements. ‘‘alcohol and controlled substances Should FRA release post-accident test Section-by-Section Analysis specified by FRA’’ with ‘‘alcohol, results for tramadol as it does for other controlled substances, and non- opioids that are controlled substances? Section 219.5—Definitions controlled substances specified by FRA’’ to add routine testing for non-controlled Should FRA keep post-accident results As mentioned above, in FRA’s survey for tramadol confidential as it proposes substances to its post-accident testing of employees involved in reportable program. From this same sentence, FRA to continue doing for sedating human factor accidents, many antihistamines? Is there another also proposes to delete the reference to employees self-reported using multiple submittal of FRA post-accident testing approach that would better handle substances; most of these, whether tramadol test results? protocols to HHS. As stated earlier, prescription drugs, OTC drugs, dietary FRA’s post-accident testing program is The proposed addition of these non- supplements, or herbal preparations, exempted from HHS guidelines. Finally, controlled substances to FRA’s standard were non-controlled substances. Part FRA would add a sentence stating that post-accident program would not create 219 already defines a controlled substances may be tested for in any new direct costs for employers since substance, but FRA believes that a form, whether naturally or synthetically FRA would bear the costs of the definition of a non-controlled substance derived, since controlled substances can additional post-accident tests. Any is necessary now to help employees be derived from many sources (e.g., additional costs to employers would be better understand the variety of opiates can be natural, synthetic, or minimal and indirect, such as the cost substances available. FRA would define semi-synthetic in origin.) of responding to an increased number of a non-controlled substance as any FRA also proposes to amend the first positive post-accident test results substance that the DEA has not sentence of paragraph (b) in this section should FRA decide to report tramadol or classified as a controlled substance to limit reporting of post-accident test sedating antihistamine results, or both. under the CSA. results to results for controlled

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substances only. As mentioned above, substances would be nominal and would generate safety benefits. FRA is asking for comments on how to assumed by the Federal government in Qualitative benefits would be generated handle the reporting of post-accident their entirety. Railroads would not be with the inclusion of sedating test results of non-controlled substances required to change their collection antihistamines and tramadol in the post- (tramadol and sedating antihistamines). process and would have to follow the accident testing panel by providing FRA FRA may make additional amendments same collection, shipping, and handling with the data necessary to carry out to this paragraph after it has considered processes they currently follow. This research to inform future policy on this any comments received. means that individuals subject to post- topic. The NPRM would generate Regulatory Impact and Notices accident testing would provide the same quantifiable benefits upon the addition specimens currently required, which of sedating antihistamines to the post- Executive Order 12866 and 13563 and would then be tested for tramadol and accident testing panel by creating a DOT Regulatory Policies and Procedures sedating antihistamines at FRA’s small deterring effect on the use of expense. Since FRA would use these This proposed rule has been sedating antihistamines by railroad results for research and accident evaluated in accordance with existing workers and encouraging the use of policies and procedures under both investigation purposes only, tramadol and sedating antihistamines test results alternative medications for allergic Executive Order 12866 and 13563 and relief. Thus, in general, the proposed DOT policies and procedures. See 44 FR would not be reported directly to either rule should reduce railroad accidents 11034; February 26, 1979. FRA has the employee or the employing railroad. and their associated casualties and prepared and placed in the docket This reporting process would apply to (FRA–2010–0155) a regulatory impact both surviving and fatally injured damages. FRA believes the value of the analysis addressing the economic employees. No monetary costs would be anticipated safety benefits would exceed impact of this proposed rule. imposed on the industry as a result of the cost to the industry of implementing As part of the regulatory impact this addition. the proposed rule. Over a 10-year analysis, FRA has assessed pertinent As part of the regulatory impact period, this analysis finds that $2.3 costs expected from the implementation analysis, FRA has explained what the million in benefits would accrue of this proposed rule. FRA has not likely benefits for this proposed rule through accident prevention. The found any costs associated with this would be, and provided numerical discounted value of this is $1.9 million NPRM for the regulated industry. Any assessments of the potential value of (PV, 7 percent). The table below associated costs for conducting post- such benefits. The proposed inclusion presents the estimated benefits accident testing for non-controlled of tramadol and sedating antihistamines associated with the proposed rule.

10-YEAR ESTIMATED BENEFITS OF PROPOSED RULE [in millions]

Benefits PV, 7%

Tramadol ...... $0 $0 Sedating Antihistamines ...... 2.3 1.9

Total ...... 2.3 1.9 Dollars are discounted at a Present value rate of 7 percent.

Regulatory Flexibility Act and that a rule, if promulgated, would not being submitted for approval to the Executive Order 13272 have a significant impact on a Office of Management and Budget substantial number of small entities. (OMB) under the Paperwork Reduction The Regulatory Flexibility Act (5 FRA certifies that this proposed rule Act of 1995, 44 U.S.C. 3501 et seq. The U.S.C. 601 et seq.) and Executive Order would not have a significant impact on section that contains the revised 13272 require a review of proposed and a substantial number of small entities. information collection requirement and final rules to assess their impacts on the estimated time to fulfill this small entities. An agency must prepare Paperwork Reduction Act requirement are as follows: an initial regulatory flexibility analysis The revised information collection (IRFA) unless it determines and certifies requirements in this proposed rule are

Average time per Total annual CFR Section Respondent universe Total annual responses response burden hours

219.211—Analysis and Follow-up—Reports of 698 railroads ...... 16 reports + 16 report 15 minutes + 5 minutes 5 Positive Post-Accident Toxicological Test copies. (Controlled Substances) to Medical Review Officer and Employee (Revised Requirement).

All estimates include the time for comments concerning: whether this burden of the information collection reviewing instructions; searching information collection requirement is requirement; the quality, utility, and existing data sources; gathering or necessary for the proper performance of clarity of the information to be maintaining the needed data; and the functions of FRA, including whether collected; and whether the burden of reviewing the information. Pursuant to the information has practical utility; the collection of information on those who 44 U.S.C. 3506(c)(2)(B), FRA solicits accuracy of FRA’s estimates of the are to respond, including through the

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use of automated collection techniques necessary to pay the direct compliance circumstances exist with respect to this or other forms of information costs incurred by State and local regulation that might trigger the need for technology, may be minimized. For governments, or the agency consults a more detailed environmental review. information or a copy of the paperwork with State and local government As a result, FRA finds that this package submitted to OMB, contact Mr. officials early in the process of proposed rule is not a major Federal Robert Brogan, Information Clearance developing the regulation. Where a action significantly affecting the quality Officer, at 202–493–6292, or Ms. regulation has federalism implications of the human environment. Kimberly Toone at 202–493–6132. and preempts State law, the agency Unfunded Mandates Reform Act of Organizations and individuals seeks to consult with State and local 1995 desiring to submit comments on the officials in the process of developing the collection of information requirement regulation. FRA has analyzed this The Unfunded Mandates Reform Act should direct them to Mr. Robert Brogan NPRM in accordance with the of 1995 (Pub. L. 104–4, 2 U.S.C. 1531) or Ms. Kimberly Toone, Federal principles and criteria contained in requires agencies to prepare a written Railroad Administration, 1200 New Executive Order 13132. This NPRM assessment of the costs, benefits, and Jersey Avenue SE., 3rd Floor, complies with a statutory mandate, and other effects of proposed or final rules Washington, DC 20590. Comments may FRA believes it is in compliance with that include a Federal mandate likely to also be submitted via email to Mr. Executive Order 13132. result in the expenditures by State, local Brogan or Ms. Toone at the following This NPRM will not have a or tribal governments, in the aggregate, address: [email protected]; substantial effect on the States, on the or by the private sector, of more than [email protected]. relationship between the Federal $100 million annually (adjusted OMB is required to make a decision government and the States, or on the annually for inflation with base year of concerning the collection of information distribution of power and 1995). The value equivalent of $100 requirement contained in this proposed responsibilities among the various million in CY 1950, adjusted annually rule between 30 and 60 days after levels of government. In addition, this for inflation to CY 2008 levels by the publication of this document in the NPRM will not have any federalism Consumer Price Index for All Urban Federal Register. Therefore, a comment implications that impose substantial Consumers (CPI–U) is $141.3 million. to OMB is best assured of having its full direct compliance costs on State and This assessment may be included in effect if OMB receives it within 30 days local governments. conjunction with other assessments, as of publication. The final rule will This NPRM could have preemptive it is here. The proposed rule would not respond to any OMB or public effect by operation of law under certain create an unfunded mandate in excess comments on the information collection provisions of the Federal railroad safety of the threshold amount. requirements contained in this proposal. statutes, specifically the former FRSA, Energy Impact FRA is not authorized to impose a repealed and recodified at 49 U.S.C penalty on persons for violating 20106. The former FRSA provides that Executive Order 13211 requires information collection requirements States may not adopt or continue in Federal agencies to prepare a Statement which do not display a current OMB effect any law, regulation, or order of Energy Effects for any ‘‘significant control number, if required. FRA related to railroad safety or security that energy action.’’ 66 FR 28355 (May 22, intends to obtain current OMB control covers the subject matter of a regulation 2001). Under the Executive Order, a numbers for any new information prescribed or order issued by the ‘‘significant energy action’’ is defined as collection requirement resulting from Secretary of Transportation (with any action by an agency (normally this rulemaking action prior to the respect to railroad safety matters) or the published in the Federal Register) that effective date of the final rule. The OMB Secretary of Homeland Security (with promulgates or is expected to lead to the control number, when assigned, will be respect to railroad security matters), promulgation of a final rule or announced by separate notice in the except when the State law, regulation, regulation, including notices of inquiry, Federal Register. or order qualifies under the ‘‘local safety advance notices of proposed or security hazard’’ exception to section rulemaking, and notices of proposed Federalism Implications 20106. rulemaking: (1)(i) That is a significant Executive Order 13132, ‘‘Federalism’’ regulatory action under Executive Order Environmental Impact (64 FR 43255, Aug. 4, 1999), requires 12866 or any successor order, and (ii) is FRA to develop an accountable process FRA has evaluated this proposed rule likely to have a significant adverse effect to ensure ‘‘meaningful and timely input in accordance with its ‘‘Procedures for on the supply, distribution, or use of by State and local officials in the Considering Environmental Impacts’’ energy; or (2) that is designated by the development of regulatory policies that (‘‘FRA’s Procedures’’) (64 FR 28545, Administrator of the Office of have federalism implications.’’ ‘‘Policies May 26, 1999) as required by the Information and Regulatory Affairs as a that have federalism implications’’ are National Environmental Policy Act (42 significant energy action. FRA has defined in the Executive Order to U.S.C. 4321 et seq.), other evaluated this proposed rule in include regulations that have environmental statutes, Executive accordance with Executive Order 13211, ‘‘substantial direct effects on the States, Orders, and related regulatory and determined that it is not a on the relationship between the national requirements. FRA has determined that ‘‘significant regulatory action’’ likely to government and the States, or on the this proposed rule is not a major FRA have a significant adverse effect on the distribution of power and action (requiring the preparation of an supply, distribution, or use of energy. responsibilities among the various environmental impact statement or levels of government.’’ Under Executive environmental assessment) because it is Privacy Act Order 13132, the agency may not issue categorically excluded from detailed FRA wishes to inform all interested a regulation with federalism environmental review pursuant to parties that anyone is able to search the implications that imposes substantial section 4(c)(20) of FRA’s Procedures. In electronic form of any written direct compliance costs and that is not accordance with section 4(c) and (e) of communications and comments required by statute, unless the Federal FRA’s Procedures, the agency has received into any of our dockets by the government provides the funds further concluded that no extraordinary name of the individual submitting the

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document (or signing the document), if Non-controlled substance means any controlled substances specified by FRA submitted on behalf of an association, substance (including prescription under protocols specified by FRA. business, labor union, etc.). Interested medications, over-the-counter products, These substances may be tested for in parties may also review DOT’s complete dietary supplements, and herbal any form, whether naturally or Privacy Act Statement in the Federal preparations) which is not currently synthetically derived. Specimens may Register published on April 11, 2000 regulated under 21 U.S.C. 801–971 or 21 be analyzed for other impairing (65 FR 19477) or visit http:// CFR part 1308. substances specified by FRA as www.dot.gov/privacy.html. * * * * * necessary to the particular accident investigation. List of Subjects in 49 CFR Part 219 § 219.13 [Removed and Reserved] (b) Results of post-accident Alcohol abuse, Drug abuse, Drug 3. Remove and reserve § 219.13. toxicological testing for controlled testing, Penalties, Railroad safety, 4. Amend § 219.17 by adding substances conducted under this Reporting and recordkeeping paragraph (c) to read as follows: subpart are reported to the railroad’s requirements, Safety, Transportation. § 219.17 Construction. Medical Review Officer and the The Proposed Rule * * * * * employee. * * * (c) Impacts provisions of State * * * * * For the reasons stated above, FRA criminal law that impose sanctions for 6. Revise Appendix B to part 219 to proposes to amend part 219 of chapter reckless conduct that leads to actual loss read as follows: II, subtitle B of title 49, Code of Federal of life, injury or damage to property, Regulations, as follows: whether such provisions apply Appendix B to Part 219—Designation of Laboratory for Post-Accident PART 219—[AMENDED] specifically to railroad employees or generally to the public at large. Toxicological Testing 1. The authority citation for part 219 5. Amend § 219.211 by revising paragraph (a) and the first sentence of The following laboratory is currently is revised to read as follows: designated to conduct post-accident paragraph (b) to read as follows: Authority: 49 U.S.C. 20102–20103, 20107, toxicological analysis under subpart C of this 20140, 21301, 21304, 21311; 28 U.S.C. 2461, § 219.211 Analysis and follow-up. part: Quest Diagnostics, 1777 Montreal note; and 49 CFR 1.49. Circle, Tucker, GA 30084, Telephone: (800) (a) The laboratory designated in 729–6432. 2. Amend § 219.5 by adding the appendix B to this part undertakes prompt analysis of specimens provided Issued in Washington, DC, on May 10, following definition for ‘‘Non-controlled 2012. substance’’ in alphabetical order to read under this subpart, consistent with the Melissa L. Porter, as follows: need to develop all relevant information and produce a complete report. Chief Counsel. § 219.5 Definitions. Specimens are analyzed for alcohol, [FR Doc. 2012–11969 Filed 5–16–12; 8:45 am] * * * * * controlled substances, and non- BILLING CODE 4910–06–P

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Notices Federal Register Vol. 77, No. 96

Thursday, May 17, 2012

This section of the FEDERAL REGISTER the collection of information unless it Disease prevention is the most effective contains documents other than rules or displays a currently valid OMB control method for maintaining a healthy proposed rules that are applicable to the number. animal population for enhancing the public. Notices of hearings and investigations, United States’ ability to compete in the Animal and Plant Health Inspection committee meetings, agency decisions and world market of animal and animal rulings, delegations of authority, filing of Service product trade. Chronic Wasting Disease petitions and applications and agency Title: Quarantine for Hawaii and statements of organization and functions are (CWD) is a transmissible spongiform examples of documents appearing in this United States Territories. encephalopathy of elk, deer, and moose section. OMB Control Number: 0579–0198. typified by chronic weight loss leading Summary of Collection: Under the to death. The Animal and Plant Health Plant Protection Act (7 U.S.C. 7701-et Inspection Service (APHIS) is DEPARTMENT OF AGRICULTURE seq.), the Secretary of Agriculture is publishing an amended CWD final rule authorized to prohibit or restrict the to create a cooperative, voluntary Submission for OMB Review; importation, entry, or movement of Federal-State-private sector CWD Herd Comment Request plants and plant products to prevent the Certification Program designed to introduction of plant pest into the actively identify farmed or captive herds May 14, 2012. United States or their dissemination infected with CWD and provide for the The Department of Agriculture has within the United States. The Plant management of these herds in a way submitted the following information Protection and Quarantine, a program that will prevent further spread of CWD. collection requirement(s) to OMB for within the Animal and Plant Health Need and Use of the Information: review and clearance under the Inspection Service (APHIS), is Implementing the program will require Paperwork Reduction Act of 1995, responsible for implementing the Act the following information collection Public Law 104–13. Comments and does so through the enforcement of activities: (1) A Memorandum of regarding (a) whether the collection of APHIS’ Hawaiian and Territorial Understanding between APHIS and information is necessary for the proper Quarantine Regulations, contained in participating States by a request from performance of the functions of the Part 318 of Title 7, Code of Federal the State; (2) A formal request to agency, including whether the Regulations. Hawaiian and territorial participate in the program; (3) A formal information will have practical utility; quarantines are necessary to prevent the request to participate by State; (4) Wild (b) the accuracy of the agency’s estimate spread of dangerous plant diseases and Cervid Identification (for Interstate of burden including the validity of the pests. APHIS will collect information movement); (5) Farmed Cervid methodology and assumptions used; (c) using forms PPQ 519, Compliance Identification; (6) Reporting of cervid ways to enhance the quality, utility and Agreement and PPQ 530, Limited escape, disappearances, and deaths; (7) clarity of the information to be Permit. Recordkeeping: Herd records including collected; (d) ways to minimize the Need and Use of the Information: inventory; (8) Certificate and/or animal burden of the collection of information APHIS will collect information from a identification documents to move on those who are to respond, including variety of individuals who are involved cervids interstate; (9) An appeal letter to through the use of appropriate in growing, packing, handling, and contest a suspension from the program; automated, electronic, mechanical, or transporting plants and plant products. (10) A herd or premises plan if CWD is other technological collection The information collected will be used discovered; and (11) Lab submission. techniques or other forms of information to determine compliance with Failing to collect this information would technology should be addressed to: Desk regulations and for issuance of forms, make it impossible for APHIS to launch Officer for Agriculture, Office of permits, certificates, and other required its CWD Herd Certification Program, Information and Regulatory Affairs, documents. Office of Management and Budget thereby hindering APHIS’s ability to Description of Respondents: Business prevent and control the spread of CWD (OMB), or other for-profit; State, Local or Tribal [email protected] or in the United States. Government. Description of Respondents: Business fax (202) 395–5806 and to Departmental Number of Respondents: 110. or other for-profit; State, Local or Tribal Clearance Office, USDA, OCIO, Mail Frequency of Responses: Reporting: Government. Stop 7602, Washington, DC 20250– On occasion. Number of Respondents: 2,300. 7602. Comments regarding these Total Burden Hours: 3,096. Frequency of Responses: Recording; information collections are best assured Animal and Plant Health Inspection Reporting: On occasion. of having their full effect if received Total Burden Hours: 157,536. within 30 days of this notification. Service Copies of the submission(s) may be Title: CWD ELK Herd Certification Animal and Plant Health Inspection obtained by calling (202) 720–8958. Program. Service An agency may not conduct or OMB Control Number: 0579–0237. Title: Importation of Peppers from sponsor a collection of information Summary of Collection: The Animal Certain Central American Countries. unless the collection of information Health Protection Act (AHPA) of 2002, OMB Control Number: 0579–0274. displays a currently valid OMB control is the primary Federal law governing the Summary of Collection: Under the number and the agency informs protection of animal health. The law Plant Protection Act (PPA) (7 U.S.C. potential persons who are to respond to gives the Secretary of Agriculture broad 7701–7772), the Secretary of Agriculture the collection of information that such authority to detect, control, or eradicate is authorized to carry out operations or persons are not required to respond to pests or diseases of livestock or poultry. measures to detect, eradicate, suppress,

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control, prevent, or retard the spread of ADDRESSES: Tahoe Regional Planning 2011.1 The final results of this plant pests new to the United States or Agency, 128 Market Street, Stateline, administrative review are currently due not known to be widely distributed Nevada 89449–5310. on July 21, 2012. throughout the United States. For Further Information or to Request Extension of Time Limit for the Final Regulations authorized by the PPA An Accommodation Contact: Arla Results concerning the importation of fruits and Hains, Lake Tahoe Basin Management vegetables into the United States from Unit, Forest Service, 35 College Drive, Section 751(a)(3)(A) of the Tariff Act certain parts of the world are contained South Lake Tahoe, CA 96150, (530) of 1930, as amended (the ‘‘Act’’), in ‘‘Subpart Fruits and Vegetables’’ (7 543–2773. requires the Department to issue the final results of an administrative review CFR 319.56 through 319.56–47). The SUPPLEMENTARY INFORMATION: Items to Animal and Plant Health Inspection be covered on the agenda: (1) Update within 120 days after the date on which Service (APHIS) amended the fruits and and planning for the Tahoe Summit, (2) the Preliminary Results have been vegetables regulations to allow certain the revised Vision for consideration and published. If it is not practicable to type of peppers grown in approved formal consensus, and (3) public complete the review within the time registered production sites in Costa comment. period, section 751(a)(3)(A) of the Act allows the Department to extend this Rica, El Salvador, Guatemala, Honduras, All Lake Tahoe Basin Federal deadline to a maximum of 180 days. and Nicaragua to be imported, under Advisory Committee meetings are open The Department determines that certain conditions, into the United to the public. Interested citizens are completion of the final results of this States without treatment while encouraged to attend at the above review within the statutory time period continuing to provide protection against address. Issues may be brought to the is not practicable. The Department the introduction of quarantine pests into attention of the Committee during the requires more time to analyze a the United States. open public comment period at the Need and Use of the Information: The significant amount of information meeting or by filing written statements regulations require the use of pertaining to the respondent’s corporate with the secretary for the Committee information collection activities structure and ownership, sales practices before or after the meeting. Please refer including inspections by Central and manufacturing methods. Therefore, any written comments to the Lake American national plant protection given the number and complexity of Tahoe Basin Management Unit at the organization officials, fruit fly trapping, issues in this case, and in accordance contact address stated above. monitoring, recordkeeping, box labeling, with section 751(a)(3)(A) of the Act, we and phytosanitary certificate. Dated: May 9, 2012. are extending the time period for issuing Description of Respondents: Not-for- Nancy J. Gibson, the final results of review by 60 days profit institutions. Forest Supervisor. until September 19, 2012. Number of Respondents: 245. [FR Doc. 2012–11960 Filed 5–16–12; 8:45 am] This notice is published pursuant to Frequency of Responses: BILLING CODE 3410–11–P sections 751(a)(1)(3)(A) and 777(i)(1) of Recordkeeping; Reporting: On occasion. the Act and 19 CFR 351.213(h)(2). Total Burden Hours: 2,999. Dated: May 4, 2012. Ruth Brown, Christian Marsh, DEPARTMENT OF COMMERCE Departmental Information Collection Deputy Assistant Secretary for Antidumping Clearance Officer. International Trade Administration and Countervailing Duty Operations. [FR Doc. 2012–11970 Filed 5–16–12; 8:45 am] [FR Doc. 2012–11889 Filed 5–16–12; 8:45 am] BILLING CODE 3410–34–P BILLING CODE 3510–DS–P [A–570–908]

Sodium Hexametaphosphate From the DEPARTMENT OF AGRICULTURE DEPARTMENT OF COMMERCE People’s Republic of China: Extension Forest Service of Time Limit for the Final Results International Trade Administration AGENCY: Lake Tahoe Basin Federal Advisory Import Administration, Meeting of the President’s Export Committee (LTFAC) International Trade Administration, Council Department of Commerce. AGENCY: Forest Service, USDA. DATES: Effective Date: May 17, 2012. AGENCY: International Trade ACTION: Notice of meeting. Administration, U.S. Department of FOR FURTHER INFORMATION CONTACT: Paul Commerce. SUMMARY: The Lake Tahoe Federal Walker, AD/CVD Operations, Office 9, Advisory Committee will hold a Import Administration, International ACTION: Notice of an open meeting. meeting on June 14, 2012 at the Tahoe Trade Administration, U.S. Department SUMMARY: The President’s Export of Commerce, 14th Street and Regional Planning Agency, 128 Market Council will hold a meeting to discuss Constitution Avenue NW., Washington, Street, Stateline, Nevada 89449–5310. topics and provide recommendations DC 20230; telephone 202.482.0413. This Committee, established by the related to the National Export Initiative Secretary of Agriculture on December Background and export promotion. 15, 1998 (64 FR 2876), is chartered to provide advice to the Secretary on On March 23, 2012, the Department of DATES: June 6, 2012 at 9:30 a.m. (ET). implementing the terms of the Federal Commerce (the ‘‘Department’’) ADDRESSES: The President’s Export Interagency Partnership on the Lake published in the Federal Register the Council will convene this meeting via Tahoe Region and other matters raised Preliminary Results of the second by the Secretary. administrative review of sodium 1 See Sodium Hexametaphosphate from the DATES: hexametaphosphate from the People’s People’s Republic of China: Preliminary Results of The meeting will be held June Second Antidumping Duty Administrative Review, 14, 2012, beginning at 9:00 a.m. and Republic of China (‘‘PRC’’), covering the 77 FR 17013 (March 23, 2012) (‘‘Preliminary ending at 12:00 p.m. period March 1, 2010 to February 28, Results’’).

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live Webcast on the Internet at http:// DEPARTMENT OF COMMERCE review the questionnaire responses and whitehouse.gov/live. issue appropriate requests for International Trade Administration FOR FURTHER INFORMATION CONTACT: clarification and additional information. Tricia Van Orden, Executive Secretary, [A–570–981, A–552–814] Because there are no compelling President’s Export Council, Room 4043, reasons to deny the request, the 1401 Constitution Avenue NW., Utility Scale Wind Towers From the Department, in accordance with section Washington, DC 20230, telephone: 202– People’s Republic of China and the 733(c)(1)(A) of the Act, is postponing 482–5876, email: Socialist Republic of Vietnam: the deadline for the preliminary [email protected]. Postponement of Preliminary determinations to no later than 190 days Determinations of Antidumping Duty after the date on which the Department SUPPLEMENTARY INFORMATION: Investigations initiated these investigations. Therefore, Background: The President’s Export the new deadline for issuing these AGENCY: Import Administration, Council was first established by preliminary determinations is July 26, International Trade Administration, Executive Order on December 20, 1973 2012. Department of Commerce. to advise the President on matters This notice is issued and published relating to U.S. export trade and report DATES: May 17, 2012. pursuant to section 733(c)(2) of the Act to the President on its activities and on FOR FURTHER INFORMATION CONTACT: and 19 CFR 351.205(f)(1). its recommendations for expanding U.S. Shawn Higgins (People’s Republic of Dated: May 10, 2012. exports. The President’s Export Council China) or Magd Zalok (Socialist Lynn Fischer Fox, Republic of Vietnam), AD/CVD was renewed most recently by Executive Acting Assistant Secretary for Import Order 13585 of September 30, 2011, for Operations, Office 4, Import Administration. Administration, International Trade the two-year period ending September [FR Doc. 2012–11980 Filed 5–16–12; 8:45 am] Administration, U.S. Department of 30, 2013. This Committee is established BILLING CODE 3510–DS–P in accordance with the provisions of the Commerce, 14th Street and Constitution Federal Advisory Committee Act Avenue NW., Washington, DC 20230, (FACA), as amended, 5 U.S.C. App. telephone: (202) 482–0679 or (202) 482– DEPARTMENT OF COMMERCE Public Submissions: The public is 4162, respectively. invited to submit written statements to SUPPLEMENTARY INFORMATION: National Oceanic and Atmospheric the President’s Export Council by C.O.B. Postponement of Preliminary Administration May 25, 2012 by either of the following Determinations RIN 0648–XC015 methods: On January 24, 2012, the Department New England Fishery Management Electronic Statements of Commerce (the ‘‘Department’’) Council; Public Meeting; published a notice of initiation of Submit electronic statements via the antidumping duty investigations of President’s Export Council Web site at Correction utility scale wind towers from the http://trade.gov/pec/peccomments.asp; AGENCY: National Marine Fisheries People’s Republic of China and the or Service (NMFS), National Oceanic and Socialist Republic of Vietnam.1 The Atmospheric Administration (NOAA), notice of initiation stated that the Paper Statements Commerce. Department, in accordance with section Send paper statements to Tricia Van 773(b)(1)(A) of the Tariff Act of 1930, as ACTION: Notice; correction. Orden, Executive Secretary, President’s amended (the ‘‘Act’’), and 19 CFR Export Council, Room 4043, 1401 SUMMARY: The New England Fishery 351.205(b)(1), would issue its Management Council (Council) has Constitution Avenue NW., Washington, preliminary determinations for these DC 20230. All statements will be posted changed the date of its Groundfish investigations, unless postponed, no Advisory Panel Meeting on Wednesday, on the President’s Export Council Web later than 140 days after the date of the site (http://trade.gov/pec/ May 23, 2012. The date of the meeting initiation. The preliminary will now be Tuesday, May 22, 2012. The peccomments.asp) without change, determinations of these antidumping including any business or personal meeting was announced in the Federal duty investigations are currently due no Register on May 4, 2012. information provided such as names, later than June 6, 2012. DATES: The meeting will be held on addresses, email addresses, or telephone On May 3, 2012, the Wind Tower Tuesday, May 22, 2012, at 9 a.m. numbers. All statements received, Trade Coalition (‘‘Petitioner’’), pursuant including attachments and other to section 733(c)(1)(A) of the Act and 19 FOR FURTHER INFORMATION CONTACT: Paul supporting materials, are part of the CFR 351.205(b)(2) and (e), made a J. Howard, Executive Director, New public record and subject to public timely request for postponement of the England Fishery Management Council disclosure. You should submit only preliminary determinations in these (978) 465–0492. information that you wish to make investigations.2 Petitioner requested a SUPPLEMENTARY INFORMATION: available publicly. 50-day postponement of the preliminary Correction Meeting minutes: Copies of the determinations in order to provide the Council’s meeting minutes will be Department with sufficient time to The initial notice published on May 4, available within ninety (90) days of the 2012 (77 FR 26515). The DATES caption meeting. 1 See Utility Scale Wind Towers From the People’s has been corrected. The agenda and the rest of the text have not changed and Dated: May 8, 2012. Republic of China and the Socialist Republic of Vietnam: Initiation of Antidumping Duty will not be repeated here. Tricia Van Orden, Investigations, 77 FR 3440 (January 24, 2012). Executive Secretary, President’s Export 2 See Letter from Petitioner to the Secretary of Special Accommodations Council. Commerce, ‘‘Certain Utility Scale Wind Towers from the People’s Republic of China and the Requests for special accommodations [FR Doc. 2012–11519 Filed 5–16–12; 8:45 am] Socialist Republic of Vietnam: Request to Fully should be addressed to the New BILLING CODE 3510–DR–M Extend Preliminary Determination’’ (May 3, 2012). England Fishery Management Council,

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50 Water Street, Newburyport, MA arising after publication of this notice Executive Order 13158, which calls for 01950; telephone: (978) 465–0492. that require emergency action under the development of a National System of Authority: 16 U.S.C. 1801 et seq. section 305(c) of the Magnuson-Stevens MPAs. The National System aims to Act, provided the public has been strengthen existing MPAs and MPA Dated: May 14, 2012. notified of the Council’s intent to take programs through national and regional Tracey L. Thompson, final action to address the emergency. coordination, capacity building, science Acting Director, Office of Sustainable and analysis. The meeting is open to the Special Accommodations Fisheries, National Marine Fisheries Service. public, and public comment will be [FR Doc. 2012–11968 Filed 5–16–12; 8:45 am] The meeting is physically accessible accepted from 3:00 p.m. to 4:00 p.m. on BILLING CODE 3510–22–P to people with disabilities. Requests for Wednesday, June 13, 2012. In general, sign language interpretation or other each individual or group will be limited auxiliary aids should be directed to M. to a total time of five (5) minutes. If DEPARTMENT OF COMMERCE Jan Saunders at the Mid-Atlantic members of the public wish to submit Council Office, (302) 526–5251, at least written statements, they should be National Oceanic and Atmospheric 5 days prior to the meeting date. submitted to the Designated Federal Administration Dated: May 11, 2012. Official by June 8, 2012. RIN 0648–XC026 Tracey L. Thompson, Matters To Be Considered: This meeting will be a joint meeting of the Mid-Atlantic Fishery Management Acting Director, Office of Sustainable Fisheries, National Marine Fisheries Service. Committee and National System of MPA Council (MAFMC); Public Meeting Partners (representatives from state and [FR Doc. 2012–11918 Filed 5–16–12; 8:45 am] federal MPA agencies). The focus of the AGENCY: National Marine Fisheries BILLING CODE 3510–22–P meeting will be learning about the Service (NMFS), National Oceanic and findings and recommendations of the Atmospheric Administration (NOAA), DEPARTMENT OF COMMERCE MPA Center External Review, sharing Commerce. information about capabilities, needs ACTION: Notice of a public meeting. National Oceanic and Atmospheric and priorities of partners, and identifying ways in which the SUMMARY: The Mid-Atlantic Fishery Administration Committee can better support the Management Council’s Mackerel, Squid, Marine Protected Areas Federal federal and state programs that make up and Butterfish (MSB) Monitoring Advisory Committee; Public Meeting the National System of MPAs. The Committee will hold a public meeting. Committee meeting will include a panel DATES: The meeting will be held on May AGENCY: National Ocean Service, presentation on MPAs and recreation 31, 2012 from 9 a.m. until 1 p.m. NOAA, Department of Commerce. and tourism. The Committee will ADDRESSES: The meeting will be held ACTION: Notice of open meeting. receive a draft charge and form via Webinar with a listening station also Subcommittees to address that charge. SUMMARY: available at the Council Address below. Notice is hereby given of a The agenda is subject to change. The Webinar registration: https:// meeting of the Marine Protected Areas latest version will be posted at http:// www1.gotomeeting.com/register/ Federal Advisory Committee www.mpa.gov. (Committee) in Silver Spring, Maryland. 474223601. Dated: May 12, 2012. Council address: Mid-Atlantic Fishery DATES: The meeting will be held Margaret A. Davidson, Management Council, 800 N. State Tuesday, June 12, 2012, from 8:30 a.m. Director, Office of Ocean and Coastal Street, Suite 201, Dover, DE 19901; to 5:30 p.m., Wednesday, June 13, from 8:30 a.m. to 5:00 p.m., and Thursday, Resource Management, National Ocean telephone: (302) 674–2331. Service, National Oceanic Atmospheric FOR FURTHER INFORMATION CONTACT: June 14, from 8:30 a.m. to 12:00 p.m. Administration. Christopher M. Moore Ph.D., Executive These times and the agenda topics described below are subject to change. [FR Doc. 2012–11949 Filed 5–16–12; 8:45 am] Director, Mid-Atlantic Fishery BILLING CODE 3510–08–P Management Council, 800 N. State Refer to the Web page listed below for Street, Suite 201, Dover, DE 19901; the most up-to-date meeting agenda. ADDRESSES: telephone: (302) 526–5255. The meeting will be held at CONSUMER PRODUCT SAFETY the Crowne Plaza Hotel, 8777 Georgia SUPPLEMENTARY INFORMATION: The COMMISSION primary purpose of the meeting is to Avenue, Silver Spring, MD 20910. develop recommendations for the FOR FURTHER INFORMATION CONTACT: Kara Sunshine Act Meeting Council regarding the management of Yeager, Designated Federal Officer, TIME AND DATE: Atlantic mackerel, butterfish, longfin MPA FAC, National Marine Protected Wednesday, May 23, (Loligo) squid, and Illex Squid for 2013, Areas Center, 1305 East West Highway, 2012; 10 a.m.–11 a.m. including annual catch limits, annual Silver Spring, Maryland 20910. (Phone: PLACE: Hearing Room 420, Bethesda catch targets, accountability measures, 301–713–3100 x162, Fax: 301–713– Towers, 4330 East West Highway, and other management measures. 3110); email: [email protected]; or Bethesda, Maryland. Although non-emergency issues not visit the National MPA Center Web site STATUS: Closed to the Public. at http://www.mpa.gov). contained in this agenda may come Matter To Be Considered before this group for discussion, in SUPPLEMENTARY INFORMATION: The accordance with the Magnuson-Stevens Committee, composed of external, Compliance Status Report Fishery Conservation and Management knowledgeable representatives of The Commission staff will brief the Act (Magnuson-Stevens Act), those stakeholder groups, was established by Commission on the status of compliance issues may not be the subject of formal the Department of Commerce (DOC) to matters. action during this meeting. Actions will provide advice to the Secretaries of For a recorded message containing the be restricted to those issues specifically Commerce and the Interior on latest agenda information, call (301) identified in this notice and any issues implementation of Section 4 of 504–7948.

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CONTACT PERSON FOR MORE INFORMATION: annual Work Plan by the $15,000,000 rescission. Also, a total of Todd A. Stevenson, Office of the Commissioners (Commissioners met on $10,150,000 in prior year unobligated Secretary, U.S. Consumer Product June 2, 2011 to consider the FY 2011 funding was used to address the Safety Commission, 4330 East West annual Work Plan). In addition, the final $15,000,000 rescission. Highway, Bethesda, MD 20814, (301) FY 2011 budget included a rescission of Joel Neimeyer, 504–7923. $15,000,000 in prior year unobligated Federal Co-Chair. Dated: May 15, 2012. funds and uncertainty on how the [FR Doc. 2012–11943 Filed 5–16–12; 8:45 am] Todd A. Stevenson, rescission may impact the FY2011 Work Plan was not resolved until September BILLING CODE 3300–01–P Secretary. 2011. [FR Doc. 2012–12135 Filed 5–15–12; 4:15 pm] With concurrence from the Office of BILLING CODE 6355–01–P Management and Budget and the DENALI COMMISSION Secretary of Commerce, the amended Fiscal Year 2012 Draft Work Plan FY 2011 annual Work Plan will be DENALI COMMISSION processed concurrently with the FY AGENCY: Denali Commission. 2012 Work Plan. The FY 2012 annual ACTION: Notice. Fiscal Year 2011 Draft Work Plan Work Plan is not included as part of this AGENCY: Denali Commission. amended FY 2011 annual Work Plan SUMMARY: The Denali Commission (Commission) is an independent federal ACTION: Notice. document. Changes are as follows. agency based on an innovative federal- SUMMARY: The Denali Commission Final FY 2011 funding received is state partnership designed to provide (Commission) is an independent federal provided in the table below. critical utilities, infrastructure and agency based on an innovative federal- support for economic development and state partnership designed to provide Denali Commission FY 2011 in training in Alaska by delivering funding table Totals critical utilities, infrastructure and federal services in the most cost- support for economic development and FY 2011 Energy & Water effective manner possible. The training in Alaska by delivering federal Appropriation ...... $10,678,600 Commission was created in 1998 with services in the most cost-effective FY 2011 USDA, Rural Utili- passage of the October 21, 1998 Denali manner possible. The Commission was ties Service (RUS) ...... 5,775,000 Commission Act (Act) (Title III of Pub. created in 1998 with passage of the FY 2011 Trans Alaska Pipe- L. 105–277, 42 U.S.C. 3121). The Denali October 21, 1998 Denali Commission line Liability (TAPL) Trust 7,010,000 Commission Act requires that the FY 2011 Federal Transit Ad- Commission develop proposed work Act (Act) (Title III of Pub. L. 105–277, ministration (FTA) ...... 5,000,000 42 U.S.C. 3121). The Denali plans for future spending and that the Commission Act requires that the Total FY 2011 Federal annual Work Plan be published in the Commission develop proposed work Program Available ..... 28,463,600 Federal Register, providing an plans for future spending and that the opportunity for a 30-day period of annual Work Plan be published in the Final FY 2011 obligations and public review and written comment. Federal Register, providing an expenditures are discussed below. This Federal Register notice serves to opportunity for a 30-day period of Administrative Funds: Reduced from announce the 30-day opportunity for public review and written comment. $2,558,250 to $2,000,000. public comment on the Denali This Federal Register notice serves to Energy Program: The bulk fuel and Commission Draft Work Plan for Federal announce the 30-day opportunity for rural power system upgrade programs Fiscal Year 2012. public comment on the Denali are reduced from $3,770,350 to DATES: Comments and related material Commission Draft Work Plan for Federal $1,828,600. Renewable energy planning to be received by June 12, 2012. and community technical assistance on Fiscal Year 2011. ADDRESSES: Submit comments to the DATES: Comments and related material heating, power and transportation Denali Commission, Attention: Sabrina to be received by June 10, 2012. energy use is unchanged ($300,000). Hoppas, 510 L Street, Suite 410, The emerging energy technology fund is ADDRESSES: Submit comments to the Anchorage, AK 99501. reduced from $2,400,000 to $1,700,000. Denali Commission, Attention: Sabrina Transportation Program: It is noted FOR FURTHER INFORMATION CONTACT: Ms. Hoppas, 510 L Street, Suite 410, that the $14,025,000 shown in the FY Sabrina Hoppas, Denali Commission, Anchorage, AK 99501. 2011 Work Plan for FY 2011 Federal 510 L Street, Suite 410, Anchorage, AK FOR FURTHER INFORMATION CONTACT: Ms. Highway Administration funding 99501. Telephone: (907) 271–1414. Sabrina Hoppas, Denali Commission, (FHWA) was not provided to the Email: [email protected]. 510 L Street, Suite 410, Anchorage, AK Commission, but was provided directly Background: The Denali Commission 99501. Telephone: (907) 271–1414. to the Alaska Department of (Commission) is an independent federal Email: [email protected]. Transportation. agency based on an innovative federal- On June 17, 2011, the Commission Health Program: Reduced from state partnership designed to provide published in the Federal Register a $700,000 to $0. critical utilities, infrastructure and proposed FY 2011 Work Plan. The Training Program: Reduced from support for economic development and Commission met subsequently and $500,000 to $0. training in Alaska by delivering federal recommended an amended FY 2011 Development Program: Reduced from services in the most cost-effective Work Plan, as presented in this $250,000 to $0. manner possible. The Commission was document. Solid Waste Program: Reduced from created in 1998 with passage of the Several factors contributed to this $100,000 to $0. October 21, 1998, Denali Commission amended FY 2011 Work Plan including Sponsorship Program: Reduced from Act (Act) (Title III of Pub. L. 105–277, continuing resolutions (CRs) passed by $100,000 to $0. 42 U.S.C. 3121). Congress late in the fiscal year resulting The reductions noted above total The Commission’s mission is to in latent consideration of the FY 2011 $4,850,000 and were used to address the partner with tribal, federal, state, and

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local governments and collaborate with their consideration and approval, and • Final transportation funds received all Alaskans to improve the upon receipt of approval from may be reduced due to agency effectiveness and efficiency of Commissioners, forwards the Work Plan modifications, reductions and fees government services, to develop a well- to the Secretary of Commerce for determined by the U.S. Department of trained labor force employed in a approval. Transportation. Final program available diversified and sustainable economy, • The Secretary of Commerce figures may not be provided until later and to build and ensure the operation approves the Work Plan. this spring. and maintenance of Alaska’s basic FY 2012 Annual Work Plan (Amended) • All Energy and Water infrastructure. In FY 2011, the typical annual Work Appropriation funds, including By creating the Commission, Congress operational funds, designated as ‘‘up to’’ mandated that all parties involved Plan process was not carried out. Several factors contributed to this may be reassigned to the Legacy Energy partner together to find new and Program, Bulk Fuel and Rural Power innovative solutions to the unique including continuing resolutions (CRs) passed by Congress late in the fiscal System Upgrades, if they are not fully infrastructure and economic expended in a program component area development challenges in America’s year resulting in latent consideration of the FY 2011 annual Work Plan by the or a specific project. most remote communities. • Pursuant to the Denali Commission Commissioners (Commissioners met on Total FY 2012 Budgetary Resources Act, as amended, the Commission June 2, 2011 to consider the FY 2011 provided: determines its own basic operating annual Work Plan). In addition, the final These are the figures that appear in principles and funding criteria on an FY 2011 budget included a rescission of the rows entitled ‘‘FY 2012 annual federal fiscal year (October 1 to $15,000,000 in prior year unobligated Appropriation’’ and are the original September 30) basis. The Commission funds and uncertainty on how the appropriations amounts which do not outlines these priorities and funding rescission may impact the FY 2011 include Commission overhead recommendations in an annual Work Work Plan was not resolved until deductions. These funds are identified Plan. The Work Plan is adopted on an September 2011. by their source name (i.e., Energy and annual basis in the following manner, With concurrence from the Office of Water Appropriation, USDA–RUS, etc.). which occurs sequentially as listed: Management and Budget (OMB) and the The grand total for all appropriations • Commissioners first forward an Secretary of Commerce, the amended appears at the end of the FY 2012 approved draft version of the Work Plan FY 2011 Work Plan will be processed Funding Table. to the Federal Co-Chair. concurrently with the FY 2012 Work • Total FY 2012 Program Available • The Federal Co-Chair approves the Plan. The FY 2011 Work Plan and the Funding: draft Work Plan for publication in the amended budget for the FY 2011 Work Federal Register providing an Plan are not included as part of this FY These are the figures that appear in opportunity for a 30-day period of 2012 Work Plan document. the rows entitled ‘‘FY 2012 public review and written comment. Appropriations—Program Available’’ During this time, the draft Work Plan is FY 2012 Appropriations Summary and are the amounts of funding also disseminated widely to The Denali Commission has available for program(s) activities after Commission program partners historically received several federal Commission overhead has been including, but not limited to the Bureau funding sources (identified by the deducted. The grand total for all of Indian Affairs (BIA), the Economic varying colors in the table below). These program available funds appears at the Development Administration (EDA), fund sources are governed by the end of the FY 2012 Funding Table. and the United States Department of following general principles: • Program Funding: • Agriculture—Rural Development In FY 2012 no project specific These are the figures that appear in (USDA–RD). earmarks were directed. the rows entitled with the specific • • The Energy and Water Public comment concludes and Program and Sub-Program area, and are Appropriation is eligible for use in all Commission staff provides the Federal the amounts of funding the Draft FY programs, but has historically been used Co-Chair with a summary of public 2012 Work Plan recommends, within substantively to fund the Energy comment and recommendations, if any, each program fund source for program Program. associated with the draft Work Plan. components. • If no revisions are made to the draft, • All other funds outlined below may • the Federal Co-Chair provides notice of be used only for the specific program Subtotal of Program Funding approval of the Work Plan to the area and may not be used across These are the figures that appear in Commissioners, and forwards the Work programs. For instance, Federal Transit rows entitled ‘‘subtotal’’ and are the Plan to the Secretary of Commerce for Administration funding, which has in subtotals of all program funding within approval; or, if there are revisions the the past been appropriated for the a given fund source. The subtotal must Federal Co-Chair provides notice of Transportation Program, may not be always equal the Total FY 2012 Program modifications to the Commissioners for moved to the Energy Program. Available Funding.

Denali Commission FY 2011 Funding Table Totals

FY 2012 Energy & Water Appropriation ...... $10,679,000. FY 2012 Energy & Water Appropriation—Administrative Funds ...... $3,294,000. FY 2012 Energy & Water Appropriation—Program Available ...... $7,385,000. Energy ...... $7,385,000. Emerging Energy Technology Program ...... $2,400,000. Bulk Fuel/RPSU Planning, Design & Construction ...... $3,770,350. Renewable Energy Technical Assistance ...... Up to $300,000.

Total Energy Projects ...... $6,470,350.

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Denali Commission FY 2011 Funding Table Totals

Health ...... $0. Training Program ...... $0. Economic Development ...... $0. Solid Waste Program ...... $0. Sponsorship Program ...... $0.

Sub-total $ ...... $8,120,350.

FY 2012 USDA, Rural Utilities Service (RUS)—pending estimate ...... $2,900,000. FY 2012 USDA, Rural Utilities Service (RUS)—Program Available (less 4% overhead) $2,784,000. Bulk Fuel/RPSU Planning, Design & Construction ...... $2,784,000.

Sub-total $ ...... $2,784,000.

FY 2012 Trans Alaska Pipeline Liability (TAPL) Trust ...... $6,800,000. FY 2012 Trans Alaska Pipeline Liability (TAPL)—Program Available (less 5% over- $6,460,000. head). Bulk Fuel Planning, Design & Construction ...... $6,460,000.

Sub-total $ ...... $6,460,000.

FY 2012 Federal Transit Administration (FTA)—Estimate: $5,000,000 from section $5,000,000. 3011 (FTA) for docks and harbors. FY 2012 Federal Highway Administration (FHWA)—Estimate: For necessary, ex- $0–$24,700,000. penses for the Denali Access System Program as authorized under Section 1960 of Public Law 109–59. FY 2012 Transportation Program Available—(less 5%) ...... $4,750,000–$28,215,000. Transportation Program: Docks & Harbors ...... $4,750,000. Transportation Program: Roads—Estimate ...... $0–$23,465,000.

Sub-total $ ...... $4,750,000–$28,215,000.

Total FY 2012 Federal Program Available ...... $21,379,000–$44,844,000.

FY 12 Program Details & General Energy Program passed legislation and funded the Information Renewable Energy Fund (REF). Basic Rural Energy Infrastructure With the advent of the REF, State The following section provides The Energy Program is the resources to meet commercial-ready narrative discussion, by each of the Commission’s original program and renewable technology needs are Commission Programs identified for focuses on bulk fuel facilities (BFU) and available, yet a gap in meeting the funding in the FY 2012 funding table rural power system upgrades/power emerging energy technology needs was above. generation (RPSU) across rural Alaska. identified. Similar to the REF About 94% of electricity in rural partnership, the newly established Government Coordination communities is produced by diesel Emerging Energy Technology Fund The Commission is charged with the generators and about half the fuel (EETF) was provided seed funding to special role of increasing the storage in most villages is used for these support demonstration projects for power plants for distribution. effectiveness of government programs applied research and further Alternative means of generating power technologies focusing on deployment in by acting as a catalyst to coordinate the can reduce the capacity needed for fuel rural Alaska. The EETF has since passed many federal and state programs that storage and ultimately reduce the cost of the State Legislature, has formed its serve Alaska. In FY 2011 the power to the community. selection process and is proceeding with Commission will continue its role of project selection. coordinating State and Federal agencies Alternative/Renewable Program and and other partner organizations to Emerging Technologies Other Renewable Initiatives accomplish its overall mission of The Energy Policy Act of 2005 As the Renewable Energy Fund and developing Alaska’s communities. established new authorities for the Emerging Energy Technology Fund Particular focus will be given to the Commission’s Energy Program with an proceed, the Commission strives to collaborative efforts of the emphasis on alternative and renewable support their success. In 2011, the Commission’s Federal and State energy projects. Although the 2005 Commission funded $300,000 toward Memorandum of Understanding (MOU) Energy Policy Act did not include Renewable Energy Technical and the Sustainable Rural Communities appropriations, the Commission is Assistance, which resulted in match initiative. Strategies and next steps for expected to carry out the intent of the funding from the Department of Energy this effort will be formulated as the Act through a portion of its Energy and toward the newly established State Denali Commission leads this unique Water Appropriation funding. To date, Technical Assistance Response Team collaborative effort. No funding is the Commission has co-funded a (START). The START effort provides dedicated to this activity. number of renewable projects and each technical assistance to a select number year new initiatives are considered. of communities to help assess energy After providing seed funding toward the needs, deal with barriers and identify initiative, in 2007, the State of Alaska funding options. To keep with the 2005

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direction to fund renewable and Legacy Program (Bulk Fuel/RPSU) projects range from one or two mooring alternative energy, the FY 2012 Work Due to the nature of the due diligence points to secure a barge, to small dock Plan includes $300,000 toward this requirement of energy projects, seasonal structures, depending on community effort in 2012. The FY 2011 Work Plan logistics in Alaska and funding size and barge operation characteristics. outlines a strategy to balance the Energy restrictions (i.e. TAPL funds may only The value of these structures lies in Program in both legacy and renewable be used for bulk fuel projects)—a project improved fuel/freight transfer components, providing up to $2.4 may not progress as quickly as another. operations and improved worker and million of available program funds Given the late timing of funding in FY environmental safety. The Commission and the U.S. Army Corps of Engineers specifically toward the emerging 2011, summer construction grants are (USACE) will continue to work through technology program pending state not anticipated. A final project list will the prioritized list of barge landing and match. If match for this program is not be developed based on available funds, mooring point projects which were provided, this funding shall be project readiness, available match and identified in a formal analysis reallocated to legacy projects. other due diligence. Final project lists conducted in FY 2009 and FY 2010. The are provided to EAC for feedback prior FY 2012 Program & Project Policy Issues universe of need for the first generation to final grant execution. of projects is in the range of The approved FY 2008 Denali Transportation $40,000,000. Commission Policy Document requires The TAC met on January 26–27, 2012 Section 309 of the Denali Commission and prioritizes cost share match for to select waterfront projects and will Act 1998 (amended), created the funded projects. In implementing this meet in early summer to select road Commission’s Transportation Program, policy, 10%, match was required in FY project priorities for FY 2012. Final including the Transportation Advisory 2010 and FY 2011. In FY 2012 new project approvals and funding amounts Committee. The advisory committee is statutory match is required in the have been approved by the Federal Co- composed of nine members appointed amounts of 50% for non-distressed and Chair and are available on the 20% for distressed communities and by the Governor of the State of Alaska Commission’s Web site. only applies toward construction including the Chairman of the Denali As shown in the FY 2012 Funding projects using Energy and Water Commission; four members who Table, the estimate for FHWA funding Appropriation funding. In future represent existing regional native ranges from $0 to $24,700,000. In 2011 funding years, the Commission will corporations, native nonprofit entities, continuing resolution language, the U.S. require consistent match for energy or tribal governments, including one Secretary of Transportation was projects funded with other funding member who is a civil engineer; and assigned the responsibility by Congress (TAPL, RUS). For FY 2012 funding, the four members who represent rural to identify FHWA projects and programs Commission will apply the 10% match Alaska regions or villages, including one that were sufficiently funded (i.e. for RUS and TAPL funding and the 50% member who is a civil engineer. completed). In following this and 20% match requirements for Energy The Transportation Program assignment, the Secretary determined and Water Appropriation funding. addresses two areas of rural Alaska that the Denali Access Program was transportation infrastructure: Roads and sufficiently funded and $13,300,000 in Sustainability Policy waterfront development. There is FY 2011 FHWA funding was assigned to consensus among agencies and All energy construction grants will the Alaska Department of communities that the program is Transportation. At the request of the proceed after business plans are successfully addressing improvements reviewed and approved by Commission. Denali Commission Inspector General, to local and regional transportation GAO is presently considering whether FY 2012 Project Selection Process systems. This is largely a function of the the Secretary had the authority to make TAC’s success at project selection and this determination regarding the Denali The Energy Advisory Committee monitoring, and the success of the Access Program. At the time of drafting (EAC) provides guidance to program’s project development partners. this 2012 annual Work Plan, the GAO Commissioners and staff on the The program is generally a Comptroller General has not yet issued program, and is comprised of members competitively-bid contractor or an opinion. Therefore, depending upon involved in energy development in materials-based project opportunity the forthcoming opinion the Alaska. Members include grounded in Title 23 CFR. These strict Commission may receive no FHWA representatives of Associated General project development and construction funding or potentially receive both FY Contractors, Alaska AFL–CIO, guidelines have presented some 2011 and FY 2012 FHWA funding— Department of Energy National challenges to the Commission’s ability totaling $24,740,000. Renewable Energy Lab, the University of to respond quickly to targets of Alaska Institute of Northern opportunity, but they have also had the Joel Neimeyer, Engineering, USDA, Kotzebue Electric positive effect of ensuring project design Federal Co-Chair. Association and two public members and construction is executed at a [FR Doc. 2012–11936 Filed 5–16–12; 8:45 am] representing rural Alaska. The EAC professional level. The program operates BILLING CODE 3301–01–P provided general recommendations under a reimbursable payment system supporting the ongoing priority for that requires local and program partner funding Bulk Fuel/Rural Power System sponsors to pay close attention to ELECTION ASSISTANCE COMMISSION Upgrade planning, design and accounting procedures prior to their construction, providing match funding payments to contractors and vendors. Proposed Information Collection; for the emerging energy technology This system helps ensure project Election Administration in Urban and program and for renewable energy payments are eligible when submitted to Rural Areas; Comment Request regional planning in coordination with the Commission. AGENCY: U.S. Election Assistance the Alaska Energy Authority’s initiative In FY 2012 the program will continue Commission (EAC). to meet statewide energy infrastructure its focus on barge landings and mooring ACTION: Notice. needs for all of the above. points in rural communities. These

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SUMMARY: On February 21, 2012, EAC [email protected] with Urban/Rural Affected Public (Respondents): Local published a notice in accordance with study as the subject line. Written governments that administer Federal Section 3506(c)(2)(A) of the Paperwork comments on the proposed information elections. Reduction Act of 1995. EAC announced collection can also be sent to the U.S. Affected Public: Local government. an information collection and sought Election Assistance Commission, 1201 Number of Respondents: 5,000. public comment on the provisions New York Avenue NW., Suite 300, Responses per Respondent: 1. thereof. In compliance with Section Washington, DC 20005, ATTN: Urban/ Estimated Burden Per Response: 30 3506(c)(2)(A) of the Paperwork Rural Study. minutes. Reduction Act of 1995, EAC announces Obtaining a Copy of the Survey: To Estimated Total Annual Burden an information collection and seeks obtain a free copy of the survey: (1) Hours: 1,500 hours. public comment on the provisions Access the EAC Web site at Frequency: One-time data collection. thereof. EAC, pursuant to 5 CFR www.eac.gov; (2) write to the EAC Mark A. Robbins, 1320.5(a)(iii), intends to submit this (including your address and phone Acting Executive Director, U.S. Election proposed information collection number) at U.S. Election Assistance Assistance Commission. (Election Administration in Urban and Commission, 1201 New York Avenue [FR Doc. 2012–11919 Filed 5–16–12; 8:45 am] Rural Areas) to the Director of the Office NW., Suite 300, Washington, DC 20005, BILLING CODE 6820–KF–P of Management and Budget for ATTN: Urban/Rural Study. approval. The Election Administration FOR FURTHER INFORMATION CONTACT: in Urban and Rural Areas survey asks Karen Lynn-Dyson or Shelly Anderson DEPARTMENT OF ENERGY election officials questions concerning at (202) 566–3100. voter outreach and election personnel. National Coal Council EAC will conduct the survey as a way SUPPLEMENTARY INFORMATION: to obtain data and information for a Title and OMB Number: Election AGENCY: Department of Energy. mandatory report to Congress as Administration in Urban and Rural ACTION: Notice of open meeting. stipulated under HAVA 241 (B)(15), Areas; OMB Number Pending. which requires EAC to study ‘‘[m]atters Summary of the Collection of SUMMARY: This notice announces a particularly relevant to voting and Information: The survey requests meeting of the National Coal Council administering election in rural and information at the local level concerning (NCC). The Federal Advisory Committee urban areas.’’ Further, Section 202(3) of the following categories: Act (Pub. L. 92–463, 86 Stat. 770) HAVA authorizes EAC to conduct Background: (1) Number of years requires that public notice of these studies and to carry out other duties and served as an election official; type of meetings be announced in the Federal activities to promote the effective appointment; (2) number of registered Register. administration of Federal elections. voters; (3) jurisdiction described as DATES: Thursday, June 7, 2012, 10:00 DATES: Written comments must be urban or rural; (4) jurisdiction required a.m. to 3:00 p.m. submitted on or before 4:00 p.m. EDT on to provide language assistance; (5) office ADDRESSES: Crowne Plaza Chicago June 18, 2012. have full responsibility for elections in O’Hare, 5440 North River Road, Comments: Public comments are the jurisdiction; (6) alternative forms of Rosemont, Illinois 60018. invited on: (a) Whether the proposed voting allowed in the jurisdiction FOR FURTHER INFORMATION CONTACT: Dr. collection of information is necessary (absentee—excuse required, no-excuse Robert J. Wright, U.S. Department of for the proper performance of the absentee, early voting, all vote-by-mail). Energy; 4G–036/Forrestal Building, functions of the agency, including Voter Outreach: (7) type of voter 1000 Independence Avenue SW., whether the information shall have outreach provided to the public; (8) Washington, DC 20585–1290; practical utility; (b) the accuracy of the outreach efforts coordinated with third- Telephone: 202–586–0429. agency’s estimate of the burden of the party/civic organizations; type of voter SUPPLEMENTARY INFORMATION: proposed information collection; (c) outreach coordinated; type of Purpose of Meeting: The Coal Policy ways to enhance the quality, utility, and organizations with which the Committee of the National Coal Council clarity of the information to be jurisdiction works; (9) voter outreach will review the draft of a report collected; and (d) ways to minimize the activities that focus on specific groups; requested by Secretary of Energy Steven burden of the information collection on (10) cost of voter outreach efforts in Chu in a letter dated October 28, 2011, respondents, including through the use 2010; (11) estimated cost of voter to the Council. of automated collection techniques or outreach efforts in 2012; (12) how voter other forms of information technology. outreach efforts were paid for; (13) ease Tentative Agenda Additional Information: Please note or difficulty of engaging in voter ■ Review and action on the report. that the Office of Management and outreach; (14) reasons outreach may ■ Adjourn. Budget (OMB) has up to 60 days to have been difficult. Public Participation: The meeting is approve or disapprove the information Personnel: (15) number of paid full- open to the public. If you would like to collection, but may respond after 30 time, part-time, and temporary staff in file a written statement with the days. Comments on the proposed 2010; (16) number of poll workers used Committee, you may do so either before information collection should be in 2010; (17) number of paid full-time, or after the meeting. If you would like submitted to OMB within 30 days of part-time, and temporary staff in 2012; to make oral statements regarding any this notice. Comments should be sent to (18) number of poll workers used in potential items on the agenda, you the attention of Sharon Mar, Desk 2012; (19) poll worker pay; (20) sources should contact Dr. Robert J. Wright, Officer for the U.S. Election Assistance for recruiting poll workers; (21) ease or 202–586–0429 or Commission, Office of Information and difficulty of obtaining poll workers; (22) [email protected] (email). You Regulatory Affairs, Office of reasons obtaining poll workers may must make your request for an oral Management and Budget, Washington, have been difficult; (23) jurisdiction statement at least 5 business days before DC 20503. Comments sent to OMB offer split shifts for poll workers; (24) the meeting. Reasonable provision will should also be sent to EAC at additional comments. be made to include the scheduled oral

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statements on the agenda. The Renewable Energy, Forrestal Building, stories) multifamily residential Chairperson of the Committee will Mail Station EE–2J, 1000 Independence buildings and hotel, motel, and other conduct the meeting to facilitate the Avenue SW., Washington, DC 20585– transient residential building types of orderly conduct of business. Public 0121, (202) 287–1874, email: any height as commercial buildings for comment will follow the 10-minute [email protected]. For legal energy code purposes. Low-rise rule. issues contact Kavita Vaidyanathan, residential buildings include one- and Minutes: The NCC will prepare U.S. Department of Energy, Office of the two-family detached and attached meeting minutes within 45 days of the General Counsel, Forrestal Building, buildings, duplexes, townhouses, row meeting. The minutes will be posted on GC–71, 1000 Independence Avenue houses, and low-rise multifamily the NCC Web site at http:// SW., Washington, DC 20585, (202) 586– buildings (not greater than three stories) www.nationalcoalcouncil.org/. 0669, email: such as condominiums and garden Dated: Issued at Washington, DC, on May [email protected]. apartments. If the Secretary determines that the 11, 2012. SUPPLEMENTARY INFORMATION: revision would improve energy LaTanya R. Butler, I. Introduction efficiency then, not later than 2 years Acting Deputy Committee Management A. Statutory Requirements after the date of the publication of the Officer. B. Background affirmative determination, each State is C. Public Comments on the Preliminary [FR Doc. 2012–11977 Filed 5–16–12; 8:45 am] required to certify that it has compared BILLING CODE 6450–01–P Determination D. DOE’s Final Determination Statement its residential building code regarding II. Discussion of Changes in the 2012 IECC energy efficiency to the revised code and made a determination whether it is DEPARTMENT OF ENERGY A. Changes in the 2012 IECC That Increase Energy Efficiency appropriate to revise its code to meet or [Docket No. EERE–2011–BT–DET–0057] B. Changes in the 2012 IECC That Decrease exceed the provisions of the successor Energy Efficiency code. (42 U.S.C. 6833(a)(5)(B)) State RIN 1904–AC59 C. Changes in the 2012 IECC That Have an determinations are to be made: (1) After Unclear Impact on Energy Efficiency public notice and hearing; (2) in writing; Updating State Residential Building D. Changes in the 2012 IECC That Do Not Energy Efficiency Codes Affect Energy Efficiency (3) based upon findings included in III. Filing Certification Statements With DOE such determination and upon evidence AGENCY: Office of Energy Efficiency and A. State Determinations presented at the hearing; and (4) Renewable Energy, Department of B. Certification available to the public. (See, 42 U.S.C. Energy. C. Request for Extensions 6833(a)(5)(C)) In addition, if a State ACTION: Notice of final determination. IV. Regulatory Analysis determines that it is not appropriate to A. Review Under Executive Order 12866 revise its residential building code, the SUMMARY: The Department of Energy B. Review Under the Regulatory Flexibility State is required to submit to the (DOE or Department) has determined Act Secretary, in writing, the reasons, which that the 2012 edition of the International C. Review Under the National Environmental Policy Act of 1969 are to be made available to the public. Code Council (ICC) International Energy D. Review Under Executive Order 13132, (See, 42 U.S.C. 6833(a)(5)(C)) Conservation Code (IECC) (2012 IECC or ‘‘Federalism’’ B. Background 2012 edition) would achieve greater E. Review Under the Unfunded Mandates energy efficiency in low-rise residential Reform Act of 1995 The ICC’s IECC establishes a national buildings than the 2009 IECC. Upon F. Review Under the Treasury and General model code for energy efficiency publication of this affirmative final Government Appropriations Act of 1999 requirements for buildings. In 1997, the determination, States are required to file G. Review Under the Treasury and General Council of American Building Officials certification statements to DOE that they Government Appropriations Act of 2001 (CABO) was incorporated into the ICC H. Review Under Executive Order 13211 and the MEC was renamed to the IECC. have reviewed the provisions of their I. Review Under Executive Order 13175 residential building code regarding A previous Federal Register notice, 59 energy efficiency and made a I. Introduction FR 36173, July 15, 1994, announced the Secretary’s determination that the 1993 determination as to whether to update A. Statutory Requirements their code to meet or exceed the 2012 MEC increased energy efficiency IECC. Additionally, this Notice provides Title III of the Energy Conservation relative to the 1992 MEC for residential guidance to States on how the codes and Production Act, as amended buildings. Similarly, another Federal have changed from previous versions, (ECPA), establishes requirements for the Register notice, 61 FR 64727, December and the certification process. Building Energy Standards Program. 6, 1996, announced the Secretary’s (42 U.S.C. 6831–6837) Section 304(a) of determination that the 1995 MEC is an DATES: Certification Statements by the States must be provided by May 17, ECPA provides that when the 1992 improvement over the 1993 MEC. 2014. Model Energy Code (MEC), or any Federal Register notice 66 FR 1964, successor to that code, is revised, the January 10, 2001, simultaneously ADDRESSES: Certification Statements Secretary must determine, not later than announced the Secretary’s must be addressed to the Buildings 12 months after the revision, whether determination that the 1998 IECC is an Technologies Program-Building Energy the revised code would improve energy improvement over the 1995 MEC and Codes Program Manager, U.S. efficiency in residential buildings and the 2000 IECC is an improvement over Department of Energy, Office of Energy must publish notice of the the 1998 IECC. Federal Register notice Efficiency and Renewable Energy, determination in the Federal Register. 76 FR 42688, July 19, 2011, announced Forrestal Building, Mail Station EE–2J, (42 U.S.C. 6833(a)(5)(A)) The the Secretary’s determination that the 1000 Independence Avenue SW., Department, following precedent set by 2003 IECC was not a substantial Washington, DC 20585–0121. the ICC and the American Society of improvement over its predecessor, FOR FURTHER INFORMATION CONTACT: Heating, Refrigerating and Air- while the 2006 and 2009 editions were Michael Erbesfeld, U.S. Department of Conditioning Engineers (ASHRAE) a substantial improvement over its Energy, Office of Energy Efficiency and considers high-rise (greater than three predecessors. A map depicting the

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status of State residential building codes result in a significant improvement in Specifically, CFEC stated that ‘‘DOE is available at: http:// energy efficiency as compared to should recognize other prescriptive wall www.energycodes.gov/states/maps/ previous versions of the IECC. configurations based on equivalent residentialStatus.stm. Specifically, RECA stated ‘‘first and energy performance, calculated from the On October 19, 2011, Federal Register foremost, we fully agree with the least restrictive of either the prescriptive 76 FR 64924 announced the Secretary’s Department’s conclusion that the 2012 R-value table [Table R402.1.1] or U- preliminary determination that the 2012 IECC represents a ‘significant factor table [Table R402.1.3] in the edition of the IECC should receive an improvement’ overall, as compared to IECC.’’ (CFEC, No. 3 at p. 2) In response affirmative determination under Section the 2009 IECC.’’ (RECA, No. 1 at p. 2) to this comment, DOE notes that the 304(a) of ECPA. A thirty-day public NRDC stated ‘‘NRDC agrees with and content of the 2012 IECC is the result of comment period concluded on supports the Department’s preliminary the ICC process. DOE also notes that this November 18, 2011. determination that the 2012 IECC saves is again a matter of implementation energy compared to the 2009 IECC.’’ materials rather than a subject for this C. Public Comments on the Preliminary (NRDC, No. 2 at p. 1) CFEC stated ‘‘we Determination determination, which is focused solely do not disagree with the overall on whether the 2012 IECC improves DOE received four sets of public determination contained in the Notice energy efficiency relative to the 2009 comments on the preliminary * * *’’ (CFEC, No. 1 at p. 2) IECC. One of the main pieces of support determination for the 2012 IECC. A general comment from RECA and a material DOE does provide is the Comments were received from the recommendation from NRDC expressed REScheck software and alternative U- Responsible Energy Code Alliance support for DOE efforts in adoption of factors are handled in REScheck. (RECA), the Natural Resources Defense and compliance with model energy CFEC also commented that DOE Council (NRDC), and the Coalition for codes. RECA also expressed support for should ‘‘[r]ecognize in the Fair Energy Codes (CFEC), and DOE’s intent to make the state Determination Statement that using a Pilkington North America (PNA)/ACG certification process more transparent. U = 0.061 in calculations in accordance Glass Company North America (AGC). Specifically, RECA commented ‘‘we are with the Total U However, DOE notes that PNA/AGC’s also encouraged by the Department’s A alternative in Climate comment was received late. Although recent efforts in promoting adoption and Zone 4 and 5 results in equivalent the comment was filed late this final compliance with the model energy energy efficiency performance as it is determination is not contrary to any of codes nationwide, and support the equivalent to the U-factor derived from the issues raised in the comment. Department’s plans in the preliminary the prescriptive table.’’ (CFEC, No. 4 at • RECA provided three general determination to make compliance with p. 2) In response, DOE acknowledges comments of support for the certification statements more that there are potential differences in preliminary determination on the 2012 transparent.’’ (RECA, No. 3 at p. 2) the U-factor and R-value tables based on IECC, three specific comments on the NRDC stated ‘‘NRDC urges DOE to construction details used in actual preliminary determination, and a list of continue to take steps to promote the buildings for the 2012 IECC, but DOE recommended next steps. development, adoption, and notes that CFEC’s comment takes issue • NRDC provided two general implementation of strong building with the content of the 2012 IECC. As comments supporting DOE’s energy codes, including issuing timely noted above, the purpose of this determination efforts and DOE’s code determinations.’’ (NRDC, No. 4 at determination is to compare the latest preliminary determination of the 2012 p. 2) version of the IECC with the previous IECC, and a recommendation that DOE RECA also expressed agreement with version and to determine if the latest continue its efforts in development, the Department that the thermal version improves the level of energy adoption, and implementation of strong envelope requirements of the IECC have efficiency in residential buildings over building energy codes. been improved in nearly every aspect in the previous version. • CFEC provided general support for the 2012 edition. (RECA, No. 4 at p. 3) CFEC also commented that DOE the conclusion of the preliminary RECA also stated that this was not just should ‘‘[r]ecognize in the determination, but also raised five a matter of better windows and more Determination Statement that a specific points regarding the treatment insulation. The 2012 IECC also includes performance approach that accounts for of wood products in the 2012 IECC. more efficient ducts and whole building equipment which is more efficient than Overall, a total of 18 individual leakage testing. DOE notes that these federally mandated minimums may comments were received. These aspects of the 2012 IECC were discussed result in equivalent or better energy eighteen comments may be divided into in the preliminary determination in the efficiency performance than is required 6 major categories: section entitled ‘‘Discussion of Changes by the IECC 2012.’’ (CFEC, No. 5 at p. (1) Support and Agreement—8 in the 2012 IECC Compared with the 3) DOE notes that CFEC’s comment comments 2009 IECC Summary’’ and again under takes issue with the contents of the 2012 (2) Alternate U-factors, Codes, and ‘‘Changes in the 2012 IECC that are IECC. Again, this comment is beyond Approaches—3 comments Estimated to Increase Energy the scope of the determination as (3) Recommendations—3 comments Efficiency’’. DOE accepts this comment required under ECPA. (4) SHGC requirements in Climate Zone as already discussed in the preliminary 4—1 comment determination. The discussion of Recommendations (5) Performance Path—2 comments changes in the 2012 IECC is also RECA commented that ‘‘RECA (6) DOE’s 30% Improvement Goal for included in today’s final determination. encourages the Department to move the 2012 IECC—1 comment Alternate U-factors, Codes, and quickly to finalize this determination in Support and Agreement Approaches order to start the two-year period for In their general comments, RECA, CFEC made 3 comments related to state compliance.’’ (RECA, No. 7 at p. 8) NRDC, and CFEC all expressed alternate U-factors, Codes, and RECA also provided a series of agreement with DOE’s conclusion that Approaches they felt should be recommended next steps, including: the 2012 IECC on the whole, would included in the determination. • Follow up on state requirements;

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• Produce support materials and aspects of this requirement. However, heating as a clarification of the intent of copies of code books to promote state DOE’s determinations of energy savings the 2009 IECC.’’ (RECA, No 5. at p. 4) adoption of the 2012 IECC; on the model energy codes are focused In response, DOE believes that the • Update compliance materials strictly on whether or not the new baseline assumption of a heat pump for (including REScheck) to reflect the 2012 version of the code saves energy when homes using electric resistance heating IECC; and compared to the previous version and will be harder for homes with electric • Continue to offer incentives for these considerations are therefore not resistant heating to comply with under leading states; relevant to this determination. DOE the whole building compliance path in • Set the 2012 IECC as the standard/ stands by its statement that it is the 2012 IECC than it would be for that baseline for future codes activities. ‘‘unclear’’ if this requirement saves same home under the 2009 IECC. RECA (RECA, No. 8 at p. 8) energy in climate zone 4. Whether or also commented that they view this NRDC made similar recommendations not this change does save energy change as a clarification to the that DOE ‘‘continue to take steps to depends greatly on other assumptions ‘‘traditional use of a heat pump as the promote the development, adoption, made about the how the home is baseline in the Standard Reference and implementation of strong building designed and operated and the specific Design for electric heated homes’’. DOE energy codes, including issuing timely location of the home in climate zone 4. agrees that the 2006 IECC used heat code determinations.’’ (NRDC, No. 4 at These assumptions are not part of pumps as the baseline. However, the p. 2) DOE agrees with both RECA’s and today’s determination, but would be on heat pump baseline was not included in NRDC’s recommendations and notes a particular home. the 2009 IECC. DOE’s role in that it is already planning to follow up determinations is to compare the latest Performance Path with the states on their obligations version of the IECC with the previous under the determination process once RECA commented that version and to determine if the latest this determination is finalized. Once ‘‘improvements to the assumptions in version improves the level of energy this determination is finalized, the 2012 the performance path will lead to more efficiency in residential buildings over IECC will serve as the baseline for future energy efficiency and better the previous version. Therefore, DOE’s code activities at DOE. DOE routinely enforcement, and as such, these final determination is based on the produces and updates support materials improvements should be viewed as comparison between the 2009 IECC and for new codes and these materials can positive improvements in energy the 2012 IECC. be found at www.energycodes.gov. efficiency.’’ (RECA, No. 5 at p. 4) RECA CFEC also commented that DOE discussed two specific parts of the SHGC Requirements in Climate Zone 4 should ‘‘Recognize in the Determination performance path—interior shading Statement a performance approach that DOE received a comment supporting assumptions and the baseline heating calculates energy savings when less the change to the SHGC requirements in system for electrically heated homes. than 15% of wall area contains climate zone 4. Specifically, RECA Specifically, RECA asserted that the windows.’’ (CFEC, No. 6 at p. 3) DOE supported the requirement for a new treatment of interior shading in the assumes the basis of this comment is the maximum solar heat gain coefficient performance path is an improvement. fact that the Simulated Performance (SHGC) of 0.40 for glazed fenestration in DOE acknowledges that there were Alternative in the 2012 IECC does not climate zone 4 of the 2012 IECC, and changes in the performance path and in provide ‘‘credit’’ for homes with less disagrees with the Department’s fact does discuss these changes in the than 15% of conditioned floor area in preliminary conclusion that energy preliminary determination. The change windows. In response, DOE notes that efficiency improvement from 0.40 SHGC in treatment of interior shading does CFEC’s comment takes issue with the in climate zone 4 is ‘‘unclear.’’ (RECA, represent the latest research on this content of the 2012 IECC. DOE’s role in No. 6 at p. 5) RECA continued their topic. DOE also acknowledges that determinations is to compare the latest comment by stating ‘‘While we agree properly quantifying the impact of version of the IECC with the previous with the Department that the 0.40 SHGC interior shading is important for the version and to determine if the latest requirement in climate zone 4 could performance approach. However, as version improves the level of energy increase heating load in some cases, stated in the preliminary determination efficiency in residential buildings over cooling loads will also be reduced. and again in today’s final determination, the previous version. DOE also notes Depending on the assumptions made DOE also believes that the true impact that the provisions in the 2012 IECC and given the limits on typical building of this change on homes remains with regards to window area in the performance analysis, the direct nuanced and difficult to generalize, but performance approach are identical to calculated energy savings impact from is expected to be small. DOE notes that those in the 2009 IECC. this requirement is likely small and impact of this particular assumption varies from location to location. depends on a number of other DOE’s 30% Improvement Goal for the However, this requirement is an parameters of the building being 2012 IECC improvement based on the other energy modeled, including (but not limited to): CFEC commented that ‘‘DOE should efficiency benefits it brings. The specific areas, distribution, and explicitly recognize in the Specifically, the new provision yields orientation of glazing in the home in Determination Statement that the use of savings from lower peak electric question; whether the home has greater levels of insulation in Climate demands and reduced energy use during overhangs and other exterior shadings; Zone 3 above R13 is not necessary to peak periods, may allow for smaller air how internally dominated the home is achieve the 30% improvement goal that conditioners to be installed, and (a function of surface-to-volume ratio, DOE has established. As the proponent potentially increased occupant comfort aspect ratio, etc.); and the ratio of of IECC code change EC13–09/10 Parts on hot sunny days.’’ DOE agrees with heating to cooling loads in the specific I and II, to overhaul the residential RECA that lower peak electric demand, location of the home. energy provisions of the IRC and IECC, reduced energy use during peak periods, RECA also commented that ‘‘the DOE did not propose to change Climate reduced cooling equipment size, and the baseline assumption for electric heating Zone 3 from R13 to either R20 or R13+5 potential for increased occupant comfort of an electric heat pump is not so much ci.’’ (CFEC, No. 2 at p. 2) In response, on hot summer days are all significant a ‘‘penalty’’ on electric resistance DOE notes that CFEC’s comment takes

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issue with the content of the 2012 IECC. • Skylight definition change determined that every change in the DOE’s role in determinations is to • Penalizing electric resistance heating code’s table represents an improvement compare the latest version of the IECC in the performance compliance path in efficiency. Table 2 below shows the with the previous version and to • Fireplace air leakage control increase in required thermal resistance determine if the latest version improves • Insulating covers for in-ground spas for each building component type the level of energy efficiency in • Baffles for attic insulation weighted by climate zone. residential buildings over the previous Changes that appear to decrease For the fenestration U-factor, the code version. residential efficiency in some situations has increased the required thermal D. DOE’s Final Determination Statement include the following. resistance by an average of 26.7%. In • Steel-framed wall insulation climate zone 1, Table R402.1.1 appears The 2012 IECC has a substantial • Air barrier location to revert from a required U-factor of 1.2 variety of revisions compared to the to NR (no requirement). This, however, Changes whose effect is unclear: 2009 IECC. Most of these revisions should have no effect on the energy • appear to directly improve energy Fenestration SHGC requirement in efficiency of the code because the U- efficiency that, on the whole, would climate zone 4 factor of a minimally efficient single- • result in a significant improvement in Interior shading assumptions in the pane window meets the requirement of efficiency to homes built to the code. performance compliance path 1.2. Seen in this light, the change to NR Therefore, the Department concludes All of the changes that are estimated is really a clarification, rather than an that the 2012 edition of the IECC to positively or negatively impact actual change. The U-factor receives an affirmative determination energy efficiency are discussed in the requirements for skylights in the 2012 under Section 304(a) of ECPA. following text. IECC would reduce allowable heat loss II. Discussion of Changes in the 2012 A. Changes in the 2012 IECC That Are through skylights an average of 12.6% IECC Compared With the 2009 IECC Estimated To Increase Energy Efficiency compared to the 2009 IECC. Summary For glazed fenestration the allowable Building Thermal Envelope solar heat gain coefficient (SHGC) has The 2012 IECC appears to improve Improvements been lowered, reducing solar heat gain residential energy efficiency with by 17% in the cooling-dominated respect to the 2009 IECC. Based on Table R402.1.1 which specifies climate zones (1–3). DOE’s analysis, a preponderance of prescriptive envelope requirements, has major energy efficiency improvements been extensively modified in the 2012 Four climate zones (2 through 5) were more than offset a small number of IECC compared to the 2009 IECC. This affected by more stringent insulation changes which have unclear or negative table represents the code’s primary requirements in ceilings. Required R- impacts on energy efficiency. The major regulation of a home’s envelope thermal values increased by 27% to 29% in changes that are estimated to improve resistance, or the resistance of the these zones. However, accounting for energy efficiency in new homes built to ceilings, walls, windows, and floors to the thermal bridging effects of typical comply with the code in most climate the transfer of heat into or out of the wood framing members, DOE has zones include: home. The criteria are expressed as preliminarily determined that the • either R-values (Btu/h-ft2-F), which changes in the code represent a Building thermal envelope weighted average increase of 12.2% in improvements quantify a building component’s Æ resistance to heat flow, or U-factors the thermal resistance of ceilings. Increases in prescriptive insulation 2 levels of walls, roofs and floors (h-ft -F/Btu), which are the inverse of R- For wood frame walls, the code Æ Decrease (improvement) in U-factor values and represent a component’s allows a choice in some climate zones allowances for fenestration thermal conductance. A higher R-value of a single value for insulation in the Æ Decrease (improvement) in or a lower U-factor represents an cavity between wall studs, or two allowable Solar Heat Gain efficiency improvement. Table R402.1.1 values: One for cavity insulation and Coefficient (SHGC) for fenestration also includes requirements for glazed one for additional continuous insulation in warm climates fenestration solar heat gain coefficients applied to the interior or exterior of the • Infiltration control: Mandated whole- (SHGC) in the southern and central wall. Accounting for thermal bridging house pressure test with strict climate zones. In a cooling-dominated effects, and choosing the least thermally allowances for air leakage rates climate, a lower SHGC will almost resistive of the two options, the 2012 • Wall insulation when structural always reduce a home’s annual energy code is estimated to improve thermal sheathing is used consumption. resistance of wood-frame walls an • Ventilation fan efficiency Table 1 below shows the changes in average of 13.7%. Mass wall (e.g., • Lighting—Increased fraction of lamps the code’s required R-values and U- concrete, concrete block, log) R-value required to be high-efficacy factors by climate zone. Additionally, requirements increased by an average of • Air distribution systems—leakage Table R402.1.3 has an improvement for 33.4%. Basement wall and crawl space control requirements fenestration U-factor in climate zone 1 wall R-values increased by 14.5% and • Hot water pipe insulation and length from 1.20 in the 2009 IECC to 0.50 in 17.6%, respectively. requirements the 2012 IECC. DOE has preliminarily BILLING CODE 6450–01–P

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BILLING CODE 6450–01–C The 2012 IECC specifies that expected to save energy, and the insulation R-values conform to the mandatory test will likely result in TABLE 2—NATIONAL AVERAGE IN- requirements of Table R402.1.1 even if improved energy efficiency in homes CREASE IN THERMAL RESISTANCE the insulation must be compressed to fit that would have had higher leakage FOR LOWEST REQUIRED INSULATION within the available cavity. This clause rates as a result of leaks that would not LEVEL BY BUILDING COMPONENT primarily affects some nominal R–19 be detected by visual inspection. fiberglass batts that are designed for Mechanical ventilation systems can Increase in floor and/or ceiling applications where be used to provide fresh air from the thermal the available cavity is greater than the outdoors to a home. The 2009 IECC does resistance of × Building component required 5.5 inches typically available in a 2 6 not require any mechanical ventilation. insulation wall. However, the 2012 edition has no Section R403.5 of the 2012 IECC refers (percent) prescriptive requirements that exactly to the 2012 International Residential require R–19 in wall cavities, so it is Code and International Mechanical Fenestration ...... 26.7 expected that there is no direct impact Code which, in tandem with the 2012 Skylights ...... 12.6 on energy savings. IECC, require that a mechanical Ceiling ...... 18.2 Infiltration Control ventilation system meet these Wood Frame Wall ...... 13.7 requirements or other approved means 1 Mass Wall ...... 33.4 Section 402.4.1.2 contains a new of ventilation in new homes. Basement Wall 1 ...... 14.5 provision for a mandatory whole-house Crawl Space Wall 1 ...... 17.6 Wall Insulation When Structural pressure test to determine the envelope Sheathing Is Used 1 There are two R-value options in the air leakage rate (the test was optional in IECC. The first R-value option is used for this the 2009 IECC). The maximum Footnote h to Table R402.1.1 allows comparison. For mass walls, this first value allowable air leakage rate is 5 air certain reductions in the required R- applies when less than half of the insulation is on the interior of the mass wall, the case for changes/hour when tested at a pressure value of continuous insulation on walls which the code allows a greater reduction in difference of 50 Pascals (5 ACH50) in that use structural sheathing (e.g., required R-value due to the beneficial effects climate zone 1 and climate zone 2; and plywood, OSB) for shear bracing. The of thermal mass. The second number is more 3 air changes/hour (3 ACH50) in climate footnote is relevant only when there is similar to wood frame wall requirements. For basement and crawl space walls, this first zones 3–8. The 2009 IECC specified a a mixture of structural and insulating value applies for continuous insulation on the maximum of 7 ACH50 when the sheathing on the wall(s). The 2009 IECC interior or exterior of the wall, whereas the optional test was used, or directed the states: ‘‘First value is cavity insulation, second value is for insulation in cavities be- building official to inspect the envelope second is continuous insulation, so tween studs or furring strips. In this case the two values represent approximately similar against a detailed checklist when the ‘‘13+5’’ means R–13 cavity insulation overall thermal resistance. test was not used. The lower allowed plus R–5 insulated sheathing. If leakage rate of the 2012 IECC is structural sheathing covers 25 percent

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or less of the exterior, insulating efficiency improvements elsewhere in insulated unless they have sufficiently sheathing is not required in the the home. This change also addresses an low volume as defined by a combination locations where structural sheathing is aspect of the 2009 IECC under which of their length (measured from the tank used. If structural sheathing covers the use of high-efficacy lamps is not or distribution manifold to the point of more than 25 percent of exterior, specified when a building achieved use) and diameter. This change is structural sheathing shall be compliance via the simulated expected to reduce the amount of hot supplemented with insulated sheathing performance compliance path. This is water that cools off in the pipes and is of at least R–2.’’ expected to improve the energy savings thus wasted as users wait for The footnote has the effect of in the 2012 IECC by reducing lighting sufficiently warm water to reach the suspending the continuous R-value energy use. The 2012 IECC also added fixture. Also, for circulating hot water requirement for portions of the wall an option for calculating the high- systems, the required insulation has covered with structural sheathing, efficacy fraction based on a count of been increased from R–2 to R–3 and provided those portions represent 25% fixtures instead of individual lamps, a therefore should increase efficiency. A or less of the wall area. If structural change not expected to change overall final change in the 2012 IECC requires sheathing covers more than 25% of the efficiency. that piping insulation be protected from wall, the structural portions must be Section R404.1.1 in the 2012 IECC the elements. Although primarily a augmented with additional insulating contains a new provision that bans durability concern, this change may sheathing of at least R–2. The 2012 IECC continuously burning pilot lights on save energy by reducing the incidence states: ‘‘First value is cavity insulation, fuel-fired lighting. While the potential of damaged and/or missing insulation. second is continuous insulation, so energy savings are limited due to the Skylight Definition Change ‘‘13+5’’ means R–13 cavity insulation fringe application of this type of plus R–5 continuous insulation. If lighting, where applied, this rule would Previously, skylights were defined as structural sheathing covers 40 percent tend to increase energy savings by any glazed fenestration at less than 75 or less of the exterior, continuous cutting standby energy use of the pilot degrees from horizontal. That definition insulation R-value shall be permitted to light. has been changed in the 2012 IECC to be reduced by no more than R–3 in the be less than 60 degrees from horizontal. Air Distribution System locations where structural sheathing is The effect of this change is to classify used—to maintain a consistent total There are three key changes to more glazing as vertical fenestration sheathing thickness.’’ requirements for air distribution rather than skylights. Although the The 2012 IECC allows a larger fraction systems that improve energy efficiency: number of skylights in this slope range of the wall (40% rather than 25%) to • A change to section R403.2.2.1 that is small, because the U-factor contain reduced continuous insulation places a limit on air leakage from air requirements for vertical fenestration but, unlike the 2009 IECC, does not handlers. The change is to ensure that are more stringent than for skylights, allow elimination of continuous the air handler delivers the vast majority this change is expected to improve the insulation. The 2012 IECC specifies of the supply air downstream to the rest energy savings of the 2012 IECC. substantially more continuous of the distribution system. Electric Resistance Heating in the • Section R403.2.2 reduces maximum insulation layered on top of structural Performance Path sheathing when the structural fraction allowable levels of duct leakage in the exceeds the 40% threshold. It is distribution system compared to the Under the performance compliance estimated that the net effect is greater 2009 IECC (from 12 cfm per 100ft2 of path (Section R405), the 2012 IECC has overall efficiency. conditioned floor area to 4cfm/100ft2 for modified the reference design for tests done on completed buildings, and buildings with electric heating systems Ventilation Fan Efficiency from 6 to 4 cfm per 100ft2 for tests done that do not use a heat pump, requiring When installed to function as a at the rough-in stage of construction). that a heat pump be assumed in the whole-house ventilation system, the • Section R403.2.3 now specifies that standard reference design. Because of 2012 IECC specifies that mechanical building framing cavities may not be the efficiency of heat pumps as fans meet the following requirements: used as supply ducts or plenums, which compared to other electric heating • Range Hoods and In-line fans: 2.8 would eliminate the potential for air technologies, this code change is cubic feet per minute cubic feet per leaks into adjacent framing cavities and/ expected to increase the energy minute (cfm)/watt or attics, crawlspaces, or unheated efficiency of the reference design, which • Bathroom (10–90 cfm): 1.4 cfm/watt basements. This may also lessen the would have the effect of specifying that • Bathroom (>90 cfm): 2.8 cfm/watt chance of an unbalanced distribution the proposed design to be more energy Because the 2012 IECC places upper system. efficient if it is to comply via this limits on the energy requirements for DOE has determined that all of these section and the proposed design has an these fans where there were no such changes will increase the energy savings electric heating system that is less limits in the 2009 IECC, this change is of the 2012 edition of the IECC by efficient than a heat pump. Although expected to improve overall efficiency delivering more of the conditioned air to this affects only homes with electric in residences. where it is needed via a more efficient resistance heating, its effect is expected distribution system. to be an improvement in efficiency if Lighting such homes comply via the performance Hot Water Pipe Insulation and Length The requirement for high efficacy method. lamps has been increased from a Requirements minimum of 50% of the lamps in Section R403.4.2 contains new Fireplace Air Leakage Control permanently-installed fixtures to a specifications for noncirculating service The 2012 IECC specifies that all minimum of 75%. Further, the high hot water distribution systems that fireplaces have tight-fitting flue dampers efficacy lamp requirement has been should reduce energy losses from and gasketed doors (the 2009 IECC changed from prescriptive to ‘‘stranded’’ hot water and conduction of requires such only for wood-burning mandatory, meaning the specification heat out of the pipes. The 2012 IECC fireplaces). This is expected to result in cannot be lessened in trade for specifies that all such pipes to be very air-tight fireplaces which would

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improve a home’s air leakage B. Changes in the 2012 IECC That Are spacing are slightly more lax, reflecting characteristics. Therefore, this is Estimated To Decrease Energy the decreased thermal bridging effects, deemed an improvement in efficiency Efficiency compared with 16″ stud spacing. for homes with fireplaces. Steel-Framed Wall Insulation Because the baseline for comparison for 24″ stud spacing in the 2009 IECC is still In-Ground Spas The 2012 IECC modifies the IECC the general requirements that did not code’s tables of steel-framed wall U- distinguish based on stud spacing, these Section R403.9 has been updated to factor equivalences with wood-frame new requirements represent higher include in-ground spas under the walls of various R-values in such a way purview of the code, where previously increases in assembly U-factors than for that less efficient steel-framed walls will ″ only swimming pools were included. be deemed equivalent to a 16 stud spacing. Specifically, there is a The change effectively requires in- corresponding wood-frame wall in 9.1% increase in assembly U-factors ground spas to have insulating covers, many cases. In the 2009 IECC, there was among the various insulation options for which should lower energy losses. To no distinction between homes with R–13 and an 11.8% increase for R–21. the extent that these devices typically different steel stud spacing. In the 2012 The steel-wood framing equivalences of already have insulating covers this may IECC, there are now separate U-factor the 2009 IECC and the 2012 IECC are have limited impact in terms of equivalences for studs with 16″ and 24″ compared below in Table 3. In this efficiency. spacing. The 16″ stud spacing table, the first value is cavity insulation The 2012 IECC now specifies that log requirements have two categories that and the second is continuous insulation. walls meet the requirements of ICC–400, are directly comparable to the 2009 For example, R–13+5 is R–13 cavity a separate standard for log wall IECC requirements: Walls with wood- insulation plus R–5 continuous construction. Although this does not frame R-values of R–13 or R–21. insulation. change the thermal requirements, it may According to Table A3.3 of ASHRAE Note that while the steel/wood result in better quality construction of 90.1 2007, the 2009 IECC-required R- equivalences have changed such that factors represent an equivalent U-factor log walls, which would improve energy steel-stud walls may be less efficient for the wall assembly of 0.077 to 0.080 performance by reducing air leaks and than before in comparison to a Btu/hr-ft2-F, depending on the thermal bypasses. compliance option. This has been particular wood-frame R-value, the base R-value requirements (expressed in Baffles for Attic Insulation changed in the 2012 IECC to a range of 0.059–0.089 Btu/hr-ft2-F. The average terms of wood-frame walls) have Section R402.2.3 now requires a wind compliance option based on R–13 substantially increased in climate zones wash baffle for vented attics. For air- wood-frame walls represents a 5.4% 3, 4, 6, 7, and 8 which would result in permeable insulation, this should higher U-factor. For R–21 wood-frame energy savings in these zones even for improve the effective insulation value of walls, the steel frame options previously steel framed walls. Because the number the ceiling by reducing wind-driven air represented U-factors of 0.054, whereas of homes with external walls with steel movement and may in some cases in the 2012 code, they represent U- framing is small compared to wood- prevent blown-in insulation from being factors of 0.056, a 3.1% increase. frame homes, this change is not displaced by wind. Therefore, this is an Insulation equivalences in the 2012 expected to result in substantial overall improvement in efficiency for attics. IECC for steel walls with 24″ stud efficiency losses in zones 1, 2, and 5.

TABLE 3—COMPARISON OF STEEL-FRAME WALL REQUIREMENTS BETWEEN THE 2009 AND 2012 IECC

Steel Frame Spacing ...... 16″ stud spacing 24″ stud spacing

Wood-Frame Requirement R–13 ...... R–21 ...... R–13 ...... R–21. 2009 IECC Options ...... R–0+10 or R13+5 or R– R–13+10 or R–19+9 or R– R–13+5 or R–15+4 or R– R–13+10 or R–19+9 or R– 15+4 or R–21+3. 25+8. 21+3 or R–0+10. 25+8. 2012 IECC Options ...... R–0+9.3 or R–13+4.2 or R–0+14.6 or R–13+9.5 or R–0+9.3 or R–13+3 or R– R–0+14 or R–13+8.3 or R–15+3.8 or R–19+2.1 R–15+9.1 or R–19+8.4 15+2.4. R–15+7.7 or R–19+6.9 or R–21+2.8. or R–21+8.1 or R– or R–21+6.5 or R– 25+7.7. 25+5.9. Average U-factor (2009) 1 0.079 ...... 0.054 ...... 0.063 ...... 0.04. Average U-factor (2012) .... 0.083 ...... 0.056 ...... 0.07 ...... 0.045. Average U-factor Increase 5.4% ...... 3.1% ...... 9.1% ...... 11.8%. 1 Calculated using ASHRAE 90.1–2007 Table A3.4.

Air Barrier Location tend to reduce the effectiveness of the the common wall between dwelling insulation. The magnitude of impact for units of a multifamily or two-family The 2012 IECC changes Table this change, however, is expected to be structure was required to be air-sealed. R402.4.1.1 by removing a requirement minimal because an interior air barrier In the 2012 IECC, this requirement has that air-permeable insulation be located will still be effective at reducing air been removed. In practice, these inside the air barrier, allowing the movement through the envelope and common walls can provide a route for insulation to be outside of the air barrier because the 2012 IECC’s new mandate air leakage to the outdoors if they are in the exterior envelope construction. for a whole-house pressure test will coupled to attics, basements, By allowing air-permeable insulation to ensure that total air leakage through the crawlspaces, or other unconditioned be located outside the air barrier this building envelope be kept at a low rate. spaces. Because multifamily represent a change may result in increased levels of There is an additional change in the small fraction of low-rise residential outdoor air infiltration in the interstices 2012 IECC that may reduce the energy dwelling units (about 15%) and because of the insulation material. This would efficiency of the code. In the 2009 IECC, this change creates the potential for only

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an indirect air movement path, DOE IECC usually implies the use of ISF = 0.92 ¥ 0.21 C˙ SHGC does not consider this change to be windows with low-emissivity coatings The impact of this change on the significant. that have an SHGC of 0.4 or below even energy consumption of homes in the absence of a specific SHGC C. Changes in the 2012 IECC That Have complying via the performance path is requirement. Therefore, DOE expects an Unclear Impact on Energy Efficiency nuanced and difficult to generalize, but this change to have minimal impact is expected to be small. Its primary Fenestration SHGC in Climate Zone 4 either in terms of energy savings or impact is to modestly change the As presented in Table 1, the 2012 energy losses. relative importance of cooling- and IECC changes SHGC specifications for Interior Shading Assumptions in the heating-oriented energy-saving features. climate zone 4 from no requirement Performance Compliance Path D. Changes in the 2012 IECC That Do (NR) to 0.4. Because climate zone 4 Not Affect Energy Efficiency contains locations where the energy The 2012 IECC modifies internal savings from increased solar heat gains shade fractions required as inputs to the Several changes were made to the in winter may more than offset performance compliance path. The 2009 IECC that do not directly affect energy increased energy use for air IECC specified the following internal efficiency. Table 4 details these changes, conditioning in summer, it is possible shade fractions for the reference design: listing the section of the 2009 IECC to that a lower SHGC would increase Summer—0.70, Winter—0.85. These which the change was made, a energy use in some parts of the zone. have been replaced in the 2012 IECC description of the change, and an However, the specified fenestration U- with the following equation for explanation why overall energy factor of 0.35 in both the 2009 and 2012 calculating interior shade fraction (ISF): efficiency is not affected.

TABLE 4—CHANGES TO IECC THAT DO NOT AFFECT ENERGY EFFICIENCY

Code section Change Comments

R202 ...... Clarifies that residential buildings covered by chapter 4 This change is only a clarification. are one- and two-family dwellings, townhouses and multi-family residential (R–2) not over 3 stories in height above grade. R202 ...... Definition of a whole-house ventilation system ...... Because whole-house ventilation systems are not yet re- quired by the code, this new definition effects no real change to the code’s requirements. R401.3 ...... Results of an air leakage test must be documented on the This change only affects the transparency of code compli- certificate. ance. R202 and R303.1.3 ..... Introduction of ‘‘Visible Transmittance’’ (VT) for fenestra- The table only provides default VT values for certain win- tions. Default Visible Transmittances defined in Table. dow types. VT is not directly regulated by the code. R402.4.4 ...... Clarification that recessed lighting must be labeled as hav- This is only a clarification of previous text. ing a leakage rate to ceiling cavity of <=2 cfm. Chapter 6 ...... Introduction of ASHRAE test procedure 193 for deter- Provides a test procedure to enable compliance with a mining the air leakage rate for HVAC Equipment. new requirement. Chapter 5 ...... Introduction of test standard for home ventilation systems: Provides a test procedure to enable compliance with a HVI 916–09 Airflow Test Procedure. new requirement. Table R405.5.2(1) ...... Requirements for Proposed Design for Thermal Distribu- This change is only a clarification. tion Systems: Thermal distribution system efficiency shall be as tested or as specified by Table 405.5.2 if not tested. Duct insulation shall be as proposed. R403.6 ...... Heating and cooling equipment shall be sized in accord- This moves this requirement directly into the IECC instead ance with ACCA Manual S based on building loads cal- of referencing the IRC. culated in accordance with ACCA Manual J or other ap- proved heating and cooling calculation methodologies.

III. Filing Certification Statements With and upon the evidence presented at the existing building or building system, or DOE hearing; and (4) made available to the portion thereof, as it relates to new public. States have considerable construction as detailed in chapter 1, A. State Determinations discretion with regard to the hearing part 1 of the 2012 IECC. Chapter 1, part Based on today’s final determination, procedures they use, subject to 1 of the 2012 IECC specifies the scope each State is required to determine the providing an adequate opportunity for of the IECC as it pertains to existing appropriateness of revising, in full or in members of the public to be heard and buildings: The 2012 IECC does not part, the portion of its residential to present relevant information. The require the unaltered portion(s) of the building code regarding energy Department recommends publication of existing building or building system to efficiency to meet or exceed the energy any notice of public hearing in a comply with this code nor does the code efficiency provisions of the 2012 IECC. newspaper of general circulation. require the removal, alteration or (42 U.S.C. 6833(a)(5)(B)) The State In evaluating the 2012 IECC, States abandonment of, nor prevent the determinations are required to be made should note that DOE’s determination continued use and maintenance of, an not later than two years from today’s was based on an evaluation of the code existing building or building system date, unless an extension is provided. as applied to new construction only. lawfully in existence at the time of The State determination must be: (1) The scope of the 2012 IECC includes adoption of the IECC. Additionally, DOE Made after public notice and hearing; new construction as well as additions, notes that its determination was based (2) in writing; (3) based upon findings alterations, renovations, or repairs to an on a comparison of energy efficiency

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impacts only and did not take into a plan that would respond to the environmental assessment or an consideration other factors such as cost, requirements of Section 304 of ECPA. environmental impact statement. or health and safety. DOE provides This list is not exhaustive. Requests are D. Review Under Executive Order States technical assistance to aid them to be sent to the address provided in the 13132, ‘‘Federalism’’ in determining whether to update ADDRESSES section. specific residential building codes. See Executive Order 13132, 64 FR 43255 http://www.energycodes.gov/states/ IV. Regulatory Analysis (Aug. 4, 1999), imposes certain techAssist.stm. In addition, funds A. Review Under Executive Order 12866 requirements on agencies formulating provided through the State Energy and implementing policies or Today’s action is a significant Program, can be used to support code regulations that pre-empt State law or regulatory action under section 3(f)(1) of development consistent with a State’s that have federalism implications. Executive Order 12866, ‘‘Regulatory approved plan. Agencies are required to examine the Section 304(a)(4) of ECPA, as Planning and Review’’ (58 FR 51735 constitutional and statutory authority amended, requires that if a State makes (Oct. 4, 1993)). Accordingly, today’s supporting any action that would limit a determination that it is not action was reviewed by the Office of the policymaking discretion of the appropriate to revise the energy Information and Regulatory Affairs States and carefully assess the necessity efficiency provisions of its residential (OIRA) in the Office of Management and for such actions. DOE has examined building code, the State must submit to Budget (OMB). today’s action and has determined that the Secretary, in writing, the reasons for B. Review Under the Regulatory it will not pre-empt State law and will this determination and the statement Flexibility Act not have a substantial direct effect on shall be available to the public. (42 the States, on the relationship between U.S.C. 6833(a)(4)) The reasons are to be The Regulatory Flexibility Act (5 the national government and the States, sent to the address provided in the U.S.C. 601 et seq.) requires the or on the distribution of power and ADDRESSES section. preparation of an initial regulatory responsibilities among the various States should be aware that, flexibility analysis for any rule that by levels of government. Today’s action consistent with IECC definitions, the law must be proposed for public impacts whether States must perform an Department considers high-rise (greater comment, unless the agency certifies evaluation of State building codes. No than three stories) multifamily that the rule, if promulgated, will not further action is required by Executive residential buildings and hotel, motel, have a significant economic impact on Order 13132. and other transient residential building a substantial number of small entities. F. Review Under the Unfunded types of any height as non-residential As required by Executive Order 13272, Mandates Reform Act of 1995 buildings for energy code purposes. ‘‘Proper Consideration of Small Entities Residential buildings include one- and in Agency Rulemaking,’’ (67 FR. 53461 The Unfunded Mandates Reform Act two-family detached and attached (Aug. 16, 2002)), DOE published of 1995 (Pub. L. 104–4) generally buildings, duplexes, townhouses, row procedures and policies on February 19, requires Federal agencies to examine houses, and low-rise multifamily 2003, to ensure that the potential closely the impacts of regulatory actions buildings (not greater than three stories) impacts of its rules on small entities are on State, local, and tribal governments. such as condominiums and garden properly considered during the Subsection 101(5) of Title I of that law apartments. rulemaking process (68 FR 7990). DOE defines a Federal intergovernmental States should also be aware that this has made its procedures and policies mandate to include any regulation that final determination does not apply to available on the Office of General would impose upon State, local, or IECC chapters specific to non- Counsel’s Web site: http:// tribal governments an enforceable duty, residential buildings as defined above. www.gc.doe.gov. Today’s action on the except a condition of Federal assistance Therefore, today’s final action requires final determination of improved energy or a duty arising from participating in a that States must certify their evaluations efficiency between IECC editions voluntary Federal program. Title II of of their State building codes for requires States to undertake an analysis that law requires each Federal agency to residential buildings with respect to all of their respective building codes. assess the effects of Federal regulatory provisions of the IECC except for those Today’s action does not impact small actions on State, local, and tribal chapters specific to non-residential entities. Therefore, DOE has certified governments, in the aggregate, or to the buildings as defined above. that there is no significant economic private sector, other than to the extent impact on a substantial number of small such actions merely incorporate B. Requests for Extensions To Certify entities. requirements specifically set forth in a Section 304(c) of ECPA, as amended, statute. Section 202 of that title requires C. Review Under the National requires that the Secretary permit an a Federal agency to perform a detailed Environmental Policy Act of 1969 extension of the deadline for complying assessment of the anticipated costs and with the certification requirements DOE has determined that today’s benefits of any rule that includes a described above, if a State can action is covered under the Categorical Federal mandate which may result in demonstrate that it has made a good Exclusion found in DOE’s National costs to State, local, or tribal faith effort to comply with such Environmental Policy Act regulations at governments, or to the private sector, of requirements and that it has made paragraph A.6 of Appendix A to subpart $100 million or more. Section 204 of significant progress toward meeting its D, 10 CFR part 1021. That Categorical that title requires each agency that certification obligations. (42 U.S.C. Exclusion applies to actions that are proposes a rule containing a significant 6833(c)) Such demonstrations could strictly procedural, such as rulemaking Federal intergovernmental mandate to include one or both of the following: (1) establishing the administration of develop an effective process for A plan for response to the requirements grants. Today’s action impacts whether obtaining meaningful and timely input stated in Section 304; and/or (2) a States must perform an evaluation of from elected officers of State, local, and statement that the State has State building codes. The action would tribal governments. appropriated or requested funds (within not have direct environmental impacts. Today’s action impacts whether States State funding procedures) to implement Accordingly, DOE has not prepared an must perform an evaluation of State

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building codes. Today’s action would energy action, the agency must give a petition for waiver from the residential not impose a Federal mandate on State, detailed statement of any adverse effects refrigerator and refrigerator-freezer test local or tribal governments, and it on energy supply, distribution, or use, procedure. Comments were required to would not result in the expenditure by should the proposal be implemented, be submitted by May 2, 2012. This State, local, and tribal governments in and of reasonable alternatives to the document announces that the period for the aggregate, or by the private sector, of action and their expected benefits on submitting comments on the Sanyo $100 million or more in any one year. energy supply, distribution, and use. petition for waiver is re-opened until Accordingly, no assessment or analysis Today’s action would not have a June 18, 2012. is required under the Unfunded significant adverse effect on the supply, DATES: DOE will accept comments, data, Mandates Reform Act of 1995. distribution, or use of energy and is and information regarding the Sanyo therefore not a significant energy action. G. Review Under the Treasury and petition for waiver received no later Accordingly, DOE has not prepared a General Government Appropriations than June 18, 2012. Statement of Energy Effects. Act of 1999 ADDRESSES: Any comments submitted must identify the Sanyo E&E Section 654 of the Treasury and J. Review Under Executive Order 13175 Corporation petition for waiver, and General Government Appropriations Executive Order 13175. ‘‘Consultation provide case number RF–022. Act of 1999 (Pub. L. 105–277) requires and Coordination With Indian Tribal Comments may be submitted using any Federal agencies to issue a Family Governments’’ (65 FR 67249 (Nov. 9, of the following methods: Policymaking Assessment for any rule 2000)), requires DOE to develop an • Federal eRulemaking Portal: http:// that may affect family well-being. accountable process to ensure www.regulations.gov. Follow the Today’s action would not have any ‘‘meaningful and timely input by tribal instructions for submitting comments. impact on the autonomy or integrity of officials in the development of • Email: the family as an institution. regulatory policies that have tribal [email protected]. Accordingly, DOE has concluded that it implications.’’ ‘‘Policies that have tribal Include the case number [Case No. RF– is not necessary to prepare a Family implications’’ refers to regulations that 022] in the subject line of the message. Policymaking Assessment. have ‘‘substantial direct effects on one • Mail: Ms. Brenda Edwards, U.S. H. Review Under the Treasury and or more Indian tribes, on the Department of Energy, Building General Government Appropriations relationship between the Federal Technologies Program, Mailstop EE–2J/ Act of 2001 Government and Indian tribes, or on the 1000 Independence Avenue SW., distribution of power and Washington, DC 20585–0121. Section 515 of the Treasury and responsibilities between the Federal Telephone: (202) 586–2945. Please General Government Appropriations Government and Indian tribes.’’ Today’s submit one signed original paper copy. Act, 2001 (44 U.S.C. 3516, note) regulatory action is not a policy that has • Hand Delivery/Courier: Ms. Brenda provides for agencies to review most ‘‘tribal implications’’ under Executive Edwards, U.S. Department of Energy, disseminations of information to the Order 13175. Building Technologies Program, 950 public under guidelines established by DOE has reviewed today’s action L’Enfant Plaza SW., Suite 600, each agency pursuant to general under Executive Order 13175 and has Washington, DC 20024. Please submit guidelines issued by OMB. OMB’s determined that it is consistent with one signed original paper copy. guidelines were published at 67 FR applicable policies of that Executive Docket: For access to the docket to 8452 (Feb. 22, 2002), and DOE’s Order. read background documents or guidelines were published at 67 FR Issued in Washington, DC, on May 9, 2012. comments received, visit the U.S. 62446 (Oct. 7, 2002). DOE has reviewed David T. Danielson, Department of Energy, Resource Room today’s action under the OMB and DOE of the Building Technologies Program, guidelines and has concluded that it is Assistant Secretary, Energy Efficiency and Renewable Energy. 950 L’Enfant Plaza SW., 6th Floor, consistent with applicable policies in Washington, DC 20024, (202) 586–2945, those guidelines. [FR Doc. 2012–12000 Filed 5–16–12; 8:45 am] BILLING CODE 6450–01–P between 9:00 a.m. and 4:00 p.m. I. Review Under Executive Order 13211 Monday through Friday, except Federal Executive Order 13211, ‘‘Actions holidays. Please call Ms. Brenda Concerning Regulations That DEPARTMENT OF ENERGY Edwards at the above telephone number Significantly Affect Energy Supply, for additional information. Office of Energy Efficiency and Distribution, or Use,’’ 66 FR 28355 (May FOR FURTHER INFORMATION CONTACT: Mr. Renewable Energy 22, 2001), requires Federal agencies to Bryan Berringer, U.S. Department of prepare and submit to the OMB a [Case No. RF–022] Energy, Building Technologies Program, Statement of Energy Effects for any Mail Stop EE–2J, Forrestal Building, proposed significant energy action. A Publication of the Petition for Waiver 1000 Independence Avenue SW., ‘‘significant energy action’’ is defined as From Sanyo E&E Corporation From the Washington, DC 20585–0121. any action by an agency that Department of Energy Residential Telephone: (202) 586–0371. Email: promulgated or is expected to lead to Refrigerator and Refrigerator-Freezer [email protected]. promulgation of a final rule, and that: Test Procedure SUPPLEMENTARY INFORMATION: On April (1) Is a significant regulatory action AGENCY: Office of Energy Efficiency and 2, 2012, DOE published the Sanyo under Executive Order 12866, or any Renewable Energy, Department of petition for waiver from the residential successor order; and (2) is likely to have Energy. refrigerator, refrigerator-freezer, and a significant adverse effect on the ACTION: Notice of re-opening of public freezer test procedure in the Federal supply, distribution, or use of energy, or comment period. Register (77 FR 19654). The notice (3) is designated by the Administrator of provided for the submission of the Office of Information and Regulatory SUMMARY: On April 2, 2012, the U.S. comments by May 2, 2012. After the Affairs (OIRA) as a significant energy Department of Energy (DOE) published notice of petition for waiver was action. For any proposed significant the Sanyo E&E Corporation (Sanyo) published, Sanyo provided DOE with

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clarifications on certain items in its Dated: Issued in Washington, DC, on May Energy consumption of the wine storage original petition, and requested that the 9, 2012. compartment: comment period for its petition for Kathleen B. Hogan, EWine = {ET1 + [(ET2¥ET1) × (55 waiver be extended so that commenters Deputy Assistant Secretary for Energy °F¥TW1)/(TW2¥TW1)]} *0.85 1 would have an opportunity to comment Efficiency, Energy Efficiency and Renewable on the petition with these clarifications Energy. Energy consumption of the refrigerated beverage compartment: included. DOE is publishing Sanyo’s BEFORE THE U.S. DEPARTMENT OF request in its entirety. The request EBeverage Compartment= ET1 + ENERGY ¥ × ° ¥ contains no confidential information. [(ET2 ET1) (38 F TBC1)/ Washington, DC 20585 ¥ The request includes a suggested (TBC2 TBC1)]. alternate test procedure to determine the In the Matter of: SANYO E&E Corp., As SEE also explained, the K factor energy consumption of Sanyo’s Petitioner). from CAN/CSA 300–08 6.3.1.2 and specified hybrid refrigerators. To HRF–1–2007 8.7.2.1.1 was used because provide all manufacturers of Case Number: RF–022 SEE’s hybrid models will typically have domestically marketed units of the same REQUEST FOR EXTENSION OF a door-opening usage aligned with product type additional time to submit COMMENT DEADLINE household freezers, and thus 0.85 was comments on the additional information the employed K factor (correction provided by Sanyo, DOE has SANYO E&E Corporation (‘‘SEE’’) factor). Further, to evaluate the models determined that re-opening of the public submits this Request for Extension of in a manner truly representative of their actual energy consumption comment period is appropriate and is Comment Deadline (‘‘Request’’) with characteristics, the standard hereby re-opening the comment period. respect to its Petition for Waiver temperature of single wine coolers (55 DOE will consider any comments (‘‘Petition’’) filed with the Department of Energy (‘‘DOE’’) on June 2, 2011. °F) for the wine storage compartment received by June 18, 2012 and deems Notice of SEE’s Petition was published and the standard temperature (38 °F) for any comments received between May 2, in the April 2, 2012 Federal Register the refrigerated beverage compartment 2012 and June 18, 2012 to be timely (Vol. 77, No. 63, p. 19654) (‘‘Notice’’) was used.2 submitted. and the public comment period is Applying these proposals, and in Further Information on Submitting currently scheduled to close on May 2, accordance with 10 C.F.R. § 430, subpart B, Appendix A1, SEE hybrid model Comments 2012. SEE respectfully requests that interested parties be granted thirty (30) MBCM24FW, which would be classified Under 10 CFR part 1004.11, any additional days from the publication of as a compact refrigerator with automatic person submitting information that he this Request to file comments on SEE’s defrost without through-the-door ice or she believes to be confidential and Petition so that any commenters have service and which has a total adjusted exempt by law from public disclosure sufficient time to provide a response volume of 5.75 cubic feet, would have should submit two copies: One copy of incorporating the clarifications to the a maximum allowable annual energy usage of 436 kWh/year. Similarly, SEE the document including all the Petition SEE provides below. Granting hybrid models JUB248LB, JUB248RB, information believed to be confidential, the extension will not prejudice any JUB248LW, JUB248RW, KBCO24LS, and one copy of the document with the interested parties, and will promote the efficient resolution of SEE’s Petition. KBCS24LS, KBCO24RS, and KBCS24RS, information believed to be confidential which would also be classified as deleted. DOE will make its own 1. SEE’s Proposed Alternative Testing compact refrigerators with automatic determination about the confidential Method For Its Hybrid Models defrost without through-the-door ice status of the information and treat it service and which have a total adjusted according to its determination. As SEE explained in its Petition, volume of 5.41 cubic feet, would have which SEE incorporates herein, SEE’s Factors of interest to DOE when a maximum allowable annual energy hybrid models contain design evaluating requests to treat submitted usage of 431 kWh/year. characteristics that prevent testing of the information as confidential include (1) a basic models according to the test 2. Clarification Of SEE Proposed description of the items, (2) whether procedures prescribed in 10 C.F.R. Alternative Testing Method and why such items are customarily § 430, subpart B, appendix A1. In its Notice, DOE stated that ‘‘[w]e treated as confidential within the Specifically, while the beverage also note that the energy consumption industry, (3) whether the information is compartment of these hybrid models is of the basic models detailed in Sanyo’s generally known by or available from cable of achieving temperatures at or other sources, (4) whether the below 38 °F, the wine storage 1 SEE clarifies here that the .85 correction factor information has previously been made compartment of these single-cabinet should be applied to the entire formula for the wine storage compartment, {ET1 + [(ET2¥ET1) × (55 available to others without obligation units can only achieve a minimum ° ¥ ¥ } ° F TW1)/(TW2 TW1)] . concerning its confidentiality, (5) an temperature of 45 F. As a result, it is 2 As DOE itself noted in its Framework Public explanation of the competitive injury to impossible to test these hybrid models Meeting for Wine Chillers and Miscellaneous the submitting person which would under DOE’s current testing procedures, Refrigeration Products, the Association of Home result from public disclosure, (6) when which mandate that energy Appliance Manufacturers, the California Energy Commission, and Natural Resources Canada ‘‘all such information might lose its consumption be measured when each use a standardized compartment temperature of 55 confidential character due to the compartment temperature is set at 38 °F. °F’’ and a .85 K factor. Framework at pp. 34–35, passage of time, and (7) why disclosure available at http://www1.eere.energy.gov/buildings/ In order to properly certify and rate appliance_standards/pdfs/ of the information would be contrary to these hybrid models, SEE proposed the wc_fw_meeting_presentation_draft.pdf. In the the public interest. following two formulas to measure the absence of an existing federal standard, SEE maximum allowable energy accordingly employed these prevailing standards in its proposed alternative testing method with respect consumption of the wine storage and to the wine storage compartment of SEE’s hybrid beverage compartments, respectively: models.

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petition suggests that these products, for these basic models (the beverage DEPARTMENT OF ENERGY when tested in accordance with the compartment for these basic models is alternate test procedure Sanyo is also 2.8 cubic feet), for a total adjusted Federal Energy Regulatory requesting to use, would appear to use volume of 5.41 cubic feet: Commission an amount of energy that exceeds the [Project No. 12968–001] energy conservation standards for the 10 CFR 430.32 class 13 all-refrigerator: × likely product classes that would 12.70 5.41 + 355 kWh/year = 424 City of Norwich Department of Public apply.’’ Notice at 19655. SEE apologizes kWh/year Utilities; Notice of Proposed Restricted for any confusion caused by the CAN/CSA–C300–08 type 20 wine Service List for a Programmatic proposed formulas in its Petition, as chiller: 17.4 × 5.41 + 344 kWh/year Agreement for Managing Properties SEE did not mean to suggest that 436 = 438 kWh/year Included in or Eligible for Inclusion in kWh/year and 431 kWh/year were the Combined standard: (424 kWh/year × the National Register of Historic Places actual energy consumption values for × the applicable hybrid models. Rather, 2.8/5.41) + (438 kWh/year 2.61/ Rule 2010 of the Federal Energy SEE was attempting to demonstrate that 5.41) = 431 kWh/year Regulatory Commission’s (Commission) Rules of Practice and Procedure these energy consumption figures would Thus, the 436 kWh/year and 431 provides that, to eliminate unnecessary be the theoretical maximum allowable kWh/year figures reflect the weighted annual values under SEE’s proposed expense or improve administrative average of the maximum allowable efficiency, the Secretary may establish a alternative testing method. In order to energy consumption standard pertaining avoid further confusion, SEE provides restricted service list for a particular to class 13 all-refrigerators, as applied to phase or issue in a proceeding.1 The below a more detailed explanation as to SEE’s hybrid models’ beverage how it derived these maximum restricted service list should contain the compartment, and the CAN/CSA–C300– names of persons on the service list allowable values. 08 type 20 standard for wine chillers, as With respect to basic model who, in the judgment of the decisional MBCM24FWBS, the total adjusted applied to SEE’s hybrid models’ wine authority establishing the list, are active volume of the beverage compartment is storage compartment. SEE realizes that participants with respect to the phase or 2.8 cubic feet, while the total adjusted the bases for these figures may not have issue in the proceeding for which the volume of the wine storage been entirely clear from SEE’s Petition, list is established. compartment is 2.95 cubic feet, for a and therefore SEE respectfully requests The Commission staff is consulting total adjusted volume of 5.75 cubic feet. that DOE publish this clarification in with the Connecticut State Historic To calculate the maximum allowable order to provide interested parties with Preservation Officer (hereinafter, annual energy consumption figure, a more thorough understanding of how Connecticut SHPO), and the Advisory however, SEE first calculated the SEE derived its proposed alternative Council on Historic Preservation maximum allowable energy testing method and related maximum (hereinafter, Advisory Council) consumption of this model as if it were allowable energy consumption figures. pursuant to the Advisory Council’s entirely governed by the class 13 all- SEE further requests that interested regulations, 36 CFR Part 800, refrigerator standard, and then parties be granted thirty (30) additional implementing section 106 of the National Historic Preservation Act, as calculated the maximum allowable days from the publication of this amended, (16 U.S.C. section 470f), to energy consumption figure as if it were Request to file comments on SEE’s entirely governed by the current CAN/ prepare and execute a programmatic Petition so that interested parties have agreement for managing properties CSA–C300–08 type 20 wine chiller sufficient time to provide a proper standard: included in, or eligible for inclusion in, response without the need for an the National Register of Historic Places 10 CFR 430.32 class 13 all-refrigerator: additional round of comments. that could be affected by issuance of a 12.70 × 5.75 + 355 kWh/year = 428 If DOE requires any additional new license for the Scotland kWh/year CAN/CSA–C300–08 type 20 wine information to properly consider SEE’s Hydroelectric Project No. 12968–001. The programmatic agreement, when chiller: 17.4 × 5.75 + 344 kWh/year Petition, please do not hesitate to executed by the Commission and the = 444 kWh/year contact the undersigned. Connecticut SHPO would satisfy the SEE then took the weighted average of Respectfully submitted, Commission’s section 106 these figures based upon the actual total /s lllllllllllllllllll responsibilities for all individual adjusted volume of the beverage Alan G. Fishel undertakings carried out in accordance compartment (2.8 cubic feet) and the Adam D. Bowser with the license until the license expires wine storage compartment (2.95 cubic ARENT FOX LLP or is terminated (36 CFR 800.13[e]). The feet) to derive the proposed maximum 1050 Connecticut Avenue NW Commission’s responsibilities pursuant allowable energy consumption figure Washington, DC 20036–5369 to section 106 for the Scotland contained in its Petition: (202) 857–6450 Hydroelectric Project would be fulfilled × Combined standard: (428 kWh/year [email protected] through the programmatic agreement, × 2.8/5.75) + (444 kWh/year 2.95/ [email protected] which the Commission proposes to draft 5.75) = 436 KWh/year April 20, 2012 in consultation with certain parties With respect to basic models [FR Doc. 2012–11998 Filed 5–16–12; 8:45 am] listed below. The executed JUB248LB, JUB248RB, JUB248LW, BILLING CODE 6450–01–P programmatic agreement would be JUB248RW, KBCO24LS, KBCS24LS, incorporated into any Order issuing a KBCO24RS, and KBCS24RS, SEE license. derived the maximum allowable energy City of Norwich Department of Public consumption figure in the same manner, Utilities, as the competitor applicant for with the only difference being that the the Scotland Hydroelectric Project No. total adjusted volume of the wine storage compartment is 2.61 cubic feet 1 18 CFR section 385.2010.

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12968, and the Mashantucket Pequot the end of the 15-day period. Otherwise, EPA ICR Number 2381.02; ICR for the Tribe of Connecticut have expressed an a further notice will be issued ruling on Final Rule entitled ‘‘Lead; Clearance interest in this preceding and are any motion or motions filed within the and Clearance Testing Requirements for invited to participate in consultations to 15-day period. the Renovation, Repair, and Painting develop the programmatic agreement. Dated: May 10, 2012. Program’’; 40 CFR part 745; was For purposes of commenting on the approved on 04/06/2012; OMB Number Kimberly D. Bose, programmatic agreement, we propose to 2070–0181; expires on 04/30/2015; restrict the service list for the Secretary. Approved with change. aforementioned project as follows: [FR Doc. 2012–11824 Filed 5–16–12; 8:45 am] EPA ICR Number 2294.03; NESHAP John Eddins or Representative, Office of BILLING CODE 6717–01–P for Plating and Polishing Area Sources; Planning and Review, Advisory 40 CFR part 63 subparts A and Council on Historic Preservation, WWWWWW; was approved on 04/12/ 1100 Pennsylvania Ave. NW., Suite ENVIRONMENTAL PROTECTION 2012; OMB Number 2060–0623; expires 803, Washington, DC 20004 AGENCY on 04/30/2015; Approved without Daniel Forrest or Representative, [FRL–9517–1] change. Archaeologist/Environmental Review EPA ICR Number 1983.06; NESHAP Coordinator, Historic Preservation Agency Information Collection for Carbon Black, Ethylene, Cyanide, and Museum Division, One Activities OMB Responses and Spandex; 40 CFR part 63 subparts Constitution Plaza, 2nd Floor, A and YY; was approved on 04/12/2012; AGENCY: Environmental Protection Hartford, CT 06103 OMB Number 2060–0489; expires on Agency (EPA). John F. Bilda or Representative, 04/30/2015; Approved without change. Norwich Public Utilities, 16 South ACTION: Notice. EPA ICR Number 1669.06; Lead-Based Golden Street, Norwich, CT 06360 Paint Pre-Renovation Information SUMMARY: This document announces the Kathleen Knowles or Representative, Dissemination—TSCA Sec. 406(b); 40 Office of Management and Budget CFR part 745 subpart E; was approved Tribal Historic Preservation Officer, (OMB) responses to Agency Clearance Mashantucket Pequot Tribe of on 04/20/2012; OMB Number 2070– requests, in compliance with the 0158; expires on 04/30/2015; Approved Connecticut, 550 Trolley Line Blvd., Paperwork Reduction Act (44 U.S.C. Mashantucket, CT 06338–3202 without change. 3501 et. seq.). An agency may not EPA ICR Number 2258.03; PM 2.5 Any person on the official service list conduct or sponsor, and a person is not NAAQS Implementation Rule for the above-captioned proceeding may required to respond to, a collection of (Renewal); 40 CFR 51.1000–51.1012; request inclusion on the restricted information unless it displays a was approved on 04/19/2012; OMB service list, or may request that a currently valid OMB control number. Number 2060–0611; expires on 04/30/ restricted service list not be established, The OMB control numbers for EPA 2015; Approved with change. by filing a motion to that effect within regulations are listed in 40 CFR part 9 EPA ICR Number 2159.05; 15 days of this notice date. In a request and 48 CFR chapter 15. Background Checks for Contractor for inclusion, please identify the FOR FURTHER INFORMATION CONTACT: Rick Employees (Renewal); 5 CFR parts 731, reason(s) why there is an interest to be Westlund (202) 566–1682, or email at 732 and 736; was approved on 04/24/ included. Also please identify any [email protected] and please refer 2012; OMB Number 2030–0043; expires concerns about historic properties, to the appropriate EPA Information on 04/30/2015; Approved without including Traditional Cultural Collection Request (ICR) Number. change. Properties. If historic properties are to SUPPLEMENTARY INFORMATION: EPA ICR Number 0969.09; Final be identified within the motion, please Authorization for Hazardous Waste use a separate page, and label it NON- OMB Responses to Agency Clearance Management Programs (Renewal); 40 PUBLIC Information. Requests CFR 271.5–271.8, 271.20, 271.21 and Any such motions may be filed OMB Approvals 271.23; was approved on 04/24/2012; electronically via the Internet. See 18 OMB Number 2050–0041; expires on CFR 385.2001(a)(1)(iii) and the EPA ICR Number 1695.11; Emissions 04/30/2015; Approved without change. instructions on the Commission’s Web Certification and Compliance EPA ICR Number 2183.05; Drug site (http://www.ferc.gov/docs-filing/ Requirements for Nonroad Spark- Testing for Contractor Employees ferconline.asp) under the ‘‘eFiling’’ link. ignition Engines (Transfer Burden from (Renewal); 5 CFR parts 731, 732 and For a simpler method of submitting text 2060–0603); 40 CFR parts 1048, 1051, 736; was approved on 04/24/2012; OMB only comments, click on ‘‘eComment.’’ 1065 and 1068; was approved on 04/03/ Number 2030–0044; expires on 04/30/ For assistance, please contact FERC 2012; OMB Number 2060–0338; expires 2015; Approved without change. Online Support at on 08/31/2012; Approved without EPA ICR Number 1352.12; [email protected]; call toll- change. Community Right-to-Know Reporting free at (866) 208–3676; or, for TTY, EPA ICR Number 1957.06; NESHAP Requirements Under Sections 311 and contact (202) 502–8659. Although the for Metal Coil Surface Coating Plants; 40 312 of the Emergency Planning and Commission strongly encourages CFR part 63 subparts A and SSSS; was Community Right-to-Know Act (EPCRA) electronic filing, documents may also be approved on 04/04/2012; OMB Number (Renewal); 40 CFR part 370; was paper-filed. To paper-file, mail an 2060–0487; expires on 04/30/2015; approved on 04/24/2012; OMB Number original and seven copies to: Kimberly Approved without change. 2050–0072; expires on 04/30/2015; D. Bose, Secretary, Federal Energy EPA ICR Number 1831.05; NESHAP Approved with change. Regulatory Commission, 888 First Street for Ferroalloys Production: EPA ICR Number 1608.06; State NE., Washington, DC 20426. Please put Ferromanganese and Silicomanganese; Program Adequacy Determination: the project number (P–12968–001) on 40 CFR part 63 subparts A and XXX; Municipal Solid Waste Landfills the first page of the filing. was approved on 04/04/2012; OMB (MSWLFs) and Non-Municipal, Non- If no such motions are filed, the Number 2060–0391; expires on 04/30/ Hazardous Waste Disposal Units that restricted service list will be effective at 2015; Approved without change. Receive * * *; 40 CFR parts 239, 257

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and 258; was approved on 04/24/2012; EPA ICR Number 1611.09; NESHAP Protection Agency, 1200 Pennsylvania OMB Number 2050–0152; expires on for Chromium Emissions from Hard and Ave. NW., Washington, DC 20460–0001; 04/30/2015; Approved without change. Decorative Chromium Electroplating telephone number: (703) 305–5160; fax EPA ICR Number 2002.05; Cross- and Chromium Anodizing Tanks; in 40 number: (703) 305–5884; email address: Media Electronic Reporting and CFR part 63 subparts A and N; OMB [email protected]. Recordkeeping Rule (Renewal); 40 CFR filed comment on 04/04/2012. SUPPLEMENTARY INFORMATION: EPA has part 3; was approved on 04/24/2012; EPA ICR Number 2455.01; Revision to submitted the following ICR to OMB for OMB Number 2025–0003; expires on the Export Provisions of the Cathode review and approval according to the 04/30/2015; Approved without change. Ray Tube (CRT) Rule (Proposed Rule); procedures prescribed in 5 CFR 1320.12. EPA ICR Number 2303.03; NESHAP in 40 CFR 261.39 and 261.41; OMB filed On December 14, 2011 (76 FR 77817), for Ferroalloys Production Area comment on 04/24/2012. EPA sought comments on this ICR Sources; 40 CFR part 63 subparts A and pursuant to 5 CFR 1320.8(d). EPA YYYYYY; was approved on 04/24/2012; John Moses, Director, Collections Strategies Division. received 3 comments during the OMB Number 2060–0625; expires on comment period. Any additional 04/30/2015; Approved without change. [FR Doc. 2012–11947 Filed 5–16–12; 8:45 am] comments on this ICR should be EPA ICR Number 1658.07; Control BILLING CODE 6560–50–P submitted to EPA and OMB within 30 Technology Determination for days of this notice. Constructed or Reconstructed Major EPA has established a public docket Sources of Hazardous Air Pollutants; 40 ENVIRONMENTAL PROTECTION AGENCY for this ICR under Docket ID No. EPA– CFR part 63 subpart B; was approved on HQ–OPP–2011–0886, which is available 04/24/2012; OMB Number 2060–0373; [EPA–HQ–OPP–2011–0886; FRL–9517–4] for online viewing at http:// expires on 04/30/2015; Approved www.regulations.gov, or in person without change. Agency Information Collection viewing at the OPP Regulatory Public EPA ICR Number 1055.10; NSPS for Activities; Submission to OMB for Docket in the EPA Docket Center (EPA/ Kraft Pulp Mills; 40 CFR part 60 Review and Approval; Comment DC), EPA West, Room 3334, 1301 subparts A and BB; was approved on Request; Application for New and Constitution Ave. NW., Washington, 04/24/2012; OMB Number 2060–0021; Amended Pesticide Registration DC. The EPA/DC Public Reading Room expires on 04/30/2015; Approved is open from 8 a.m. to 4:30 p.m., without change. AGENCY: Environmental Protection EPA ICR Number 1789.07; NESHAP Agency (EPA). Monday through Friday, excluding legal holidays. The telephone number for the for Natural Gas Transmission and ACTION: Notice. Storage; 40 CFR part 63 subparts A and Reading Room is 202–566–1744. HHH; was approved on 04/24/2012; SUMMARY: In compliance with the Use EPA’s electronic docket and OMB Number 2060–0418; expires on Paperwork Reduction Act (44 U.S.C. comment system at http:// 04/30/2015; Approved without change. 3501 et seq.), this document announces www.regulations.gov to submit or view EPA ICR Number 2207.04; Exchange that the following Information public comments, access the index Network Grants Progress Reports Collection Request (ICR) has been listing of the contents of the docket, and (Renewal); was approved on 04/24/ forwarded to the Office of Management to access those documents in the docket 2012; OMB Number 2025–0006; expires and Budget (OMB) for review and that are available electronically. Once in on 04/30/2015; Approved without approval: Application for New and the system, select ‘‘docket search,’’ then change. Amended Pesticide Registration; EPA key in the docket ID number identified EPA ICR Number 2137.06; NESHAP ICR No. 0277.16, OMB Control No. above. Please note that EPA’s policy is for Coal- and Oil-fired Electric Utility 2070–0060. The ICR, which is that public comments, whether Steam Generating Units; 40 CFR part 63 abstracted below, describes the nature of submitted electronically or in paper, subparts A and UUUUU; was approved the information collection activity and will be made available for public on 04/25/2012; OMB Number 2060– its expected burden and costs. viewing at http://www.regulations.gov 0567; expires on 04/30/2015; Approved DATES: Additional comments may be as EPA receives them and without without change. submitted on or before June 18, 2012. change, unless the comment contains EPA ICR Number 1710.06; Residential copyrighted material, confidential ADDRESSES: Submit your comments, business information (CBI), or other Lead-Based Paint Hazard Disclosure referencing Docket ID No. EPA–HQ– Requirements (Renewal); 24 CFR part 35 information whose public disclosure is OPP–2011–0886, to (1) EPA online restricted by statute. For further subpart H; and 40 CFR part 745 subpart using http://www.regulations.gov (our F; was approved on 04/25/2012; OMB information about the electronic docket, preferred method), or by mail to: EPA go to http://www.regulations.gov. Number 2070–0151; expires on 04/30/ Docket Center, Environmental 2015; Approved with change. Title: Application for New and Protection Agency, Office of Pesticide Amended Pesticide Registration. Comment Filed Programs (OPP) Regulatory Public ICR Status: This is a request to renew Docket (28221T), 1200 Pennsylvania EPA ICR Number 2323.03; an existing approved collection. This Ave. NW., Washington, DC 20460, and Reconsideration of Chemical ICR is scheduled to expire on July 31, (2) OMB by mail to: Office of Manufacturing Area Sources National 2012. Under OMB regulations, the Information and Regulatory Affairs, Emission Standards for Hazardous Air Agency may continue to conduct or Office of Management and Budget Pollutants (Proposed Rule); in 40 CFR sponsor the collection of information (OMB), Attention: Desk Officer for EPA, part 63 subparts A and subpart while this submission is pending at 725 17th Street NW., Washington, DC VVVVVV; OMB filed comment on OMB. 20503. 04/04/2012. Abstract: This ICR renewal will allow EPA ICR Number 2453.01; NESHAP FOR FURTHER INFORMATION CONTACT: EPA to collect necessary data to for Secondary Aluminum Production; in Martha Shimkin, Field and External evaluate an application of a pesticide 40 CFR part 63 subparts A and RRR; Affairs Division (7506P), Office of product as required under Section 3 of OMB filed comment on 04/04/2012. Pesticide Programs, Environmental the Federal Insecticide, Fungicide, and

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Rodenticide Act (FIFRA), and the the purposes of collecting, validating, collection and the estimated burden and Federal Food, Drug, and Cosmetic Act and verifying information, processing cost. (FFDCA), as amended by the Food and maintaining information, and DATES: Additional comments may be Quality Protection Act (FQPA) of disclosing and providing information; submitted on or before June 18, 2012. August 3, 1996. Under FIFRA, EPA adjust the existing ways to comply with ADDRESSES: Submit your comments, must evaluate pesticides thoroughly any previously applicable instructions referencing docket ID number EPA–HQ– before they can be marketed and used in and requirements which have OECA–2011–0253, to: (1) EPA online the United States, to ensure that they subsequently changed; train personnel using www.regulations.gov (our will not pose unreasonable adverse to be able to respond to a collection of preferred method), or by email to: effects to human health and the information; search data sources; [email protected], or by mail to: EPA environment. Pesticides that meet this complete and review the collection of Docket Center (EPA/DC), Environmental test are granted a license or information; and transmit or otherwise Protection Agency, Enforcement and ‘‘registration’’ which permits their disclose the information. Compliance Docket and Information distribution, sale and use according to Respondents/Affected Entities: 1,683. Center, mail code 28221T, 1200 requirements set by EPA to protect Estimated Annual Number of Pennsylvania Avenue NW., Washington, human health and the environment. The Responses: 8,136. DC 20460; and (2) OMB at: Office of producer of the pesticide must provide Frequency of Response: On occasion. Information and Regulatory Affairs, data from tests done according to EPA Estimated Total Annual Hour Burden: Office of Management and Budget guidelines or other test methods that 168,204. (OMB), Attention: Desk Officer for EPA, provide acceptable data. These tests Estimated Total Annual Cost: 725 17th Street NW., Washington, DC must determine whether a pesticide has $13,435,600, includes no annualized 20503. the potential to cause adverse effects on capital or O&M costs. humans, wildlife, fish and plants, Changes in the estimates from the last FOR FURTHER INFORMATION CONTACT: including endangered species and non- approval: There is an annual respondent Learia Williams, Monitoring, target organisms, as well as possible burden increase of 92,024 hours as a Assistance, and Media Programs contamination of surface water or result of 4,946 additional expected Division, Office of Compliance, Mail groundwater from leaching, runoff and responses, primarily from ‘‘Type B’’ Code 2227A, Environmental Protection spray drift. EPA also must approve the activities that involve a registrant or Agency, 1200 Pennsylvania Avenue language that appears on each pesticide applicant assembling and submitting an NW., Washington, DC 20460; telephone label. A pesticide product can only be application for registration of a new or number: (202) 564–4113; fax number: used according to the directions on the amended product that contains a (202) 564–0050; email address: labeling accompanying it at the time of currently registered active ingredient. [email protected]. sale, through its use and disposal. The increase reflects the Agency’s SUPPLEMENTARY INFORMATION: EPA has Responses to the collection of tracking of information collected under information are mandatory (see 40 CFR submitted the following ICR to OMB for FIFRA section 3 over the past three review and approval according to the 152). Respondents may claim all or part years, including increased responses for of a notice as CBI. EPA will disclose procedures prescribed in 5 CFR 1320.12. labeling or labeling amendments. This On May 9, 2011 (76 FR 26900), EPA information that is covered by a CBI change is an adjustment. claim only to the extent permitted by, sought comments on this ICR pursuant and in accordance with, the procedures John Moses, to 5 CFR 1320.8(d). EPA received no in 40 CFR part 2. Director, Collection Strategies Division. comments. Any additional comments on An Agency may not conduct or [FR Doc. 2012–11950 Filed 5–16–12; 8:45 am] this ICR should be submitted to EPA and OMB within 30 days of this notice. sponsor, and a person is not required to BILLING CODE 6560–50–P respond to, a collection of information, EPA has established a public docket unless it displays a currently valid OMB for this ICR under docket ID number control number. The OMB control ENVIRONMENTAL PROTECTION EPA–HQ–OECA–2011–0253, which is numbers for EPA’s regulations in title 40 AGENCY available for public viewing online at of the CFR, after appearing in the http://www.regulations.gov, or in person [EPA–HQ–OECA–2011–0253; FRL–9517–2] Federal Register when approved, are viewing at the Enforcement and Compliance Docket in the EPA Docket listed in 40 CFR part 9, are displayed Agency Information Collection Center (EPA/DC), EPA West, Room either by publication in the Federal Activities; Submission to OMB for 3334, 1301 Constitution Avenue NW., Register or by other appropriate means, Review and Approval; Comment Washington, DC. The EPA Docket such as on the related collection Request; NSPS for Nonmetallic Mineral Center Public Reading Room is open instrument or form, if applicable. The Processing (Renewal) display of OMB control numbers in from 8:30 a.m. to 4:30 p.m., Monday certain EPA regulations is consolidated AGENCY: Environmental Protection through Friday, excluding legal in 40 CFR part 9. Agency (EPA). holidays. The telephone number for the Burden Statement: The annual public ACTION: Notice. Reading Room is (202) 566–1744, and reporting and recordkeeping burden for the telephone number for the this collection of information is SUMMARY: In compliance with the Enforcement and Compliance Docket is estimated to average from 14 to 840 Paperwork Reduction Act (44 U.S.C. (202) 566–1752. hours per response. Burden means the 3501 et seq.), this document announces Use EPA’s electronic docket and total time, effort, or financial resources that an Information Collection Request comment system at http:// expended by persons to generate, (ICR) has been forwarded to the Office www.regulations.gov to either submit or maintain, retain, or disclose or provide of Management and Budget (OMB) for view public comments, access the index information to or for a Federal agency. review and approval. This is a request listing of the contents of the docket, and This includes the time needed to review to renew an existing approved to access those documents in the docket instructions; develop, acquire, install, collection. The ICR which is abstracted that are available electronically. Once in and utilize technology and systems for below describes the nature of the the system, select ‘‘docket search,’’ then

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key in the docket ID number identified and other information that have been Method 9 performance tests over the above. Please note that EPA’s policy is determined to be private. next 3 years. Secondly, there is an that public comments, whether An agency may not conduct or increase in the total number of submitted either electronically or in sponsor, and a person is not required to respondents subject to the rule due to a paper, will be made available for public respond to, a collection of information growth in the respondent universe. viewing at http://www.regulations.gov, unless it displays a currently valid OMB There is also an increase in the total as EPA receives them and without Control Number. The OMB Control labor and Agency costs as currently change, unless the comment contains Numbers for the EPA regulations are identified in the OMB Inventory of copyrighted material, Confidential listed in 40 CFR part 9 and 48 CFR Approved Burdens. The change in cost Business Information (CBI), or other chapter 15, and are identified on the estimates reflects the changes in information whose public disclosure is form and/or instrument, if applicable. respondent numbers (described above) restricted by statute. For further Burden Statement: The annual public and updated labor rates available from information about the electronic docket, reporting and recordkeeping burden for the Bureau of Labor Statistics. go to www.regulations.gov. this collection of information is Title: NSPS for Nonmetallic Mineral estimated to average 2 hours per John Moses, Processing (Renewal). response. ‘‘Burden’’ means the total Director, Collection Strategies Division. ICR Numbers: EPA ICR Number time, effort, or financial resources [FR Doc. 2012–11955 Filed 5–16–12; 8:45 am] 1084.12, OMB Control Number 2060– expended by persons to generate, BILLING CODE 6560–50–P 0050. maintain, retain, or disclose or provide ICR Status: This ICR is scheduled to information either to or for a Federal expire on June 30, 2012. Under OMB agency. This includes the time needed ENVIRONMENTAL PROTECTION regulations, the Agency may continue to to review instructions; develop, acquire, AGENCY conduct or sponsor the collection of install, and utilize technology and [EPA–HQ–OAR–2004–0501; FRL 9516–9] information while this submission is systems for the purposes of collecting, pending at OMB. validating, and verifying information, Agency Information Collection Abstract: The affected entities are processing and maintaining Activities; Submission to OMB for subject to the General Provisions of the information, and disclosing and Review and Approval; Comment NSPS at 40 CFR part 60, subpart A, and providing information; adjust the Request; EPA’s Green Power any changes, or additions to the existing ways to comply with any Partnership and Combined Heat and Provisions specified at 40 CFR part 60, previously applicable instructions and Power Partnership (Renewal) subpart OOO. requirements which have subsequently These regulations apply to the changed; train personnel to be able to AGENCY: Environmental Protection following affected facilities in fixed or respond to a collection of information; Agency (EPA). portable nonmetallic mineral processing search data sources; complete and ACTION: Notice. plants: Each crusher, grinding mill, review the collection of information; screening operation, bucket elevator, and transmit or otherwise disclose the SUMMARY: In compliance with the belt conveyor, bagging operation, information. Paperwork Reduction Act (PRA) (44 storage bin, and enclosed truck or Respondents/Affected Entities: U.S.C. 3501 et seq.), this document railcar loading station. These Owners or operators of nonmetallic announces that an Information regulations also applies to, crushers and mineral processing facilities Collection Request (ICR) has been grinding mills at hot mix asphalt Estimated Number of Respondents: forwarded to the Office of Management facilities that reduce the size of 4,697. and Budget (OMB) for review and nonmetallic minerals embedded in Frequency of Response: Initially and approval. This is a request to renew an recycled asphalt pavement and occasionally. existing approved collection. The ICR, subsequent affected facilities up to, but Estimated Total Annual Hour Burden: which is abstracted below, describes the not including, the first storage silo or 12,374. nature of the information collection and bin are subject to the provisions of the Estimated Total Annual Cost: its estimated burden and cost. subpart. $1,340,274, which includes $1,185,697 DATES: Any additional comments on Owners or operators of the affected in labor costs, $154,577 in capital/ this ICR should be submitted on or facilities must submit initial startup costs, and no operation and before June 18, 2012. notification, performance tests, and maintenance (O&M) costs. ADDRESSES: Submit your comments, periodic reports and results. Owners or Changes in the Estimates: There is an referencing Docket ID No. EPA–HQ– operators are also required to maintain increase in the labor hours for both the OAR–2004–0501 to (1) EPA online records of the occurrence and duration respondents and the Agency in this ICR using www.regulations.gov (our of any startup, shutdown, or compared to the previous ICR. This is preferred method); email: a-and-r- malfunction in the operation of an due to two considerations. First, [email protected], or by mail to affected facility, or any period during performance testing for existing sources EPA Docket Center, Environmental which the monitoring system is will begin 5 years after the initial Protection Agency, Air and Radiation inoperative. performance testing following the 2009 All reports are sent to the delegated ICR amendments, which corresponds to Docket, Mail Code: 28221T, 1200 state or local authority. In the event that the third year of this renewal. Beginning Pennsylvania Ave. NW., Washington, there is no such delegated authority, the in the third year of this ICR renewal, DC and (2) OMB by mail: Office of reports are sent directly to the EPA 60.9 sources per year would conduct 5- Information and Regulatory Affairs, regional office. This information is year repeat fugitive Method 9 Office of Management and Budget being collected to assure compliance performance tests. These tests are only (OMB), Attention: Desk Officer for EPA, with 40 CFR part 60, subpart OOO, as required for crushed/broken stone and 725 17th Street NW., Washington, DC authorized in section 112 and 114(a) of sand/gravel facilities that do not have 20503. the Clean Air Act. The required water sprays. This yields an annual FOR FURTHER INFORMATION CONTACT: information consists of emissions data average of 20.3 sources requiring Mollie Lemon, Climate Protection

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Partnerships Division, Office of submission is pending at OMB. An Burden means the total time, effort, or Atmospheric Programs, MC 6202J, Agency may not conduct or sponsor, financial resources expended by persons Environmental Protection Agency, 1200 and a person is not required to respond to generate, maintain, retain, or disclose Pennsylvania Ave. NW., Washington, to, a collection of information, unless it or provide information to or for a DC 20460; telephone number: 202–343– displays a currently valid OMB control Federal agency. This includes the time 9859; fax number: 202–343–2208; email number. The OMB control numbers for needed to review instructions; develop, address: [email protected]. EPA’s regulations in title 40 of the CFR, acquire, install, and utilize technology SUPPLEMENTARY INFORMATION: EPA has after appearing in the Federal Register and systems for the purposes of submitted the following ICR to OMB for when approved, are listed in 40 CFR collecting, validating, and verifying review and approval according to the part 9, are displayed either by information, processing and procedures prescribed in 5 CFR 1320.12. publication in the Federal Register or maintaining information, and disclosing On December 28, 2011 (76 FR 81491), by other appropriate means, such as on and providing information; adjust the the related collection instrument or EPA sought comments on this ICR existing ways to comply with any form, if applicable. The display of OMB pursuant to 5 CFR 1320.8(d). EPA previously applicable instructions and control numbers in certain EPA received two comments during the requirements which subsequently have comment period, which are addressed regulations is consolidated in 40 CFR part 9. changed; train personnel to be able to in the ICR. Any additional comments on respond to a collection of information; this ICR should be submitted to EPA Abstract: In 2001, EPA launched two search data sources; complete and and OMB within 30 days of this notice. new partnership programs with industry review the collection of information; EPA has established a public docket and other stakeholders: the Green Power for this ICR under Docket ID No. EPA– Partnership (GPP) and the Combined and transmit or otherwise disclose the HQ–OAR–2004–0501, which is Heat and Power Partnership (CHPP). information. available for online viewing at These voluntary partnership programs Respondents/Affected Entities: www.regulations.gov, or in person encourage organizations to invest in Organizations participating in the Green viewing at the Air and Radiation Docket clean, efficient energy technologies, Power Partnership and Combined Heat in the EPA Docket Center (EPA/DC), including renewable energy and and Power Partnership. combined heat and power. EPA collects EPA West, Room 3334, 1301 Estimated Total Annual Number of information from GPP and CHPP Constitution Ave. NW., Washington, Respondents: 2,216. DC. The EPA/DC Public Reading Room Partners to assess the success of these is open from 8:30 a.m. to 4:30 p.m., programs in achieving their national Frequency of Response: annually, on Monday through Friday, excluding legal energy and greenhouse gas (GHG) occasion, and one time. holidays. The telephone number for the reduction goals. Estimated Total Annual Hour Burden: Reading Room is 202–566–1744, and the EPA has developed this ICR to obtain 4,800. authorization to collect information telephone number for the Air and Estimated Total Annual Cost: Radiation Docket is 202–566–1742. from organizations participating in the $256,053, which includes no capital Use EPA’s electronic docket and GPP and CHPP. Organizations that join costs, $6,744 in operations & comment system at www.regulations.gov these programs voluntarily agree to the to submit or view public comments, following respective actions: (1) maintenance (O&M) costs, and $249,309 access the index listing of the contents Designating a GPP or CHPP liaison and in labor costs. of the docket, and access those filling out a Partnership Agreement or Changes in the Estimates: There is a documents in the docket that are Letter of Intent, respectively, (2) for the decrease of 1,023 hours in the total available electronically. Once in the GPP, reporting to EPA on an annual estimated burden currently identified in system, select ‘‘docket search,’’ then key basis their progress toward achieving the OMB Inventory of Approved ICR in the docket ID number identified their green power commitment via a 3- Burdens. Since the last ICR renewal, above. Please note that EPA’s policy is page reporting form; (3) for the CHPP, both the GPP and CHPP have that public comments, whether reporting to EPA information on their introduced program efficiencies to submitted electronically or in paper, existing CHP projects, new project reduce program burden by encouraging will be made available for public development, and other CHP-related the electronic submission of documents viewing at www.regulations.gov as EPA activities via a one-page reporting form directly to the program support receives them and without change, (for projects) or via an informal email or contractors. The average number of unless the comment contains phone call (for other CHP-related hours per Partner decreased from 3.24 to activities). Partners are organizational copyrighted material, confidential 2.17 hours, while the total cost entities that have volunteered to business information (CBI), or other decreased due to a downward correction information whose public disclosure is participate in either Partnership of the labor rates used to calculate restricted by statute. For further program. respondent costs and a reduction in information about the electronic docket, Burden Statement: The annual public go to www.regulations.gov. reporting and recordkeeping burden for hours per response. Title: Reporting Requirements under this collection of information is John Moses, EPA’s Green Power Partnership and estimated to equal 2 hours per response. Director, Collection Strategies Division. Combined Heat and Power (CHP) The average number of annual burden [FR Doc. 2012–11956 Filed 5–16–12; 8:45 am] Partnership. hours per type of response is: 1.96 hours ICR numbers: EPA ICR No. 2173.05, for a Partnership Agreement (a one-time BILLING CODE 6560–50–P OMB Control No. 2060–0578. burden for GPP Partners), 2.14 hours for ICR Status: This ICR currently is a Letter of Intent (a one-time burden for scheduled to expire on June 30, 2012. CHPP Partners), 1.38 hours for the Under OMB regulations, the Agency Partner Yearly Report for the GPP, and may continue to conduct or sponsor the 3.51 hours for the Partner Yearly Report collection of information while this for the CHPP.

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ENVIRONMENTAL PROTECTION EPA has established a public docket must be transmitted to an appropriate AGENCY for this ICR under Docket ID No. EPA– official of the government in the HQ–OPP–2011–0766, which is available importing country. This information is [EPA–HQ–OPP–2011–0766; FRL–9517–3] for online viewing at submitted in the form of annual or per- www.regulations.gov, or in person shipment statements to the EPA, which Agency Information Collection viewing at the OPP Regulatory Public maintains original records and transmits Activities; Submission to OMB for Docket in the EPA Docket Center (EPA/ copies, along with an explanatory letter, Review and Approval; Comment DC), EPA West, Room 3334, 1301 to appropriate government officials of Request; Foreign Purchaser Constitution Ave. NW., Washington, the countries which are importing the Acknowledgement Statement of DC. The EPA/DC Public Reading Room pesticide. Unregistered Pesticides is open from 8 a.m. to 4:30 p.m., In addition to the export notification Monday through Friday, excluding legal for unregistered pesticides, FIFRA AGENCY: Environmental Protection holidays. The telephone number for the requires that all exported pesticides Agency (EPA). Reading Room is 202–566–1744. include appropriate labeling. Export ACTION: Notice. Use EPA’s electronic docket and labeling requirements meet the comment system at definition of third-party notification. In SUMMARY: In compliance with the www.regulations.gov, to submit or view the interests of consolidating various Paperwork Reduction Act (44 U.S.C. public comments, access the index related information collection requests, 3501 et seq.), this document announces listing of the contents of the docket, and this ICR includes burden estimates for that the following Information to access those documents in the docket the FPAS requirement for unregistered Collection Request (ICR) has been that are available electronically. Once in pesticides, as well as the labeling forwarded to the Office of Management the system, select ‘‘docket search,’’ then requirement for all exported pesticides, and Budget (OMB) for review and key in the docket ID number identified both registered and unregistered. These approval: Foreign Purchaser above. Please note that EPA’s policy is burdens have been consolidated in this Acknowledgement Statement of that public comments, whether information collection since the Unregistered Pesticides; EPA ICR No. submitted electronically or in paper, implementation of the 1993 pesticide 0161.12, OMB Control No. 2070–0027. will be made available for public export policy governing the export of The ICR, which is abstracted below, viewing at www.regulations.gov as EPA pesticides, devices, and active describes the nature of the information receives them and without change, ingredients used in producing collection activity and its expected unless the comment contains pesticides. burden and costs. copyrighted material, confidential Responses to the collection of DATES: Additional comments may be business information (CBI), or other information are mandatory (see 40 CFR submitted on or before June 18, 2012. information whose public disclosure is 168, subpart D). An Agency may not ADDRESSES: Submit your comments, restricted by statute. For further conduct or sponsor, and a person is not referencing Docket ID No. EPA–HQ– information about the electronic docket, required to respond to, a collection of OPP–2011–0766, to (1) EPA online go to www.regulations.gov. information, unless it displays a using www.regulations.gov (our Title: Foreign Purchaser currently valid OMB control number. preferred method), or by mail to: EPA Acknowledgement Statement of The OMB control numbers for EPA’s Docket Center, Environmental Unregistered Pesticides. regulations in title 40 of the CFR, after Protection Agency, Office of Pesticide ICR numbers: EPA ICR No. 0161.12, appearing in the Federal Register when Programs Regulatory Public Docket OMB Control No. 2070–0027. approved, are listed in 40 CFR part 9, ICR Status: This is a request to renew (28221T), 1200 Pennsylvania Ave. NW., are displayed either by publication in an existing approved collection. This Washington, DC 20460, and (2) OMB by the Federal Register or by other ICR is scheduled to expire on July 31, mail to: Office of Information and appropriate means, such as on the 2012. Under OMB regulations, the Regulatory Affairs, Office of related collection instrument or form, if Agency may continue to conduct or Management and Budget (OMB), applicable. The display of OMB control sponsor the collection of information Attention: Desk Officer for EPA, 725 numbers in certain EPA regulations is while this submission is pending at 17th Street NW., Washington, DC 20503. consolidated in 40 CFR part 9. OMB. Burden Statement: The annual public FOR FURTHER INFORMATION CONTACT: Abstract: This information collection reporting and recordkeeping burden for Scott Drewes, Field and External Affairs program is designed to enable the this collection of information is Division, (7506P), Environmental Environmental Protection Agency (EPA) estimated to average from one to eight Protection Agency, 1200 Pennsylvania to provide notice to foreign purchasers hours per response. Burden means the Ave. NW., Washington, DC 20460; of unregistered pesticides exported from total time, effort, or financial resources telephone number: (703) 347–0107; fax the United States that the pesticide expended by persons to generate, number: (703) 305–5884; email address: product cannot be sold in the United maintain, retain, or disclose or provide [email protected]. States. Section 17(a)(2) of the Federal information to or for a Federal agency. SUPPLEMENTARY INFORMATION: EPA has Insecticide, Fungicide, and Rodenticide This includes the time needed to review submitted the following ICR to OMB for Act (FIFRA) requires an exporter of any instructions; develop, acquire, install, review and approval according to the pesticide not registered under FIFRA and utilize technology and systems for procedures prescribed in 5 CFR 1320.12. section 3 or sold under FIFRA section the purposes of collecting, validating, On November 30, 2011 (76 FR 74051), 6(a)(1) to obtain a signed statement from and verifying information, processing EPA sought comments on this ICR the foreign purchaser acknowledging and maintaining information, and pursuant to 5 CFR 1320.8(d). EPA that the purchaser is aware that the disclosing and providing information; received no comments during the pesticide is not registered for use in, and adjust the existing ways to comply with comment period. Any additional cannot be sold in, the United States. A any previously applicable instructions comments on this ICR should be copy of this statement, which is known and requirements which have submitted to EPA and OMB within 30 as the Foreign Purchaser subsequently changed; train personnel days of this notice. Acknowledgement Statement, or FPAS, to be able to respond to a collection of

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information; search data sources; decrease in the associated burden from The inventions pertain to hybrid complete and review the collection of 2,442 hours in the previous renewal to vehicle technology, particularly information; and transmit or otherwise 2,420 hours in the current renewal. This hydraulic hybrid drive systems, disclose the information. change is an adjustment. methods, and components. The Respondents/Affected Entities: John Moses, proposed license will contain Entities potentially affected by this ICR appropriate terms, limitations, and are individuals or entities that either Director, Collection Strategies Division. [FR Doc. 2012–11951 Filed 5–16–12; 8:45 am] conditions negotiated in accordance manufacture and export or that with 35 U.S.C. 209 and 37 CFR 404.5 BILLING CODE 6560–50–P reformulate or repackage and export and 404.7 of the U.S. Government unregistered pesticides. The North patent licensing regulations. EPA will American Industrial Classification ENVIRONMENTAL PROTECTION finalize terms and conditions and grant System (NAICS) code assigned to the AGENCY the license unless, within 15 days from parties responding to this information is the date of this notice, EPA receives, at 325300. [FRL–9673–3] Estimated Number of Respondents: the address below, written objections to 50. Intent To Grant Patent License the grant, together with supporting Frequency of Response: On occasion. documentation. The documentation AGENCY: Environmental Protection from objecting parties having an interest Estimated Total Annual Hour Burden: Agency (EPA). 24,470. in practicing the inventions listed in the ACTION: Notice of Intent to Grant Co- Estimated Total Annual Cost: patents and patent applications below Exclusive Patent License. $1,461,658, includes $0 annualized should include an application for a capital or O&M costs. SUMMARY: Pursuant to 35 U.S.C. 207 nonexclusive license with the Changes in the Estimates: There is a (Patents) and 37 CFR part 404 (U.S. information set forth in 37 CFR 404.8. decrease of 22 hours in the total Government patent licensing The EPA Patent Attorney and other EPA estimated burden currently identified in regulations), EPA hereby gives notice of officials will review all written the OMB Inventory of Approved ICR its intent to grant a co-exclusive, responses and then make Burdens. This decrease reflects EPA’s royalty-bearing, revocable license to recommendations on a final decision to updating of burden estimates for this practice the inventions described and the Director or Deputy Director of the collection based upon historical claimed in the U.S. patents and patent Office of Transportation and Air information on the number of foreign applications listed at the end of this Quality, who have been delegated the purchaser acknowledgement statements message, and all corresponding patents authority to issue patent licenses under submitted annually. Based upon revised issued throughout the world, and all EPA Delegation 1–55. estimates, the average number of foreign reexamined patents and reissued purchaser acknowledgement statements patents granted in connection with such The proposed license will apply to submitted annually has decreased from patent applications, to American the following patents and patent 2,304 to 2,283, with a corresponding Hydraulic Power, LLC of Michigan. applications:

METHOD OR VEHICLE LICENSED INVENTIONS

Patent No. Title Date issued

5,495,912 ...... Hybrid Powertrain Vehicle ...... March 5, 1996. 5,887,674 ...... Continuously Smooth Transmission ...... March 30, 1999. 6,719,080 ...... Hydraulic Hybrid Vehicle ...... April 13, 2004. 6,876,098 ...... Methods of Operating a Series Hybrid Vehicle ...... April 5, 2005. 7,456,509 ...... Methods of Operating a Series Hybrid Vehicle (div) ...... November 25, 2008. 7,337,869 ...... Hydraulic Hybrid Vehicle with Integrated Drive Module and Four-Wheel-Drive, and Method of Oper- March 4, 2008. ation Thereof. 7,252,020 ...... Vehicle Drivetrain including a Clutchless Transmission, and Method of Operation ...... August 7, 2007. 6,998,727 ...... Methods of Operating a Parallel Hybrid Vehicle Having an Internal Combustion Engine and a Sec- February 14, 2006. ondary Power Source. 7,104,349 ...... Hybrid Powertrain Motor Vehicle with Homogenous Charge Compression Ignition (HCCI) Engine, September 12, 2006. and Method of Operation Thereof. 7,857,082 ...... Methods of Operating a Series Hybrid Vehicle (Div.) ...... December 28, 2010. 7,984,783 ...... Hydraulic Hybrid Vehicle with Integrated Hydraulic Drive Module and Four-Wheel-Drive, and Meth- July 26, 2011. od of Operation Thereof (Div.). 8,118,132 ...... Hydraulic Hybrid Vehicle Methods of Safe Operation ...... February 21, 2012. 8,162,094 ...... Hydraulic Hybrid Vehicle with Large-Ratio Shift Transmission, and Method of Operation ...... April 24, 2012.

Application No. Title Date filed

PCT/US2011/ Hydraulic Hybrid Vehicle with Safe and Efficient Hydrostatic Operation ...... March 9, 2011. 027667. 12/654,321 ...... Methods of Optimizing Efficiency of a Series Hybrid Vehicle with Multi-Gear Transmission ...... December 17, 2009. 12/711,603 ...... Hydraulic-Electric Regenerative Energy Storage System ...... February 24, 2010. PCT/US2011/ Methods for Safe Operation of Hydraulic Hybrid Vehicles with Over-Center Pump/Motors ...... April 8, 2011. 031806. 12/731,326 ...... Regenerative Energy Storage System for Hybrid Locomotive ...... March 25, 2010. 12/955,795 ...... Methods of Operating a Series Hybrid Vehicle (Div.) ...... November 29, 2010. 13/356,276 ...... Hydraulic Hybrid Vehicle Methods of Safe Operation ...... January 23, 2012. 13/424,027 ...... Hydraulic Hybrid Vehicle with Large-Ratio Shift Transmission, and Method of Operation Thereof ..... March 19, 2012.

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Application No. Title Date filed

61/619,123 ...... Hydraulic Hybrid Vehicle Control Methods ...... April 2, 2012.

HYDRAULIC COMPONENT LICENSED INVENTIONS

Patent No. Title Date issued

6,619,325 ...... Hydraulic Hybrid Accumulator Shut-off Valve ...... September 16, 2003. 6,996,982 ...... Method and Device for Switching Hydraulic Fluid Supplies, such as for a Hydraulic Pump/Motor ..... February 14, 2006. 7,014,429 ...... High-Efficiency, Large Angle, Variable Displacement Hydraulic Pump/Motor ...... March 21, 2006. 7,108,016 ...... Lightweight Low Permeation Piston-in-Sleeve Accumulator ...... September 19, 2006. 7,121,304 ...... Low Permeation Hydraulic Accumulator ...... October 17, 2006. 7,305,914 ...... Hydraulic Actuator Control Valve ...... December 11, 2007. 6,170,524 ...... Fast Valve and Actuator ...... January 9, 2001. 7,305,915 ...... Efficient Pump/Motor with Reduced Energy Loss ...... December 11, 2007. 7,374,005 ...... Opposing Pump/Motors ...... May 20, 2008. 7,500,424 ...... Hydraulic Machine Having Pressure Equalization ...... March 10, 2009. 7,527,074 ...... Hydraulic Pressure Accumulator ...... May 5, 2009. 7,537,075 ...... Hydraulic Hybrid Vehicle with Integrated Hydraulic Drive Module and Four-Wheel-Drive, and Meth- May 26, 2009. od of Operation Thereof (Div.). 7,553,085 ...... Fluid Bearing and Method of Operation ...... June 30, 2009. 7,594,802 ...... Large Angle Sliding Valve Plate Pump/Motor ...... September 29, 2009. 7,617,761 ...... Opposing Pump/Motors (divisional) ...... November 17, 2009. 7,677,871 ...... High-Efficiency, Large Angle, Variable Displacement Hydraulic Pump/Motor (Divisional) ...... March 16, 2010. 8,052,116 ...... Quiet Fluid Supply Valve ...... November 8, 2011. 8,100,221 ...... Engine-Off Power Steering System ...... January 24, 2012. 8,020,587 ...... Piston-in-Sleeve Hydraulic Pressure Accumulator ...... September 20, 2011. 7,987,940 ...... Hydraulic Accumulator and Fire Suppression System ...... August 2, 2011.

Application No. Title Date filed

11/233,822 ...... Independent Displacement Opposing Pump/Motors and Method of Operation ...... September 22, 2005. 11/540,089 ...... Safe Over-Center Pump/Motor ...... September 29, 2006. 12/701,438 ...... Variable Length Bent-Axis Pump/Motor ...... February 5, 2010. 12/567,938 ...... Hydraulic Circuit and Manifold with Multi-Function Valve ...... September 28, 2009. 13/415,109 ...... Modular Hydraulic Hybrid Drivetrain ...... March 8, 2012. 13/232,677 ...... Engine-Off Power Steering System ...... September 14, 2011. 12/215,438 ...... On-Demand Power Brake System and Method ...... June 26, 2008. 13/433,839 ...... On-Board Hydraulic Fluid Degasification System for a Hydraulic Hybrid Vehicle ...... March 29, 2012. 61/609,597 ...... Radial Hydraulic Motor for a Hydraulic Hybrid Vehicle ...... March 12, 2012. 61/635,085 ...... Integrated Hydraulic Accumulator Dual Shut-Off Valve ...... April 18, 2012.

DATES: Comments on this notice must be ENVIRONMENTAL PROTECTION provide EPA with new data on the received by EPA at the address listed AGENCY technical and economic feasibility of methyl bromide alternatives. below by June 1, 2012. [EPA–HQ–OAR–2012–0375, FRL–9672–8] DATES FOR FURTHER INFORMATION CONTACT: : Applications for the 2015 critical David Read, Attorney Advisor, Protection of Stratospheric Ozone: use exemption must be postmarked on or before August 15, 2012. Environmental Protection Agency, Request for Methyl Bromide Critical Use Exemption Applications for 2015 National Vehicle Fuel Emissions ADDRESSES: EPA encourages users to Laboratory, Office of Air and Radiation, AGENCY: Environmental Protection submit their applications electronically 2565 Plymouth Road, Ann Arbor, MI Agency (EPA). to Jeremy Arling, Stratospheric Protection Division, at 48105, telephone (734) 214–4367. ACTION: Notice of Solicitation of [email protected]. If the Applications and Information on Dated: May 10, 2012. application is submitted electronically, Alternatives. Geoff Cooper, applicants must fax a signed copy of Assistant General Counsel, General Law SUMMARY: EPA is soliciting applications Worksheet 1 to 202–343–9055 by the Office. for the critical use exemption from the application deadline. Applications for [FR Doc. 2012–11965 Filed 5–16–12; 8:45 am] phaseout of methyl bromide for 2015. the methyl bromide critical use BILLING CODE 6560–50–P Critical use exemptions last only one exemption can also be submitted by year. All entities interested in obtaining U.S. mail to: U.S. Environmental a critical use exemption for 2015 must Protection Agency, Office of Air and provide EPA with technical and Radiation, Stratospheric Protection economic information to support a Division, Attention Methyl Bromide ‘‘critical use’’ claim and must do so by Team, Mail Code 6205J, 1200 the deadline specified in this notice Pennsylvania Ave. NW., Washington, even if they have applied for an DC 20460 or by courier delivery to: U.S. exemption in previous years. Today’s Environmental Protection Agency, notice also invites interested parties to Office of Air and Radiation,

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Stratospheric Protection Division, application on behalf of your include the costs to retrofit equipment Attention Methyl Bromide Review commodity group. or design and construct new fumigation Team, 1310 L St. NW., Room 1047E, In addition to requesting information chambers for these alternatives. For the Washington, DC 20005. from applicants for the critical use economic assessment applicants must FOR FURTHER INFORMATION CONTACT: exemption, this solicitation for provide the following: The amount of General Information: U.S. EPA information provides an opportunity for fumigant gas used (both methyl bromide Stratospheric Ozone Information any interested party to provide EPA and alternatives), price per pound of the Hotline, 1–800–296–1996; also http:// with information on methyl bromide fumigant gas from the most recent use www.epa.gov/ozone/mbr. alternatives (e.g., technical and/or season, application rates, differences in Technical Information: Bill Chism, U.S. economic feasibility research). labor inputs (i.e., hours and wages) associated with alternatives, the amount Environmental Protection Agency, B. How do I obtain an application form of commodity treated with each Office of Pesticide Programs (7503P), for the methyl bromide critical use fumigant/treatment and the value of the 1200 Pennsylvania Ave. NW., exemption? Washington, DC 20460, 703–308– commodity being treated/produced. 8136. Email: [email protected]. An application form for the methyl Also provide cost information on any Regulatory Information: Jeremy Arling, bromide critical use exemption can be other practices or equipment used (e.g. U.S. Environmental Protection obtained either in electronic or hard- sanitation and IPM) that are not needed Agency, Stratospheric Protection copy form. EPA encourages use of the when methyl bromide is used for Division (6205J), 1200 Pennsylvania electronic form. Applications can be fumigation. Include information on the Ave. NW., Washington, DC 20460, obtained in the following ways: size of fumigation chambers where 202–343–9055. Email: 1. PDF, Microsoft Word, and methyl bromide is used, the percent of [email protected]. Microsoft Excel formats at EPA’s Web commodity fumigated under tarps, the site: http://www.epa.gov/ozone/mbr/ length of the harvest season, peak of the SUPPLEMENTARY INFORMATION: cueinfo.html; harvest season and duration, and Table of Contents 2. PDF, Microsoft Word, and volume of commodity treated daily at Microsoft Excel formats at Docket ID No. the harvest peak. I. What do I need to know to respond to this EPA–HQ–OAR–2012–0375. The docket Where applicable, also provide the request for applications? A. Who can respond to this request for can be accessed at http:// following: Examples of specific information? www.regulations.gov. To obtain hard customer requests regarding pest B. How do I obtain an application form for copies of docket materials, please email infestation and examples of any the methyl bromide critical use the EPA Docket Center: a-and-r- phytosanitary requirements of foreign exemption? [email protected]. markets (e.g., import requirements of C. What must applicants address when 3. Hard copies can be ordered through other countries) that may necessitate use applying for a critical use exemption? the Stratospheric Ozone Protection of methyl bromide accompanied by D. What if I applied for a critical use Hotline at 1–800–296–1996. explanation of why the methyl bromide exemption in a previous year? quarantine and preshipment (QPS) E. What portions of the applications will be C. What must applicants address when exemption is not applicable for this considered confidential business applying for a critical use exemption? information? purpose. The application must also II. What is the legal authority for the critical To support the assertion that a contain a description of your future use exemption? specific use of methyl bromide meets research plans which includes the A. What is the Clean Air Act (CAA) the requirements of the critical use pest(s), chemical(s), or management authority for the critical use exemption? exemption, applicants must practice(s) you will be testing in the B. What is the Montreal Protocol authority demonstrate that there are no future to support this CUE. Also include for the critical use exemption? technically and economically feasible information on what pest control C. What is the timing for applications for alternatives available for that use. EPA’s the 2015 control period? practices organic producers are using for Web site contains a list of available and their commodity. I. What do I need to know to respond potential alternatives. This list can be to this request for applications? accessed at http://www.epa.gov/ozone/ Structures and Facilities (Flour Mills, mbr/alts.html. Applications must Rice Mills, Pet Food) A. Who can respond to this request for address the technical and economic Applicants must address potential information? feasibility of using these alternatives. economic losses due to pest pressures, Entities interested in obtaining a Specifically, applications must include changes in quality, changes in timing, critical use exemption must complete the following information for the U.S. to and any other economic implications for the application form available at successfully defend its nominations for producers when converting to http://www.epa.gov/ozone/mbr/ critical uses. alternatives. Alternatives for which such cueinfo.html. The application may be information is needed include: Sulfuryl submitted either by a consortium Commodities Such as Dried Fruit and fluoride, micro-sanitation, and/or heat. representing multiple users who have Nuts The applicant should include the costs similar circumstances or by individual Applicants must address potential to retrofit equipment for these pest users. EPA encourages groups of users economic losses due to pest pressures, control methods. For the economic with similar circumstances to submit a changes in quality, changes in timing, assessment applicants must provide the single application (for example, any and any other economic implications for following: Price per pound of fumigant number of pre-plant users with similar producers when converting to gas used (both methyl bromide and soil, pest, and climactic conditions can alternatives. Alternatives for which such alternatives) from the most recent use join together to submit a single information is needed include: Sulfuryl season, application rates, differences in application). You should contact your fluoride, propylene oxide (PPO), labor inputs (i.e., hours and wages) local, state, regional or national phosphine, and/or controlled associated with alternatives, and value commodity association to find out atmosphere/temperature treatment of the commodity being treated/ whether it plans to submit an system (CATTS). The applicant should produced. List how many mills have

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been fumigated with methyl bromide labor inputs (i.e., hours and wages); and alternatives) from the most recent use over the last three years; the rate, any differences in equipment costs or season; application rates; value of the volume, and target CT of methyl time needed to operate equipment crop being produced; differences in bromide at each location; volume of associated with alternatives. The labor inputs (i.e., hours and wages); and each facility; number of fumigations per application must also contain a any differences in equipment costs or year; and date facility was constructed. description of your future research time needed to operate equipment Where applicable, also provide the plans which includes the pest(s), associated with alternatives. The following: Examples of specific chemical(s), or management practice(s) application must also contain a customer requests regarding pest you will be testing in the future to description of your future research infestation and examples of any support this CUE. plans which includes the pest(s), phytosanitary requirements of foreign chemical(s), or management practice(s) Strawberry Fruit markets (e.g., import requirements of you will be testing in the future to other countries) that may necessitate use Applicants must address potential support this CUE. of methyl bromide accompanied by changes to yield, quality, and timing explanation of why the QPS exemption when converting to alternatives, D. What if I applied for a critical use is not applicable for this purpose. The including: The mixture of 1,3- exemption in a previous year? application must also contain a dichloropropene plus chloropicrin, the Critical use exemptions are valid for description of your future research Georgia three way mixture of 1,3- only one year and do not automatically plans which includes the pest(s), dichloropropene plus chloropicrin plus renew. All users desiring to obtain an chemical(s), or management practice(s) metam (sodium or potassium), and any exemption for 2015 must apply to EPA you will be testing in the future to fumigationless system (if data are even if they have applied for critical support this CUE. Also include available). Applications must address uses in previous years. Because of the information on what pest control regulatory and economic implications latest changes in registrations, costs, and practices organic producers are using for for growers and/or your region’s economic aspects for producing critical their facilities. production of these crops using these use crops and commodities, applicants alternatives, including the costs to must fill out the application form Dried Cured Pork retrofit equipment and the differential completely. Applicants must list how many impact of buffers for methyl bromide E. What portions of the applications will facilities have been fumigated with plus chloropicrin compared to the be considered confidential business methyl bromide over the last three alternatives. For the economic information? years; the rate, volume, and target CT of assessment applicants must provide the methyl bromide at each location; following: Price per pound of fumigant You may assert a business volume of each facility; number of gas used (both methyl bromide and confidentiality claim covering part or all fumigations per year; and the materials alternatives) from the most recent use of the information by placing on (or from which the facility was constructed. season; application rates; value of the attaching to) the information, at the time The application must also contain a crop being produced; differences in it is submitted to EPA, a cover sheet, description of your future research labor inputs (i.e., hours and wages); and stamped or typed legend, or other plans which includes the pest(s), any differences in equipment costs or suitable form of notice employing chemical(s), or management practice(s) time needed to operate equipment language such as ‘‘trade secret,’’ you will be testing in the future to associated with alternatives. The ‘‘proprietary,’’ or ‘‘company support this CUE. application must also contain a confidential.’’ You should clearly description of your future research identify the allegedly confidential Cucurbits, Eggplant, Pepper, and plans which includes the pest(s), portions of otherwise non-confidential Tomato chemical(s), or management practice(s) documents, and you may submit them Applicants must address potential you will be testing in the future to separately to facilitate identification and changes to yield, quality, and timing support this CUE. handling by EPA. If you desire when converting to alternatives, confidential treatment only until a including: The mixture of 1,3- Nursery Stock, Orchard Replant, certain date or until the occurrence of a dichloropropene plus chloropicrin, the Ornamentals, and Strawberry Nursery certain event, your notice should state Georgia three way mixture of 1,3- Applicants must address potential that. Information covered by a claim of dichloropropene plus chloropicrin plus changes to yield, quality, and timing confidentiality will be disclosed by EPA metam (sodium or potassium), dimethyl when converting to alternatives, only to the extent, and by means of the disulfide (DMDS), and any including: The mixture of 1,3- procedures, set forth under 40 CFR part fumigationless system (if data are dichloropropene plus chloropicrin, the 2 subpart B; 41 FR 36752, 43 FR 40000, available). Applications must address Georgia three way mixture of 1,3- 50 FR 51661. If no claim of regulatory and economic implications dichloropropene plus chloropicrin plus confidentiality accompanies the for growers and/or your region’s metam (sodium or potassium), dimethyl information when EPA receives it, EPA production of these crops using these disulfide (DMDS), and steam. may make it available to the public alternatives, including the costs to Applications must address regulatory without further notice. retrofit equipment and the differential and economic implications for growers If you are asserting a business impact of buffers for methyl bromide and/or your region’s production of these confidentiality claim covering part or all plus chloropicrin compared to the crops using these alternatives, including of the information in the application, alternatives. For the economic the costs to retrofit equipment and the please submit a non-confidential assessment applicants must provide the differential impact of buffers for methyl version that EPA can place in the public following: Price per pound of fumigant bromide plus chloropicrin compared to docket for reference by other interested gas used (both methyl bromide and the alternatives. For the economic parties. Do not include on the alternatives) from the most recent use assessment applicants must provide the ‘‘Worksheet 6: Application Summary’’ season; application rates; value of the following: Price per pound of fumigant page of the application any information crop being produced; differences in gas used (both methyl bromide and that you wish to claim as confidential

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business information. Any information following criteria for a ‘‘critical use’’ Early 2013: Technical and Economic on Worksheet 6 shall not be considered determination and an exemption from Assessment Panel (TEAP) and Methyl confidential and will not be treated as the production and consumption Bromide Technical Options Committee such by the Agency. EPA will place a phaseout: (MBTOC) review the nominations for copy of Worksheet 6 in the public (a) That a use of methyl bromide critical use exemptions. domain. Please note, claiming business should qualify as ‘‘critical’’ only if the Mid 2013: Parties consider TEAP/ confidentiality may delay EPA’s ability nominating Party determines that: MBTOC recommendations. to review your application. (i) The specific use is critical because November 2013: Parties decide the lack of availability of methyl whether to authorize critical use II. What is the legal authority for the exemptions for methyl bromide for critical use exemption? bromide for that use would result in a significant market disruption; and production and consumption in 2015. A. What is the Clean Air Act (CAA) (ii) There are no technically and Mid 2014: EPA publishes proposed authority for the critical use exemption? economically feasible alternatives or rule for allocating critical use exemptions in the U.S. for 2015. In October 1998, Congress amended substitutes available to the user that are Late 2014: EPA publishes final rule the Clean Air Act to require EPA to acceptable from the standpoint of allocating critical use exemptions in the conform the U.S. phaseout schedule for environment and health and are suitable U.S. for 2015. methyl bromide to the provisions of the to the crops and circumstances of the January 1, 2015: Critical use Montreal Protocol on Substances that nomination. exemption permits the limited Deplete the Ozone Layer for (b) That production and consumption, production and import of methyl industrialized countries and to allow if any, of methyl bromide for a critical bromide for specified uses for the 2015 EPA to provide a critical use exemption. use should be permitted only if: control period. These amendments were codified in (i) All technically and economically Section 604 of the Clean Air Act, 42 feasible steps have been taken to Authority: 42 U.S.C. 7414, 7601, 7671– U.S.C. 7671c. Under EPA implementing minimize the critical use and any 7671q. regulations, the production and associated emission of methyl bromide; Dated: May 8, 2012. consumption of methyl bromide was (ii) Methyl bromide is not available in Sarah Dunham, phased out as of January 1, 2005. sufficient quantity and quality from Director, Office of Atmospheric Programs. Section 604(d)(6), as added in 1998, existing stocks of banked or recycled methyl bromide, also bearing in mind [FR Doc. 2012–11842 Filed 5–16–12; 8:45 am] allows EPA to exempt the production BILLING CODE 6560–50–P and import of methyl bromide from the the developing countries’ need for phaseout for critical uses, to the extent methyl bromide; consistent with the Montreal Protocol. (iii) It is demonstrated that an EXPORT-IMPORT BANK OF THE EPA regulations at 40 CFR 82.4 appropriate effort is being made to UNITED STATES prohibit the production and import of evaluate, commercialize and secure methyl bromide in excess of the amount national regulatory approval of Economic Impact Policy of unexpended critical use allowances alternatives and substitutes, taking into held by the producer or importer, unless consideration the circumstances of the This notice is to inform the public authorized under a separate exemption. particular nomination. * * * Non- that the Export-Import Bank of the Methyl bromide produced or imported Article 5 Parties [e.g., developed United States has received an by expending critical use allowances countries, including the U.S.] must application for a $4.3 billion direct loan may be used only for the appropriate demonstrate that research programs are to support the export of approximately category of approved critical uses as in place to develop and deploy $3.3 billion in U.S. equipment and listed in Appendix L to the regulations alternatives and substitutes. * * * services to establish a new (40 CFR 82.4(p)(2)). The use of methyl EPA has defined ‘‘critical use’’ in its petrochemical facility in Saudi Arabia. bromide that was produced or imported regulations at 40 CFR 82.3 in a manner The U.S. exports will enable the through the expenditure of production similar to Decision IX/6 paragraph (a). facility to produce approximately: 750,000 metric tons of linear low or consumption allowances prior to C. What is the timing for applications density polyethylene (LLDPE); 350,000 2005 is not confined to critical uses for the 2015 control period? under EPA’s phaseout regulations; metric tons of linear density however, other restrictions may apply. There is both a domestic and polyethylene (LDPE); 250,000 metric international component to the critical tons of elastomers; 200,000 metric tons B. What is the Montreal Protocol use exemption process. The projected of glycol ethers; 70,000 metric tons of authority for the critical use exemption? timeline for the process for the 2015 propylene glycol (MPG); 208,000 metric The Montreal Protocol provides that critical use exemption is as follows: tons of ethanolamines and the Parties may exempt ‘‘the level of May 17, 2012: Solicit applications for ethyleneamines; 400,000 metric tons of production or consumption that is the methyl bromide critical use polyether polyols; 200,000 metric tons necessary to satisfy uses agreed by them exemption for 2015. of toluene diisocyanate (TDI); and to be critical uses’’ (Art. 2H para 5). The August 15, 2012: Deadline for 400,000 metric tons of polymeric methyl Parties to the Protocol included this submitting critical use exemption diphenyl diisocyanate (PMDI). Initial language in the treaty’s methyl bromide applications to EPA. production at this facility is expected to phaseout provisions in recognition that Fall 2012: U.S. Government (EPA, be phased in from 2016 to 2018. alternatives might not be available by Department of State, U.S. Department of Available information indicates the 2005 for certain uses of methyl bromide Agriculture, and other interested Saudi petrochemical producer plans to agreed by the Parties to be ‘‘critical Federal agencies) prepares U.S. Critical sell its products as follows: The majority uses.’’ Use Nomination package. of LDPE, LLDPE and glycol ethers will In their Ninth Meeting (1997), the January 24, 2013: Deadline for U.S. be sold primarily in the Asia-Pacific Parties to the Protocol agreed to Government to submit U.S. nomination market, and the balance will be sold in Decision IX/6, setting forth the package to the Protocol Parties. the Europe, Middle East and Africa

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markets; the majority of elastomers, TDI, Federal Deposit Insurance Corporation. Office of Management and Budget PMDI, and polyether polyols will be Robert E. Feldman, (OMB) control number. The Federal sold primarily in Asia-Pacific, Europe, Executive Secretary. Financial Institutions Examination Middle East and Africa markets and [FR Doc. 2012–12089 Filed 5–15–12; 4:15 pm] Council (FFIEC), of which the agencies minority will be sold in the North and BILLING CODE P are members, has approved the Latin America; approximately equal agencies’ publication for public volumes of MPG will be sold primarily comment of a proposal to extend, in Asia-Pacific, Europe, Middle East and FEDERAL ELECTION COMMISSION without revision, the Country Exposure Africa markets; and approximately Report for U.S. Branches and Agencies equal volumes of ethanolamines and Sunshine Act Meeting of Foreign Banks (FFIEC 019), which is ethyleneamines will be sold globally. a currently approved information Interested parties may submit AGENCY: Federal Election Commission. collection. The Board is publishing this comments on this transaction by email DATE & TIME: Tuesday May 22, 2012 at proposal on behalf of the agencies. At to [email protected] or by 10:00 a.m. the end of the comment period, the mail to 811 Vermont Avenue NW., PLACE: 999 E Street NW., Washington, comments and recommendations Room 947, Washington, DC 20571, DC. received will be analyzed to determine within 14 days of the date this notice STATUS: This meeting will be closed to the extent to which the FFIEC and the appears in the Federal Register. the public. agencies should modify the reports. The Angela Mariana Freyre, Board will then submit the report to Items To Be Discussed OMB for review and approval. Senior Vice President and General Counsel. Compliance matters pursuant to 2 DATES: Comments must be submitted on [FR Doc. 2012–11953 Filed 5–16–12; 8:45 am] U.S.C. 437g. or before July 16, 2012. BILLING CODE 6690–01–P Audits conducted pursuant to 2 U.S.C. ADDRESSES: Interested parties are 437g, 438(b), and Title 26, U.S.C. invited to submit written comments to Matters concerning participation in civil the agency listed below. All comments, FEDERAL DEPOSIT INSURANCE actions or proceedings or arbitration. CORPORATION which should refer to the OMB control Internal personnel rules and procedures number, will be shared among the or matters affecting a particular Sunshine Act Meeting agencies. employee. You may submit comments, identified Pursuant to the provisions of the Investigatory records compiled for law by FFIEC 019 (7100–0213), by any of the ‘‘Government in the Sunshine Act’’ (5 enforcement purposes, or information following methods: U.S.C. 552b), notice is hereby given that which if written would be contained • Agency Web Site: at 10:03 a.m. on Tuesday, May 15, 2012, in such records. www.federalreserve.gov. Follow the the Board of Directors of the Federal Information the premature disclosure of instructions for submitting comments Deposit Insurance Corporation met in which would be likely to have a on the www.federalreserve.gov/ closed session to consider matters considerable adverse effect on the generalinfo/foia/ProposedRegs.cfm. related to the Corporation’s supervision, implementation of a proposed • Federal eRulemaking Portal: corporate, and resolution activities. Commission action. www.regulations.gov. Follow the In calling the meeting, the Board PERSON TO CONTACT FOR INFORMATION: instructions for submitting comments. determined, on motion of Director Judith Ingram, Press Officer, Telephone: • Email: Jeremiah O. Norton (Appointive), (202) 694–1220. [email protected]. seconded by Director Thomas M. Include the OMB control number in the Hoenig (Appointive), concurred in by Shelley E. Garr, Deputy Secretary of the Commission. subject line of the message. Director Thomas J. Curry (Comptroller • FAX: 202–452–3819 or 202–452– of the Currency), Director Richard [FR Doc. 2012–12114 Filed 5–15–12; 4:15 pm] 3102. Cordray (Director, Consumer Financial BILLING CODE 6715–01–P • Mail: Jennifer J. Johnson, Secretary, Protection Bureau) and Acting Board of Governors of the Federal Chairman Martin J. Gruenberg, that Reserve System, 20th Street and Corporation business required its FEDERAL RESERVE SYSTEM Constitution Avenue NW., Washington, consideration of the matters which were DC 20551. Proposed Agency Information to be the subject of this meeting on less All public comments are available Collection Activities; Comment than seven days’ notice to the public; from the Board’s Web site at Request that no earlier notice of the meeting was www.federalreserve.gov/generalinfo/ practicable; that the public interest did AGENCY: Board of Governors of the foia/ProposedRegs.cfm as submitted, not require consideration of the matters Federal Reserve System (Board). except as necessary for technical in a meeting open to public observation; ACTION: Notice and request for comment. reasons. Accordingly, your comments and that the matters could be will not be edited to remove any considered in a closed meeting by SUMMARY: In accordance with the identifying or contact information. authority of subsections (c)(2), (c)(4), requirements of the Paperwork Public comments may also be viewed (c)(6), (c)(8), (c)(9)(A)(ii), (c)(9)(B), and Reduction Act of 1995 (44 U.S.C. electronically or in paper in Room MP– (c)(10) of the ‘‘Government in the chapter 35), the Board, the Federal 500 of the Board’s Martin Building (20th Sunshine Act’’ (5 U.S.C. 552b(c)(2), Deposit Insurance Corporation (FDIC), and C Streets NW.) between 9:00 a.m. (c)(4), (c)(6), (c)(8), (c)(9)(A)(ii), (c)(9)(B), and the Office of the Comptroller of the and 5:00 p.m. on weekdays. and (c)(10)). Currency (OCC) (collectively, the Additionally, commenters may send a The meeting was held in the Board agencies) may not conduct or sponsor, copy of their comments to the OMB Room of the FDIC Building located at and the respondent is not required to desk officer for the agencies by mail to 550–17th Street NW., Washington, DC. respond to, an information collection Office of Information and Regulatory Dated: May 15, 2012. unless it displays a currently valid Affairs, U.S. Office of Management and

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Budget, New Executive Office Building, of the agencies’ functions, including been extended, revised, or implemented Room 10235, 725 17th Street NW., whether the information has practical on or after October 1, 1995, unless it Washington, DC 20503 or by fax to 202– utility; displays a currently valid OMB control 395–6974. b. The accuracy of the agencies’ number. FOR FURTHER INFORMATION CONTACT: estimate of the burden of the FOR FURTHER INFORMATION CONTACT: Additional information or a copy of the information collection, including the Federal Reserve Board Clearance collection may be requested from validity of the methodology and Officer—Cynthia Ayouch—Division of Cynthia Ayouch, Federal Reserve Board assumptions used; Research and Statistics, Board of Clearance Officer, 202–452–3829, c. Ways to enhance the quality, Governors of the Federal Reserve Division of Research and Statistics, utility, and clarity of the information to System, Washington, DC 20551, (202) Board of Governors of the Federal be collected; 452–3829. Telecommunications Device d. Ways to minimize the burden of the Reserve System, 20th and C Streets for the Deaf (TDD) users may contact information collection on respondents, NW., Washington, DC 20551. (202) 263–4869, Board of Governors of including through the use of automated Telecommunications Device for the Deaf the Federal Reserve System, collection techniques or other forms of (TDD) users may call 202–263–4869. Washington, DC 20551. information technology; SUPPLEMENTARY INFORMATION: Proposal and OMB Desk Officer—Shagufta to extend for three years, without e. Estimates of capital or start up costs Ahmed—Office of Information and revision, the following currently and costs of operation, maintenance, Regulatory Affairs, Office of approved collection of information: and purchase of services to provide Management and Budget, New Report Title: Country Exposure Report information. Executive Office Building, Room 10235, for U.S. Branches and Agencies of Comments submitted in response to 725 17th Street NW.,Washington, DC Foreign Banks. this notice will be shared among the 20503. Form Number: FFIEC 019. agencies. All comments will become a Final approval under OMB delegated OMB Number: 7100–0213. matter of public record. Written authority of the extension for three Frequency of Response: Quarterly. comments should address the accuracy years, with revision, of the following Affected Public: U.S. branches and of the burden estimate and ways to reports: agencies of foreign banks. 1. Report title: Senior Loan Officer Estimated Number of Respondents: minimize burden including the use of automated collection techniques or the Opinion Survey on Bank Lending 168. Practices. Estimated Average Time per use of other forms of information technology as well as other relevant Agency form number: FR 2018. Response: 10 hours. OMB control number: 7100–0058. Estimated Total Annual Burden: aspects of the information collection Frequency: Up to six times a year. 6,720 hours. request. Reporters: Domestically chartered Board of Governors of the Federal Reserve large commercial banks and large U.S. General Description of Reports System, May 14, 2012. branches and agencies of foreign banks. This information collection is Robert deV. Frierson, Estimated annual reporting hours: mandatory: 12 U.S.C. 3906 for all Deputy Secretary of the Board. agencies; 12 U.S.C. 3105 and 3108 for 1,248 hours. [FR Doc. 2012–11939 Filed 5–16–12; 8:45 am] Estimated average hours per response: the Board; sections 7 and 10 of the BILLING CODE 6210–01–P Federal Deposit Insurance Act (12 2 hours. U.S.C. 1817, 1820) for the FDIC; and the Number of respondents: 104. General description of report: This National Bank Act (12 U.S.C. 161) for FEDERAL RESERVE SYSTEM the OCC. This information collection is information collection is authorized by given confidential treatment under the Agency Information Collection Sections 2A, 12A and 11 of the Federal Freedom of Information Act (5 U.S.C. Activities: Announcement of Board Reserve Act (12 U.S.C. 225a, 248(a) and 552(b)(8)). Approval Under Delegated Authority 12 U.S.C. § 263)) and Section 7 of the and Submission to OMB International Banking Act (12 U.S.C. Abstract 3105(c)(2)) and is voluntary. Individual All individual U.S. branches and AGENCY: Board of Governors of the respondent data are regarded as agencies of foreign banks that have more Federal Reserve System. confidential under the authority of than $30 million in direct claims on SUMMARY: Notice is hereby given of the exemption 4 of the Freedom of residents of foreign countries must file final approval of proposed information Information Act (5 U.S.C. 552(b)(4)). the FFIEC 019 report quarterly. collections by the Board of Governors of Abstract: The FR 2018 is conducted Currently, all respondents report the Federal Reserve System (Board) with a senior loan officer at each adjusted exposure amounts to the five under OMB delegated authority, as per respondent bank, generally through largest countries having at least $20 5 CFR 1320.16 (OMB Regulations on electronic submission, up to six times a million in total adjusted exposure. The Controlling Paperwork Burdens on the year. The purpose of the survey is to agencies collect this data to monitor the Public). Board-approved collections of provide qualitative and limited extent to which such branches and information are incorporated into the quantitative information on credit agencies are pursuing prudent country official OMB inventory of currently availability and demand, as well as risk diversification policies and limiting approved collections of information. evolving developments and lending potential liquidity pressures. No Copies of the Paperwork Reduction Act practices in the U.S. loan markets. changes are proposed to the FFIEC 019 Submission, supporting statements and Consequently, a portion of the questions reporting form or instructions. approved collection of information in each survey typically covers special instrument(s) are placed into OMB’s topics of timely interest. There is the Request for Comment public docket files. The Federal Reserve option to survey other types of Comments are invited on: may not conduct or sponsor, and the respondents (such as other depository a. Whether the information collection respondent is not required to respond institutions, bank holding companies, or is necessary for the proper performance to, an information collection that has other financial entities) should the need

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arise. The FR 2018 survey provides developing trends in bank funding must be received not later than May 31, crucial information for monitoring and practices, enabling the Federal Reserve 2012. understanding the evolution of lending to distinguish these trends from A. Federal Reserve Bank of Atlanta practices at banks and developments in transitory phenomena. (Chapelle Davis, Assistant Vice credit markets. Current Actions: The Federal Reserve President) 1000 Peachtree Street, NE., Current Actions: The Federal Reserve proposes to add 20 domestically Atlanta, Georgia 30309: proposes to reduce the minimum asset chartered commercial banks with $2 to 1. FCG Investors, LLLP, and its general size for panel institutions from $3 $10 billion in total assets to the current partner, James W. Heavener, both of billion to $2 billion and add 20 reporting panel and reduce the Winter Park, Florida; to acquire domestically chartered commercial minimum asset size for panel additional voting shares, and retain banks with $2 to $10 billion in total institutions from $3 billion to $2 billion. control of Florida Capital Group, Inc., assets to the current reporting panel. The Federal Reserve believes that the and thereby indirectly acquire The Federal Reserve believes that the additions to the panel would provide a additional voting shares, and retain additions to the panel would provide more comprehensive picture of control of Florida Capital Bank, both in deeper coverage of commercial real differences in funding conditions at the Jacksonville, Florida. estate loans and small business lending, largest banks and regional banks, and deeper coverage of banks that lend in Board of Governors of the Federal Reserve as well as a more comprehensive picture System, May 11, 2012. of differences in lending conditions at commercial real estate and small Robert deV. Frierson, the largest banks and regional banks. business markets. The reporting panel On February 6, 2012, the Federal selection criteria for the FR 2023 are Deputy Secretary of the Board. Reserve published a notice in the consistent with those criteria from the [FR Doc. 2012–11897 Filed 5–16–12; 8:45 am] Federal Register (77 FR 5802) FR 2018. The proposed FR 2023 panel BILLING CODE 6210–01–P requesting public comment for 60 days revisions are necessary in order to on the proposal to extend, with revision, maintain consistency with the proposed the Senior Loan Officer Opinion Survey panel revision in the FR 2018. FEDERAL RESERVE SYSTEM on Bank Lending Practices. The On February 6, 2012, the Federal Formations of, Acquisitions by, and comment period for this notice expired Reserve published a notice in the Mergers of Bank Holding Companies on April 6, 2012. The Federal Reserve Federal Register (77 FR 5802) did not receive any comments. The requesting public comment for 60 days The companies listed in this notice revisions will be implemented as on the proposal to extend, with revision, have applied to the Board for approval, proposed. the Senior Financial Officer Survey. The pursuant to the Bank Holding Company 2. Report title: Senior Financial comment period for this notice expired Act of 1956 (12 U.S.C. 1841 et seq.) Officer Survey. on April 6, 2012. The Federal Reserve (BHC Act), Regulation Y (12 CFR part Agency form number: FR 2023. did not receive any comments. The 225), and all other applicable statutes OMB control number: 7100–0223. revisions will be implemented as and regulations to become a bank Frequency: Up to four times a year. proposed. holding company and/or to acquire the Reporters: Domestically chartered Board of Governors of the Federal Reserve assets or the ownership of, control of, or large commercial banks. System. the power to vote shares of a bank or Estimated annual reporting hours: Dated: May 14, 2012. 960 hours. bank holding company and all of the Estimated average hours per response: Robert deV. Frierson, banks and nonbanking companies 3 hours. Deputy Secretary of the Board. owned by the bank holding company, Number of respondents: 80. [FR Doc. 2012–11940 Filed 5–16–12; 8:45 am] including the companies listed below. General description of report: This BILLING CODE 6210–01–P The applications listed below, as well information collection is authorized by as other related filings required by the Sections 2A, 11 and 12A of the Federal Board, are available for immediate Reserve Act (12 U.S.C. 225a, 248(a), and FEDERAL RESERVE SYSTEM inspection at the Federal Reserve Bank 263) and is voluntary. Individual indicated. The applications will also be Change in Bank Control Notices; respondent data are regarded as available for inspection at the offices of Acquisitions of Shares of a Bank or confidential under the authority of the Board of Governors. Interested Bank Holding Company exemption 4 of the Freedom of persons may express their views in Information Act (5 U.S.C. 552(b)(4)). The notificants listed below have writing on the standards enumerated in Abstract: The Federal Reserve uses applied under the Change in Bank the BHC Act (12 U.S.C. 1842(c)). If the this voluntary survey to collect Control Act (12 U.S.C. 1817(j)) and proposal also involves the acquisition of qualitative and limited quantitative § 225.41 of the Board’s Regulation Y (12 a nonbanking company, the review also information about liability management, CFR 225.41) to acquire shares of a bank includes whether the acquisition of the the provision of financial services, and or bank holding company. The factors nonbanking company complies with the the functioning of key financial markets. that are considered in acting on the standards in section 4 of the BHC Act Responses are obtained from a senior notices are set forth in paragraph 7 of (12 U.S.C. 1843). Unless otherwise officer at each participating institution the Act (12 U.S.C. 1817(j)(7)). noted, nonbanking activities will be usually through an electronic The notices are available for conducted throughout the United States. submission. The survey is conducted immediate inspection at the Federal Unless otherwise noted, comments when major informational needs arise Reserve Bank indicated. The notices regarding each of these applications and cannot be met from existing data also will be available for inspection at must be received at the Reserve Bank sources. The survey does not have a the offices of the Board of Governors. indicated or the offices of the Board of fixed set of questions; each survey Interested persons may express their Governors not later than June 11, 2012. consists of a limited number of views in writing to the Reserve Bank A. Federal Reserve Bank of questions directed at topics of timely indicated for that notice or to the offices Philadelphia (William Lang, Senior Vice interest. The survey helps pinpoint of the Board of Governors. Comments President) 100 North 6th Street,

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Philadelphia, Pennsylvania 19105– Board of Governors of the Federal Reserve PLACE: 10th Floor Board Room, 77 K 1521: System, May 11, 2012. Street NE., Washington, DC 20002. 1. ESSA Bancorp, Inc., Stroudsburg, Robert deV. Frierson, STATUS: Parts will be open to the public Pennsylvania; to become a bank holding Deputy Secretary of the Board. and parts will be closed to the public. company by acquiring 100 percent of [FR Doc. 2012–11896 Filed 5–16–12; 8:45 am] Matters To Be Considered the voting shares of First Starr Bancorp BILLING CODE 6210–01–P and First Star Bank, both in Bethlehem, Parts Open to the Public Pennsylvania. FEDERAL RESERVE SYSTEM 1. Approval of the Minutes of the April Board of Governors of the Federal Reserve 30, 2012 Board Member Meeting System, May 14, 2012. 2. Thrift Savings Plan Activity Report by Robert deV. Frierson, Notice of Proposals To Engage in or To Acquire Companies Engaged in the Executive Director Deputy Secretary of the Board. Permissible Nonbanking Activities a. Monthly Participant Activity Report [FR Doc. 2012–11963 Filed 5–16–12; 8:45 am] b. Monthly Investment Performance BILLING CODE 6210–01–P The companies listed in this notice Report have given notice under section 4 of the c. Legislative Report Bank Holding Company Act (12 U.S.C. 3. Roth Launch Update FEDERAL RESERVE SYSTEM 1843) (BHC Act) and Regulation Y, (12 CFR part 225) to engage de novo, or Parts Closed to the Public Formations of, Acquisitions by, and to acquire or control voting securities or 4. Security Mergers of Bank Holding Companies assets of a company, including the 5. Personnel The companies listed in this notice companies listed below, that engages CONTACT PERSON FOR MORE INFORMATION: have applied to the Board for approval, either directly or through a subsidiary or Kimberly Weaver, Director, Office of pursuant to the Bank Holding Company other company, in a nonbanking activity External Affairs, (202) 942–1640. Act of 1956 (12 U.S.C. 1841 et seq.) that is listed in § 225.28 of Regulation Y Dated: May 14, 2012. (12 CFR 225.28) or that the Board has (BHC Act), Regulation Y (12 CFR part James B. Petrick, 225), and all other applicable statutes determined by Order to be closely related to banking and permissible for Secretary, Federal Retirement Thrift and regulations to become a bank Investment Board. holding company and/or to acquire the bank holding companies. Unless [FR Doc. 2012–12022 Filed 5–15–12; 11:15 am] assets or the ownership of, control of, or otherwise noted, these activities will be the power to vote shares of a bank or conducted throughout the United States. BILLING CODE 6760–01–P bank holding company and all of the Each notice is available for inspection banks and nonbanking companies at the Federal Reserve Bank indicated. owned by the bank holding company, The notice also will be available for DEPARTMENT OF HEALTH AND including the companies listed below. inspection at the offices of the Board of HUMAN SERVICES The applications listed below, as well Governors. Interested persons may [Document Identifier: OS–0937–0198; 30- as other related filings required by the express their views in writing on the day Notice] Board, are available for immediate question whether the proposal complies inspection at the Federal Reserve Bank with the standards of section 4 of the Agency Information Collection indicated. The application also will be BHC Act. Request; 30-Day Public Comment available for inspection at the offices of Unless otherwise noted, comments Request regarding the applications must be the Board of Governors. Interested AGENCY: Office of the Secretary, HHS. persons may express their views in received at the Reserve Bank indicated writing on the standards enumerated in or the offices of the Board of Governors In compliance with the requirement the BHC Act (12 U.S.C. 1842(c)). If the not later than June 1, 2012. of section 3506(c)(2)(A) of the proposal also involves the acquisition of A. Federal Reserve Bank of St. Louis Paperwork Reduction Act of 1995, the a nonbanking company, the review also (Glenda Wilson, Community Affairs Office of the Secretary (OS), Department includes whether the acquisition of the Officer) P.O. Box 442, St. Louis, of Health and Human Services, is nonbanking company complies with the Missouri 63166–2034: publishing the following summary of a 1. Farmers Bancshares, Inc., standards in section 4 of the BHC Act proposed collection for public Hardinsburg, Kentucky; to engage (12 U.S.C. 1843). Unless otherwise comment. Interested persons are invited directly in lending activities through the noted, nonbanking activities will be to send comments regarding this burden purchase of loans, pursuant to section conducted throughout the United States. estimate or any other aspect of this Unless otherwise noted, comments 225.28(b)(1) of Regulation Y. collection of information, including any regarding each of these applications Board of Governors of the Federal Reserve of the following subjects: (1) The must be received at the Reserve Bank System, May 14, 2012. necessity and utility of the proposed indicated or the offices of the Board of Robert deV. Frierson, information collection for the proper Governors not later than June 1, 2012. Deputy Secretary of the Board. performance of the agency’s functions; A. Federal Reserve Bank of San [FR Doc. 2012–11964 Filed 5–16–12; 8:45 am] (2) the accuracy of the estimated Francisco (Kenneth Binning, Vice BILLING CODE 6210–01–P burden; (3) ways to enhance the quality, President, Applications and utility, and clarity of the information to Enforcement), 101 Market Street, San be collected; and (4) the use of Francisco, California 94105–1579: FEDERAL RETIREMENT THRIFT automated collection techniques or 1. First Foundation Inc. to engage in INVESTMENT BOARD other forms of information technology to financial and investment advisory minimize the information collection activities through its wholly owned Sunshine Act Meeting burden. subsidiary, First Foundation Advisors, To obtain copies of the supporting both of Irvine, California, pursuant to TIME AND DATE: 9:00 a.m. (Eastern Time), statement and any related forms for the section 225.28(b)(6)(i) of Regulation Y. May 21, 2012. proposed paperwork collections

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referenced above, email your request, (42 CFR part 93)—OMB No 0937–0198– misconduct that comply with the Public including your address, phone number, Extension—Office of Research Integrity Health Service (PHS) Policies on OMB number, and OS document Abstract: This is a request for an Research Misconduct (42 CFR part 93). identifier, to extension of the currently approved Research misconduct is defined as [email protected], or call collection. The purpose of the Annual receipt of an allegation of research the Reports Clearance Office on (202) Report on Possible Research Misconduct misconduct and/or the conduct of an 690–5683. Send written comments and (Annual Report) form is to provide data inquiry and/or investigation into such recommendations for the proposed on the amount of research misconduct allegations. These data enable the ORI to activity occurring in institutions information collections within 30 days monitor institutional compliance with conducting PHS supported research. In of this notice directly to the OS OMB the PHS regulation. Lastly, the form will addition this provides an annual Desk Officer; faxed to OMB at 202–395– assurance that the institution has be used to respond to congressional 5806. established and will follow requests for information to prevent Proposed Project: Public Health administrative policies and procedures misuse of Federal funds and to protect Service Polices on Research Misconduct for responding to allegations of research the public interest.

ESTIMATED ANNUALIZED BURDEN TABLE

Number of Average Forms Type of Number of responses per burden hours Total burden (if necessary) respondent respondents respondent per response hours

PHS–6349 ...... Awardee Institutions ...... 6,096 1 10/60 1,016

Keith A. Tucker, amended at 76 FR 6795, dated February B. Remove ‘‘and’’ before item (6) in Office of the Secretary, Paperwork Reduction 8, 2011, and as last amended at 76 FR the second sentence and add the Act Reports Clearance Officer. 65196, dated October 20, 2011, is following new language to the end of [FR Doc. 2012–11921 Filed 5–16–12; 8:45 am] amended as follows: the sentence, ‘‘; and (7) developing the BILLING CODE 4150–30–P I. Under Section AR.10 Organization, mechanisms for establishing and insert ‘‘Office of the Chief Medical implementing standards necessary for Officer (ARG)’’ as item C as follows and nationwide health information DEPARTMENT OF HEALTH AND renumber items C through G exchange.’’ HUMAN SERVICES accordingly. II. Under Section AR. 10 VII. Under Section AR.20 Functions, Office of the Secretary Organization, delete ‘‘E. Office of the Paragraph F, ‘‘Office of the Deputy Chief Scientist (ARC)’’ and replace it National Coordinator for Programs & Statement of Organization, Functions, with ‘‘E. Office of Science and Policy (ARD)’’: and Delegations of Authority; Office of Technology (ARC).’’ A. Under the second sentence, remove The National Coordinator for Health III. Under Section AR.10 Information Technology ’’(3) developing the mechanisms for Organization, add a new line, ‘‘I. Office establishing and implementing ACTION: Notice. of Communications (ARH).’’ standards necessary for nationwide IV. Under Section AR.20 Functions, health information exchange;’’ and SUMMARY: The Office of the National insert the following new Paragraph C renumber items (4) through (6) Coordinator for Health Information and renumber Paragraphs C through G accordingly. Technology has reorganized its office in accordingly: B. Remove the ‘‘and’’ before ‘‘(5)’’ and order to more effectively meet the C. Office of the Chief Medical Officer mission outlined by The Health (ARG): The Office of the Chief Medical add the following new language to the Information Technology for Economic Officer works with and reports directly end of the second sentence: ‘‘; (6) and Clinical Health (HITECH) Act, part to the National Coordinator and will be overseeing consumer use of electronic of the American Recovery and responsible for working with private personal health information; and (7) Reinvestment Act of 2009 (ARRA). The sector medical organizations to achieve leading activities for certification of reorganization includes one change and widespread use of health information health information technology.’’ five functional realignments. technology by physicians. VIII. Under Section AR.20 Functions, FOR FURTHER INFORMATION CONTACT: Sam V. Under Section AR.20 Functions, Paragraph G, ‘‘Office of the Deputy Shellenberger, Office of the National Paragraph B, ‘‘Office of the Principal National Coordinator for Operations Coordinator, Office of the Secretary, 200 Deputy (ARA1),’’ at the end of the (ARE),’’ third sentence, remove ‘‘(5) Independence Ave. SW., Washington, second sentence, remove ‘‘and, Office of stakeholder communications;’’ and DC 20201, 202–690–7151. the Chief Scientist’’ and add the renumber item (6) accordingly. Part A, Office of the Secretary, following new language to the end of IX. Under Section AR.20 Functions, Statement of Organization, Functions the sentence, ‘‘Office of Science and insert new Paragraph I, as follows: and Delegations of Authority for the Technology, and Office of Department of Health and Human Communications.’’ I. Office of Communications (ARH): Services, Chapter AR, Office of the VI. Under Section AR.20 Functions, The Office of Communications is National Coordinator for Health Paragraph E, ‘‘Office of the Chief headed by a Director. The Office is Information Technology (ONC), as Scientist (ARC)’’: responsible for: (1) Setting the strategic amended at 74 FR 62785–62786, dated A. Replace all instances of ‘‘Office of direction for ONC communications December 1, 2009, as corrected at 75 FR the Chief Scientist’’ with ‘‘Office of efforts; (2) guiding the development of 49494, dated August 13, 2010, as Science and Technology.’’ a comprehensive stakeholder

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communications and constituency Background and Brief Description Internet) recruitment techniques. The relations plan; and, (3) ensuring that all In 2005, the Centers for Disease intervention will be evaluated using communications activities are Control and Prevention (CDC) reported baseline, 3-month and 6-month follow developed and implemented consistent that 80,187 African Americans were up assessments. This project will also with and in support of this plan. The diagnosed with HIV/AIDS, which conduct exit surveys to identify men Office’s activities promote ONC’s represents 51% of persons diagnosed. who were more favorable—men who broader mission of the nationwide African-American men with HIV/AIDS agreed with positive comments about implementation of interoperable health represented 44% of all cases among the intervention and those who were information technology in both the males (Centers for Disease Control and less favorable—men who disagreed with public and private health care sectors. Prevention [CDC], 2005). These statistics positive comments about the Such activities include identifying ways have been consistently disproportional intervention. Exit interviews will be to increase awareness of the value of since the late 1990s, with African conducted with 15 favorable and 15 less electronic health records (EHRs) to Americans bearing the greatest burden favorable men identified by the Exit improve health care and to create of new HIV cases in most regions of the Survey to help understand participants’ awareness of the HITECH Act United States. The Centers for Disease experiences with the CTCA intervention provisions among all stakeholders. Control and Prevention estimates that at and their thoughts about the content of X. Delegation of Authority. Pending the end of 2006, Blacks were the intervention and ways in which it further delegation, directives or orders disproportionately affected by HIV. The could be improved. Using the by the Secretary or by the National 2006 HIV infection rate in Blacks was participant responses to the exit survey, Coordinator for Health Information nearly twice the rate of Whites (92 out we will categorize participants into two Technology, all delegations and of every 100,000 Blacks compared to 48 categories: Favorable (those men redelegations of authority made to per 100,000 Whites and 31 per 100,000 reporting a favorable reaction to the officials and employees of affected Hispanics). Among males, Black males intervention) and unfavorable (those organizational components will accounted for the largest number of men reporting an unfavorable reaction continue in them or their successors diagnosed HIV infections and have the to the intervention). Once we have 50 pending further redelegations, provided highest HIV infection rate of any race/ participants in each category, we will they are consistent with this ethnicity group (144 per 100,000, randomly select 15 participants from reorganization. compared to 94 per 100,000 for White each group and invite them to Dated: May 7, 2012. males and 50 per 100,000 for Hispanic participate in the exit interview. We E.J. Holland, Jr., males anticipate that we will need to repeat While many HIV prevention and Assistant Secretary for Administration. these procedures and extend an intervention studies include samples of [FR Doc. 2012–11910 Filed 5–16–12; 8:45 am] invitation to at least 65 participants in African-American men and African- order to reach and successfully BILLING CODE 4150–24–P American Men who have Sex with Men interview 15 participants in each group. (AAMSM), beyond demonstrating disparities in seroprevalence between CDC is requesting approval for a DEPARTMENT OF HEALTH AND and among racial groups, few have been 3-year clearance for data collection. The HUMAN SERVICES specifically designed and evaluated for data collection system involves a pre efficacy among African American men. and full screening, brief locator Centers for Disease Control and information, record locator information, Prevention Because few HIV prevention interventions targeting AAMSM have baseline assessment, 3-month follow-up [30Day–12–12EL] been developed and rigorously assessment, 6-month follow-up evaluated, while their HIV infection assessment, participant evaluation Agency Forms Undergoing Paperwork rates remain disproportionately high forms, exit survey, and exit interviews. Reduction Act Review and continue to rise, identifying An estimated 1000 men will be pre- screened and 515 will be full-screened The Centers for Disease Control and effective interventions for AAMSM is a for eligibility in order to enroll 438 men. Prevention (CDC) publishes a list of public health imperative. The baseline and follow up information collection requests under The purpose of this project is to test questionnaires will be administered review by the Office of Management and the efficacy of an HIV transmission electronically using audio computer Budget (OMB) in compliance with the prevention intervention for reducing assisted self-interview (ACASI). The Paperwork Reduction Act (44 U.S.C. sexual risk among African American ACASI interview includes questions chapter 35). To request a copy of these men who have sex with men in Chicago, about participants’ socio-demographic requests, call (404) 639–7570 or send an Illinois. The intervention is a 3-day information, health and healthcare, email to [email protected]. Send written weekend retreat, group-level CTCA sexual activity, substance use, and other comments to CDC Desk Officer, Office of intervention that combines cultural psychosocial issues. The duration of Management and Budget, Washington, affirmation with critical thinking and each baseline, 3-month, and 6-month DC 20503 or by fax to (202) 395–5806. empowerment, to increase reasoning assessments are estimated to be 60 Written comments should be received skill, problem solving capacity, self- minutes; the exit survey 10 minutes; the within 30 days of this notice. protective behavior change, and well- being which facilitates the reduction of exit interview 30 minutes; pre-screening Proposed Project risky sexual behaviors. A convenience form 5 minutes; full-screening form 10 Critical Thinking and Cultural sample of 438 AAMSM will be recruited minutes; brief locator information form Affirmation (CTCA): Evaluation of a to participate in the study. We 5 minutes; record locator information Locally Developed HIV Prevention anticipate recruiting potential form 10 minutes; each participant Intervention—New—National Center for participants for the CTCA RCT through evaluation survey 5 minutes. HIV/AIDS, Viral Hepatitis, STD, TB a variety of community venues, using There is no cost to participants other Prevention (NCHHSTP), Centers for both active (i.e., venue outreach) and than their time. The total estimated Disease Control and Prevention (CDC). passive (i.e., referral, flyers/handcards, annual burden hours are 527.

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

Prospective Study Participant ...... Pre-Screening Form ...... 333 1 5/60 Prospective Study Participant ...... Full-Screening Form ...... 172 1 10/60 Prospective Study Participant ...... Brief Locator Form ...... 172 1 5/60 Enrolled Study Participant ...... Record Locator Form ...... 146 1 10/60 Enrolled Study Participant ...... Baseline Assessment ...... 146 1 1 Enrolled Study Participant ...... 3-month Follow-up Assess- 132 1 1 ment. Enrolled Study Participant ...... 6-month Follow-up Assess- 117 1 1 ment. Enrolled Study Participant ...... Participant Evaluation Forms 146 6 5/60 Enrolled Study Participant ...... Exit Survey ...... 117 1 10/60 Enrolled Study Participant ...... Exit Interview ...... 10 1 30/60

Kimberly S. Lane, a.m. to 5:30 p.m., EST and Thursday, DEPARTMENT OF HEALTH AND Deputy Director, Office of Science Integrity, June 21, 2012 from 8:30 a.m. to 1:00 HUMAN SERVICES Office of the Associate Director for Science, p.m. EST. Office of the Director, Centers for Disease Centers for Disease Control and Control and Prevention. Logistics: The Task Force Meeting Prevention [FR Doc. 2012–11878 Filed 5–16–12; 8:45 am] will be held at the Emory Conference BILLING CODE 4163–18–P Center’s at 1615 Clifton Road Atlanta, Disease, Disability, and Injury GA 30329. Information regarding Prevention and Control; Special logistics will be available on the Interest Projects (SIPs): Initial Review DEPARTMENT OF HEALTH AND Community Guide Web site The meeting announced below HUMAN SERVICES (www.thecommunityguide.org), concerns Examination of Environmental Wednesday, May 23, 2012. Centers for Disease Control and Characteristics that Enable and/or Prevention FOR FURTHER INFORMATION CONTACT: Promote Frequent Indoor Tanning Allyson Brown, The Community Guide among Young Adults to Inform Future Meeting of the Community Preventive Branch, Epidemiology and Analysis Public Health Policy Efforts to Prevent Services Task Force (CPSTF) Program Office, Office of Surveillance, Skin Cancer, SIP12–054, Pilot Study to Epidemiology, and Laboratory Services, Evaluate Strategies for Reducing AGENCY: Centers for Disease Control and Centers for Disease Control and Medical Radiation Exposure in Prevention (CDC), Department of Health Children, SIP12–055, and Innovative and Human Services (HHS). Prevention, 1600 Clifton Road, MS–E– 69, Atlanta, Georgia 30333, phone: (404) Message Framing to Increase Support ACTION: Notice of meeting. 498–0937), email: [email protected]. for Evidence-based Tobacco Control, SUMMARY: The Centers for Disease SIP12–060, Panel A, initial review. Purpose: The purpose of the meeting In accordance with Section 10(a)(2) of Control and Prevention (CDC) is for the Task Force to consider the the Federal Advisory Committee Act announces the next meeting of the findings of systematic reviews and issue (Pub. L. 92–463), the Centers for Disease Community Preventive Services Task recommendations and findings to help Control and Prevention (CDC) Force (CPSTF). The Task Force—an inform decision making about policy, announces the aforementioned meeting: independent, nonfederal body of practice, and research in a wide range nationally known leaders in public Time and Date of U.S. settings. health practice, policy, and research, 11:00 a.m.–5:30 p.m., June 20, 2012 Matters To Be Discussed: Updates on who are appointed by the CDC (Closed). Director—was convened in 1996 by the Cancer, Motor vehicle-related injuries, Place: Teleconference. Department of Health and Human Tobacco, Health Equity, and Alcohol. Status: The meeting will be closed to Services (HHS) to assess the Meeting Accessibility: This meeting is the public in accordance with effectiveness of community, open to the public, limited only by provisions set forth in Section environmental, population, and space availability. 552b(c)(4) and (6), Title 5 U.S.C., and healthcare system interventions in the Determination of the Director, Dated: May 3, 2012. public health and health promotion. Management Analysis and Services During this meeting, the Task Force will Tanja Popovic, Office, CDC, pursuant to Public Law 92– consider the findings of systematic Deputy Associate Director for Science, 463. reviews and issue recommendations and Centers for Disease Control and Prevention. Matters To Be Discussed: The meeting findings to help inform decision making [FR Doc. 2012–11938 Filed 5–16–12; 8:45 am] will include the initial review, about policy, practice, and research in a BILLING CODE 4163–18–P discussion, and evaluation of wide range of U.S. settings. The Task ‘‘Examination of Environmental Force’s recommendations, along with Characteristics that Enable and/or the systematic reviews of the scientific Promote Frequent Indoor Tanning evidence on which they are based, are among Young Adults to Inform Future compiled in the Guide to Community Public Health Policy Efforts to Prevent Preventive Services (Community Guide). Skin Cancer, SIP12–054, Pilot Study to DATES: The meeting will be held on Evaluate Strategies for Reducing Wednesday, June 20, 2012 from 8:30 Medical Radiation Exposure in

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Children, SIP12–055, and Innovative DATES: Submit either electronic or when appropriate, and other forms of Message Framing to Increase Support written comments on the collection of information technology. for Evidence-based Tobacco Control, information by July 16, 2012. Irradiation in the Production, SIP12–060, Panel A, initial review.’’ ADDRESSES: Submit electronic Processing, and Handling of Food—21 Contact Person for More Information: comments on the collection of CFR Part 179 (OMB Control Number M. Chris Langub, Ph.D., Scientific information to http:// 0910–0186)—Extension Review Officer, CDC, 4770 Buford www.regulations.gov. Submit written Highway NE., Mailstop F–46, Atlanta, comments on the collection of Under sections 201(s) and 409 of the Georgia 30341, Telephone: (770) 488– information to the Division of Dockets Federal Food, Drug, and Cosmetic Act 3585, [email protected]. Management (HFA–305), Food and Drug (the FD&C Act) (21 U.S.C. 321(s) and The Director, Management Analysis Administration, 5630 Fishers Lane, rm. 348), food irradiation is subject to and Services Office, has been delegated 1061, Rockville, MD 20852. All regulation under the food additive the authority to sign Federal Register comments should be identified with the premarket approval provisions of the notices pertaining to announcements of docket number found in brackets in the FD&C Act. The regulations providing for meetings and other committee heading of this document. uses of irradiation in the production, management activities, for both the FOR FURTHER INFORMATION CONTACT: processing, and handling of food are Centers for Disease Control and Domini Bean, Office of Information found in part 179 (21 CFR part 179). To Prevention and the Agency for Toxic Management, Food and Drug ensure safe use of a radiation source, Substances and Disease Registry. Administration, 1350 Piccard Dr., PI50– § 179.21(b)(1) requires that the label of 400T, Rockville, MD 20850, 301–796– sources bear appropriate and accurate Dated: May 10, 2012. 5733, [email protected]. information identifying the source of Elaine L. Baker, SUPPLEMENTARY INFORMATION: Under the radiation and the maximum (or Director, Management Analysis and Services PRA (44 U.S.C. 3501–3520), Federal minimum and maximum) energy of Office, Centers for Disease Control and Agencies must obtain approval from the radiation emitted by X-ray tube sources. Prevention. Office of Management and Budget Section 179.21(b)(2) requires that the [FR Doc. 2012–11952 Filed 5–16–12; 8:45 am] (OMB) for each collection of label or accompanying labeling bear BILLING CODE 4163–18–P information they conduct or sponsor. adequate directions for installation and ‘‘Collection of information’’ is defined use and a statement supplied by FDA in 44 U.S.C. 3502(3) and 5 CFR that indicates maximum dose of DEPARTMENT OF HEALTH AND 1320.3(c) and includes Agency requests radiation allowed. Section 179.26(c) HUMAN SERVICES or requirements that members of the requires that the label or accompanying Food and Drug Administration public submit reports, keep records, or labeling bear a logo and a radiation provide information to a third party. disclosure statement. Section 179.25(e) Section 3506(c)(2)(A) of the PRA (44 requires that food processors who treat [Docket No. FDA–2012–N–0473] U.S.C. 3506(c)(2)(A)) requires Federal food with radiation make and retain, for Agencies to provide a 60-day notice in Agency Information Collection 1 year past the expected shelf life of the the Federal Register concerning each Activities; Proposed Collection; products up to a maximum of 3 years, proposed collection of information, Comment Request; Irradiation in the specified records relating to the including each proposed extension of an Production, Processing, and Handling irradiation process (e.g., the food existing collection of information, of Food treated, lot identification, scheduled before submitting the collection to OMB process, etc.). The records required by for approval. To comply with this AGENCY: Food and Drug Administration, § 179.25(e) are used by FDA inspectors HHS. requirement, FDA is publishing notice to assess compliance with the regulation of the proposed collection of that establishes limits within which ACTION: Notice. information set forth in this document. radiation may be safely used to treat With respect to the following food. The Agency cannot ensure safe SUMMARY: The Food and Drug collection of information, FDA invites use without a method to assess Administration (FDA) is announcing an comments on these topics: (1) Whether compliance with the dose limits, and opportunity for public comment on the the proposed collection of information there are no practicable methods for proposed collection of certain is necessary for the proper performance analyzing most foods to determine information by the Agency. Under the of FDA’s functions, including whether whether they have been treated with Paperwork Reduction Act of 1995 (the the information will have practical ionizing radiation and are within the PRA), Federal Agencies are required to utility; (2) the accuracy of FDA’s limitations set forth in part 179. Records publish notice in the Federal Register estimate of the burden of the proposed inspection is the only way to determine concerning each proposed collection of collection of information, including the whether firms are complying with the information, including each proposed validity of the methodology and regulations for treatment of foods with extension of an existing collection of assumptions used; (3) ways to enhance ionizing radiation. information, and to allow 60 days for the quality, utility, and clarity of the public comment in response to the information to be collected; and (4) Description of respondents: notice. This notice solicits comments on ways to minimize the burden of the Respondents are businesses engaged in the information collection provisions of collection of information on the irradiation of food. FDA’s requirements for food irradiation respondents, including through the use FDA estimates the burden of this processors. of automated collection techniques, collection of information as follows:

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TABLE 1—ESTIMATED ANNUAL RECORDKEEPING BURDEN 1

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

179.25(e), Large processors ...... 3 300 900 1 900 179.25(e), Small processors ...... 4 30 120 1 120

Total ...... 1,020 1 There are no capital costs or operating and maintenance costs associated with this collection of information.

FDA bases its estimate of burden for DEPARTMENT OF HEALTH AND Experimental Study on Comparing Data the recordkeeping provisions of HUMAN SERVICES Obtained From Landline Telephone § 179.25(e) on the Agency’s experience and Cell Phone Surveys—(OMB Control regulating the safe use of radiation as a Food and Drug Administration Number 0910–NEW) direct food additive. The number of [Docket No. FDA–2011–N–0858] I. Background firms who process food using irradiation is extremely limited. FDA estimates that Since the early 1980s, the Center for Agency Information Collection Food Safety and Applied Nutrition at there are three irradiation plants whose Activities; Submission for Office of business is devoted primarily (i.e., FDA has been commissioning several Management and Budget Review; waves of two national consumer approximately 100 percent) to Comment Request; Experimental surveys, the Food Safety Survey (FSS) irradiation of food and other agricultural Study on Comparing Data Obtained and the Health and Diet Survey (HDS), products. Four other firms also irradiate From Landline Telephone and Cell to gather data on consumer knowledge, small quantities of food. FDA estimates Phone Surveys perceptions, and behaviors regarding that this irradiation accounts for no AGENCY: Food and Drug Administration, food safety and nutrition. The purposes more than 10 percent of the business for HHS. of the surveys are threefold: (1) To each of these firms. Therefore, the generate nationally representative ACTION: Notice. average estimated burden is based on estimates of knowledge, perceptions, three facilities devoting 100 percent of SUMMARY: The Food and Drug and practices of interest at a given point × their business to food irradiation (3 Administration (FDA) is announcing in time; (2) to track trends of the 300 hours = 900 hours for recordkeeping that a proposed collection of estimates over time; and (3) to annually), and four facilities devoting information has been submitted to the understand the relationships among 10 percent of their business to food Office of Management and Budget knowledge, perceptions, and practices irradiation (4 × 30 hours = 120 hours for (OMB) for review and clearance under regarding food safety and nutrition, and recordkeeping annually). the Paperwork Reduction Act of 1995. how these relate to demographic No burden has been estimated for the DATES: Fax written comments on the characteristics. labeling requirements in §§ 179.21(b)(1), collection of information by June 18, Traditionally, all waves of the surveys 179.21(b)(2), and 179.26(c) because the 2012. have been administered via landline information to be disclosed is telephones and have used the random ADDRESSES: To ensure that comments on digit dialing (RDD) technique to recruit information that has been supplied by the information collection are received, national samples of adults (18 years old FDA. Under 5 CFR 1320.3(c)(2), the OMB recommends that written or above) from households with public disclosure of information comments be faxed to the Office of landline telephone numbers. A originally supplied by the Federal Information and Regulatory Affairs, noticeable phenomenon that has Government to the recipient for the OMB, Attn: FDA Desk Officer, FAX: appeared in our recent surveys is a purpose of disclosure to the public is 202–395–7285, or emailed to _ precipitous decline of younger not a collection of information. oira [email protected]. All respondents in completed interviews. Dated: May 11, 2012. comments should be identified with the For example, the proportion of OMB control number 0910–New and Leslie Kux, respondents in the 18 to 29 age group title ‘‘Experimental Study on Comparing for the FSS has dropped from 17 percent Assistant Commissioner for Policy. Data Obtained From Landline in 2001, to 11 percent in 2006, to only [FR Doc. 2012–11933 Filed 5–16–12; 8:45 am] Telephone and Cell Phone Surveys.’’ 4 percent in 2010; the corresponding BILLING CODE 4160–01–P Also include the FDA docket number proportion for the HDS has gone from found in brackets in the heading of this 14 percent in 2002, to 15 percent in document. 2004, to only 6 percent in 2008. FOR FURTHER INFORMATION CONTACT: One possible reason for the decline is Domini Bean, Office of Information the rapid adoption of cell phones in Management, Food and Drug recent years. During the second half of Administration, 1350 Piccard Dr., PI50– 2010, 28 percent of American adults 400T, Rockville, MD 20850, 301–796– lived in households with only wireless 5733, [email protected]. service (‘‘wireless-only households’’ or SUPPLEMENTARY INFORMATION: In ‘‘cell-phone only households’’), compliance with 44 U.S.C. 3507, FDA compared to 15 percent in the second has submitted the following proposed half of 2007 and 5 percent in the second collection of information to OMB for half of 2004 (Ref. 1). During the second review and clearance. half of 2010, 17 percent of adults lived

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in households that received all or samples and often possess samples of respondents drawn from an almost all calls on cell phones despite characteristics that differ from those of overlapping dual frame (Ref. 6), i.e., two having a landline phone (‘‘wireless- adults in landline households. Thus, a overlapping sampling frames: (1) A list- mostly households’’ or ‘‘cell-phone telephone survey that still relies assisted landline telephone frame and mostly households’’), an increase of 3 exclusively on landline phone calls to (2) a cell-phone frame. Using this percentage points from the first half of interview respondents may not produce approach, we will not screen out any 2008 (Ref. 1). Thus, the number of results that are reliable and valid (Refs. households or individuals because of adults reachable by landline phone calls 2 and 6), may not yield results that are their type(s) of telephone service has decreased in recent years. The rate comparable to results from past landline (landline or cell phone). The study of cell phone adoption, however, has surveys when this noncoverage problem plans to interview 2,000 respondents in been uneven among adults with was absent, or both. English, half of them (1,000) using a different demographic characteristics. In One common approach to addressing 10-minute HDS questionnaire and half 2010, adults living in wireless-only potential impacts of cell phone use on of them (1,000) using a 10-minute FSS households were more likely to be 18 to landline telephone survey results is to questionnaire. Each respondent will be 34 year olds, living in poorer supplement a landline telephone survey randomly assigned to one of the households, without a college or higher with a cell phone survey to achieve a questionnaires. The target distributions educational degree, or Hispanics or wider coverage of population in the within each of the HDS and FSS Latinos (Ref. 1). Meanwhile, adults who sample of respondents. Existing samples are: live in landline households differ from evidence on the usefulness of this • 700 respondents who are drawn those who live in wireless-only approach varies between national from the landline frame and complete households as well those in wireless- estimates and population subgroup the questionnaire on a landline mostly households (Ref. 2), and the estimates. Many studies conducted telephone; demographic characteristics of adults around the mid-2000s (for example, Ref. • 150 respondents who are drawn living in wireless-mostly households are 7), when the use of cell phones was not from the cell phone frame and complete much less diverse than that of adults as common as today, and a 2007 study the questionnaire on a cell phone, living in wireless-only households (Ref. 2) suggested that general regardless whether they are wireless- (Ref. 1). population estimates of certain social only or wireless-mostly; and The underrepresentation of wireless- and political attitudes, voting behavior, • 150 respondents who are drawn only or wireless-mostly adults, and media use and attitudes did not from the cell phone frame, complete the especially those in younger age groups, always vary when a landline survey was questionnaire on a cell phone, and do in landline surveys can affect national supplemented or was not supplemented not have a landline phone to receive estimates of the prevalence of certain with a cell-phone only survey, personal calls. consumer perceptions, knowledge or especially when the response to a The HDS questionnaire will focus on behaviors, and understanding of the landline survey was weighted to reflect knowledge of dietary fats, use of food relationships between certain survey population characteristics. On the other responses and demographic hand, this research also suggested that labels, awareness of diet-health characteristics. For example, previous among young adults and low-income relationships, and use and research found different prevalence adults, estimates of certain health- understanding of dietary supplements. rates of drinking and smoking between related behaviors, such as smoking and The FSS questionnaire will focus on respondents reached on a landline call binge drinking, differ between those perceptions of general food safety risks, versus respondents from wireless-only living in households with and without food handling practices, perceived households (Ref. 1). Wireless-mostly landlines (Ref. 8). In addition, young personal vulnerability to food safety adults were less likely than landline adults who had a landline phone were risks, consumption of risky foods, and adults to say their health is fair or poor less likely to report drinking alcohol or awareness of mercury and fish. All and were less likely to be a current to agree that marijuana smoking is questions have been asked in previous smoker than wireless-only adults (Ref. acceptable (Ref. 9). We are, however, not surveys. 2). Voigt et al. (Ref. 3) reported that cell aware of any research that has examined The Agency will use the study to phone users were less likely to have whether food safety or nutrition related assess the impacts of cell phone use on fathered or given birth to a child than perceptions, attitudes, and behaviors population estimates of nutrition and their landline telephone counterparts. differ when landline telephone surveys food safety related perceptions, The differences observed in these miss respondents who are not reachable attitudes, and behaviors. The studies are pertinent and potentially by landline telephone calls. assessment will help the Agency problematic for the HDS and FSS Therefore, we are concerned that the determine whether and how future because past surveys have shown that diminishing survey participation among administrations of the FSS and HDS age variations were associated with, consumers who are not easily reached should be adjusted to produce reliable, among other things, consumers’ by landline telephones may lead to valid, and historically comparable knowledge of dietary fats, and unreliable or biased estimates of critical results in response to the growing awareness and concern about pesticide information and the relationships prevalence of cell phone use. and antibiotic residues (Refs. 4 and 5). among knowledge, perceptions, and In the Federal Register of December 7, Thus, our recent surveys may have other food safety and nutrition-related 2011 (76 FR 76422), FDA published a become vulnerable to a noncoverage variables. These concerns warrant a 60-day notice requesting public problem due to the fact that many systematic examination of the impacts comment on the proposed collection of eligible respondents are not included in of cell phone use on the quality of the information. The Agency received two the survey samples because they do not FSS and HDS data. comments in response to the notice. own landline phones or because they The objective of this data collection is Both responses dealt with topics outside receive calls only or mostly on cell to provide data for an experimental the scope of the proposed collection of phones. Adults living in wireless-only study that compares demographic information described in the 60-day and wireless-mostly households are less distributions in and responses to notice and are therefore not addressed likely to appear in landline telephone selected FSS and HDS questions by here.

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FDA estimates the burden of this collection of information as follows:

TABLE 1—ESTIMATED ANNUAL REPORTING BURDEN 1

Number of Activity Number of responses per Total annual Average burden per Total hours respondents respondent responses response

Pretest ...... 10 1 10 0.167 (10 minutes) 2 Survey ...... 2,000 1 2,000 0.167 (10 minutes) 334

Total ...... 336 1 There are no capital costs or operating and maintenance costs associated with this collection of information.

II. References 9. Keeter, S., C. Kennedy, A. Clark, et al., Cross-Site Evaluation of the Minority The following references have been ‘‘What’s Missing From National Landline Substance Abuse/HIV Prevention placed on display in the Division of RDD Surveys? The Impact of the Program—(OMB No. 0930–0298)— Growing Cell-Only Population,’’ Public Dockets Management (see ADDRESSES) Revision and Reinstatement Opinion Quarterly, 71: 772–792, 2007. and may be seen by interested persons The Substance Abuse and Mental between 9 a.m. and 4 p.m., Monday Dated: May 11, 2012. Health Services Administration Center through Friday. (FDA has verified the Leslie Kux, for Substance Abuse Prevention (CSAP) Web site addresses, but FDA is not Assistant Commissioner for Policy. is requesting from the Office of responsible for any subsequent changes [FR Doc. 2012–11934 Filed 5–16–12; 8:45 am] Management and Budget (OMB) to the Web sites after this document approval for the revision of data BILLING CODE 4160–01–P publishes in the Federal Register.) collection activities for the cross-site 1. Blumberg, S.J. and J.V. Luke, ‘‘Wireless study of the Minority HIV/AIDS Substitution: Early Release of Estimates DEPARTMENT OF HEALTH AND Initiative (MAI), which includes both From the National Health Interview HUMAN SERVICES youth and adult questionnaires. This Survey, July-December 2010.’’ National revision includes the addition of four Center for Health Statistics, June 2011. Substance Abuse and Mental Health cohorts, changes to the data collection Available at: http://www.cdc.gov/nchs/ procedures based on intervention nhis.htm. Services Administration 2. Lee, S., J.M. Brick, E.R. Brown, and D. duration, and the addition of two Grant, ‘‘Growing Cell-Phone Population Agency Information Collection questions on binge drinking behavior. and Noncoverage Bias in Traditional Activities: Proposed Collection; The instruments were also modified to Random Digit Dialing Telephone Health Comment Request include six items for adults and three Surveys,’’ Health Services Research, 45: items for youth on military families and 1121–1139, 2010. In compliance with Section deployment that were recently approved 3. Voigt, L.F., S.M. Schwartz, D.R. Doody, et 3506(c)(2)(A) of the Paperwork by OMB under the CSAP National al., ‘‘Feasibility of Including Cellular Outcomes Measures (NOMs) (OMB # Telephone Numbers in Random Digit Reduction Act of 1995 concerning Dialing for Epidemiologic Case-Control opportunity for public comment on 0930–0230). The current approval for studies,’’ American Journal of proposed collections of information, the the full cross-site is under OMB No. Epidemiology, 173: 118–126, 2011. Substance Abuse and Mental Health 0930–0298, which expires on 4/30/12. 4. Yen, S.T., K.L. Jensen, and C.-T.J. Lin, Services Administration (SAMHSA) This cross-site study supports two of ‘‘Awareness and Perceived Risk of will publish periodic summaries of SAMHSA’s eight Strategic Initiatives: Pesticide and Antibiotic Residues in proposed projects. To request more Prevention of Substance Abuse and Food: Socioeconomic Variations Among Mental Illness and Data, Outcomes, and United States’ Consumers,’’ Food information on the proposed projects or Protection Trends, 26: 654–661, 2006. to obtain a copy of the information Quality. The primary objectives of the cross-site study are to: 5. Lin, C.-T.J. and S.T. Yen, ‘‘Knowledge of collection plans, call the SAMHSA • Dietary Facts Among U.S. Consumers,’’ Reports Clearance Officer on (240) 276– Determine the success of the MAI in Journal of the American Dietetic 1243. preventing, delaying, and/or reducing Association, 110: 613–618, 2010. the use of alcohol, tobacco, and other 6. American Association for Public Opinion Comments are invited on: (a) Whether drugs (ATOD) among the target Research (AAPOR), ‘‘New the proposed collections of information populations. Considerations for Survey Researchers are necessary for the proper • Measure the effectiveness of When Planning and Conducting RDD performance of the functions of the evidence-based programs and Telephone Surveys in the U.S. With agency, including whether the Respondents Reached via Cell Phone infrastructure development activities Numbers,’’ 2010. Available at: http:// information shall have practical utility; such as: outreach and training, www.aapor.org/ (b) the accuracy of the agency’s estimate mobilization of key stakeholders, Cell_Phone_Task_Force_Report.htm. of the burden of the proposed collection substance abuse and HIV/AIDS 7. Keeter, S., ‘‘The Impact of Cellular Phone of information; (c) ways to enhance the counseling and education, referrals to Noncoverage Bias on Polling in the 2004 quality, utility, and clarity of the appropriate medical treatment and/or Presidential Election,’’ Public Opinion information to be collected; and (d) other intervention strategies (i.e., Quarterly, 70: 88–98, 2006. ways to minimize the burden of the cultural enrichment activities, 8. Blumberg, S.J. and J.V. Luke, ‘‘Reevaluating the Need for Concern collection of information on educational and vocational resources, Regarding Noncoverage Bias in Landline respondents, including through the use and computer-based curricula). Surveys,’’ American Journal of Public of automated collection techniques or • Assess the process of adopting and Health, 99: 1806–1810, 2009. other forms of information technology. implementing the Strategic Prevention

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Framework (SPF) with the target have substantial flexibility in choosing participants. All grantees will use two populations. their individual evidence-based instruments, one for youth aged Grantees are community based programs, they are all required to base between 12 and 17 and one for adults organizations that are required to them on the five steps of the SPF to aged 18 and older. The common design address the SAMSHA Strategic build service capacity specific to SA for participants in interventions lasting Prevention Framework (SPF) and and HIV prevention services. 30 days or longer includes assessments participate in this cross-site evaluation. Conducting this cross-site evaluation at baseline, program exit, and three to The grantees are expected to provide will assist SAMHSA/CSAP in six months post-exit (follow-up). The leadership and coordination on the promoting and disseminating optimally common questionnaires will be planning and implementation of the effective prevention programs. administered to all 30-day intervention SPF that targets minority populations, Grantees must also conduct ongoing (program participants) youth and adults the minority reentry population, as well monitoring and evaluation of their at baseline (first data collection point), as other high risk groups residing in projects to assess program effectiveness program exit (second data collection communities of color with high including Federal reporting of the point), and follow-up (third data prevalence of SA and HIV/AIDS. Government Performance and Results collection point).For participants in The grantees are expected to provide Act (GPRA) Modernization Act of 2010, interventions lasting between 2 and 29 an effective prevention process, SAMHSA/CSAP National Outcome days questionnaires will be direction, and a common set of goals, Measures (NOMs), and HIV Counseling administered at baseline and exit. For expectations, and accountabilities to be and Testing. All of this information will single session interventions an exit only adapted and integrated at the be collected through self-report questionnaire will be administered. See community level. While the grantees questionnaires administered to program breakdown below:

Intervention duration Length Definition Sections of survey to be administered

Single Session Inter- 1 day or less ...... A direct service intervention that lasts one day or less. • Section One: Facts about You vention. Participants may receive multiple services during the • 3 to 5 questions from Section Two: session, but do not continue in a CSAP HIV grant fund- Attitudes & Knowledge. ed activity for more than one day. Multiple Session Less than 30 days The participant should receive at least two HIV Grant • Section One: Facts about You Brief Intervention. funded sessions or service encounters. The period of • Section Two: Attitudes & Knowl- time between the first session or encounter and the last edge. session or encounter should be two to 29 days. Multiple Session 30 days or more ... The participant should receive at least two HIV Grant • Section One: Facts about You Long Intervention. funded sessions or service encounters. The period of • Section Two: Attitudes & Knowledge time between the first session/encounter and the last • Section Three: Behavior & Relation- session/encounter should be 30 days or more. ships.

The CSAP National Outcome relate to HIV/AIDS and the adult implications for the substance abuse Measures (NOMs) on the instruments questionnaire contains 122 items, of and HIV/AIDS prevention fields, the have already been approved by OMB which 47 relate to HIV/AIDS. Two new allocation of grant funds, and other (OMB No. 0930–0230) will expire on questions have been added to both the evaluation activities conducted by 2/28/2013. These NOMs data are used to youth and adult questionnaires to multiple Federal, State, and local report on Government Performance and address SAMHSA’s need to collect government agencies. They will be used Results Act (GPRA) and findings across information on binge drinking behavior, to develop Federal policy in support of CSAP programs. For this program, these not covered under any prior OMB SAMHSA/CSAP program initiatives, cross-site instruments are augmented package. These questions are: inform the public of lessons learned and with additional scales (currently 1. Females only: During the past 30 findings, improve existing programs, approved under OMB No. 0930–0298 days, on how many days did you have and promote replication and and expiring on 4/30/2012) to measure 4 or more drinks on the same occasion? dissemination of effective prevention other important risk and protective 2. Males only: During the past 30 strategies. factors uniquely associated with HIV/ days, on how many days did you have Total Estimates of Annualized Hour AIDS among minority populations and 5 or more drinks on the same occasion? Burden minority re-entry populations in Procedures are employed to safeguard communities of color. The youth the privacy and confidentiality of The following table shows the (covering ages 12–17) questionnaire participants. The cross-site evaluation estimated annualized burden for data contains 128 questions, of which 28 results will have significant collection.

TABLE 1a—ESTIMATES OF ANNUALIZED HOUR BURDEN BY INTERVENTION LENGTH

Responses Intervention length Number of per Total Hours per Total hour respondents respondent responses response burden

30-Days or More Intervention: Base line...... 7,937 1 7,937 0.83 6,588 Exit ...... 4,887 1 4,887 0.83 4,056 Follow-up ...... 2,942 1 2,942 0.83 2442

Subtotal ...... 7,937 ...... 15,766 ...... 13,086 2 to 29 Day Intervention:

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TABLE 1a—ESTIMATES OF ANNUALIZED HOUR BURDEN BY INTERVENTION LENGTH—Continued

Responses Intervention length Number of per Total Hours per Total hour respondents respondent responses response burden

Base line ...... 1,416 1 1,416 0.5 708 Exit ...... 872 1 872 0.5 436

Subtotal ...... 1,416 ...... 2,288 ...... 1,144 Single Day Intervention: Exit ...... 2,458 1 2,458 0.25 614

Annualized Total...... 11,811 ...... 20,512 ...... 14,844

TABLE 1b—ESTIMATES OF ANNUALIZED HOUR BURDEN BY SURVEY TYPE

Number of Total Total hour Questionnaire respondents responses burden

Annualized total adult ...... 9,682 16,899 12,234 Annualized Total Youth ...... 2,128 3,612 2,610

Annualized Total ...... 11,811 20,512 14,844

Send comments to Summer King, ADDRESSES: Send written comments by pink (Obovaria retusa), fat pocketbook SAMHSA Reports Clearance Officer, U.S. mail to the Regional Director, Attn: (Potamilus capax), and rayed bean Room 8–1099, One Choke Cherry Road, Lisa Mandell, U.S. Fish and Wildlife (Villosa fabalis). Proposed activities Rockville, MD 20857 OR email a copy Service, Ecological Services, 5600 would occur throughout the State of to [email protected]. American Blvd. West, Suite 990, Illinois, including presence/absence Written comments must be received Bloomington, MN 55437–1458; or by surveys and mussel relocation to before 60 days after the date of the electronic mail to [email protected]. enhance recovery of the species. publication in the Federal Register. FOR FURTHER INFORMATION CONTACT: Lisa Proposed activities are for the purpose of recovery of the species in the wild. Summer King, Mandell, (612) 713–5343. SUPPLEMENTARY INFORMATION: Permit Application Number: Statistician. TE73587A. [FR Doc. 2012–11905 Filed 5–16–12; 8:45 am] Background Applicant: Missouri Department of BILLING CODE 4162–20–P We invite public comment on the Conservation, Jefferson City, MO. following permit applications for certain The applicant requests a permit to activities with endangered species take the Ozark hellbender DEPARTMENT OF THE INTERIOR authorized by section 10(a)(1)(A) of the (Cryptobranchus alleganiensis bishopi) Act (16 U.S.C. 1531 et seq.) and our in Missouri for the propagation, Fish and Wildlife Service regulations governing the taking of augmentation, and reintroduction of the endangered species in the Code of species. Proposed activities are for the [FWS–R3–ES–2012–N111; Federal Regulations (CFR) at 50 CFR 17. survival and recovery of the species in FXES11130300000F3–123–FF03E00000] Submit your written data, comments, or the wild. request for a copy of the complete Permit Application Number: Endangered and Threatened Wildlife application to the address shown in TE73128A. and Plants; Permit Applications ADDRESSES. Applicant: Malacological Consultants, LaCrosse, WI. AGENCY: Fish and Wildlife Service, Permit Applications The applicant requests a permit to Interior. Permit Application Number: take (capture and release; capture and ACTION: Notice of availability of permit TE73584A. relocate) Higgins’ eye pearlymussel, fat applications; request for comments. Applicant: Illinois Natural History pocketbook, winged mapleleaf, Survey, Champaign, IL. sheepnose, spectaclecase, scaleshell SUMMARY: We, the U.S. Fish and The applicant requests a permit to (Leptodea leptodon), and snuffbox Wildlife Service (USFWS), invite the take (capture and release; capture and mussels within the Upper Mississippi public to comment on the following relocate) the following endangered and Iowa Rivers, States of Minnesota, applications to conduct certain mussel species: clubshell (Pleurobema Wisconsin, Iowa, and Illinois. Proposed activities with endangered species. With clava), northern riffleshell (Epioblasma activities are for the enhancement of some exceptions, the Endangered rangiana), orangefoot pimpleback survival and recovery of the species in Species Act (Act) prohibits activities (Plethobasus cooperianus), pink mucket the wild. with endangered and threatened species (Lampsilis abrupta), sheepnose Permit Application Number: unless a Federal permit allows such (Plethobasus cyphyus), spectaclecase TE73598A. activity. The Act requires that we invite (Cumberlandia monodonta), winged Applicant: Fowler Ridge Wind Farm, public comment before issuing these mapleleaf (Quadrula fragosa), fanshell LLC, Houston, TX. permits. (Cyprogenia stegaria), snuffbox The applicant requests a permit to DATES: We must receive any written (Epioblasma triquetra), Higgins’ eye take (study, salvage, and monitor) the comments on or before June 18, 2012. pearlymussel (Lampsilis higginsii), ring Indiana bat (Myotis sodalis) at the

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Fowler Ridge Wind Farm, Benton DEPARTMENT OF THE INTERIOR FOR FURTHER INFORMATION CONTACT: County, IN. The applicant proposes to Peter Wikoff, Natural Resource Planner, monitor the nocturnal behavior of bats Fish and Wildlife Service U.S. Fish and Wildlife Service, at (907) in and around turbines utilizing an 786–3357, or at the address above. experimental design to determine [FWS–R7–R–2012–N084; FF07R06000 FXRS12650700000Z2] SUPPLEMENTARY INFORMATION: We have susceptibility of bats to turbine received an application for, and intend mortality at varying wind speeds and Kenai National Wildlife Refuge, to prepare an environmental impact operating protocols. The study is Soldotna, AK; Environmental Impact statement (EIS) for, a proposed right-of- proposed to further understand bat Statement for the Shadura Natural Gas way within the Refuge. The right-of-way interactions with turbines at multiple Development Project would be in compliance with Section spatial and temporal scales and to 1110(b) of ANILCA, regarding access to determine the best combination of AGENCY: Fish and Wildlife Service, inholdings, for the construction and methods for detecting and observing Interior. operation of facilities associated with interactions. Proposed activities are for ACTION: Notice of Intent. the exploration and production of the enhancement of survival of the natural gas from the subsurface estate species in the wild. SUMMARY: We, the U.S. Fish and within the Refuge. The Service owns the Permit Application Number: Wildlife Service (Service), have received surface estate, and Cook Inlet Region, TE74589A. an application for a proposed right-of- Inc. (CIRI) owns the subsurface estate of way within the Kenai National Wildlife coal, oil, and gas in the project area. The Applicant: Vesper Environmental, Refuge (Refuge) under the Alaska Project would be in the northwestern LLC, Hurley, NY. National Interest Lands Conservation portion of the Kenai Peninsula, The applicant requests a permit to Act (ANILCA). We received the approximately 4 miles southeast of the take (capture and release) Indiana bats application from Nordaq Energy, Inc. for end of the road in Captain Cook State in Ohio, New York, Pennsylvania, West the Shadura Natural Gas Development Recreation Area in T8N, R10W. The Virginia, Vermont, Maryland, and Project (Project), which would involve application is being made by NordAq Massachusetts. Proposed activities are construction and operation of facilities Energy, Inc., the holder of the lease from for the enhancement of survival of the associated with the exploration and CIRI for the area. species in the wild. production of natural gas from the This notice advises the public that we Permit Application Number: subsurface estate within the Refuge. We have started preliminary scoping and TE74592A. intend to gather information necessary intend to gather information necessary to develop an EIS. A third-party Applicant: R. Jeffrey Brown, Mason, to prepare an environmental impact contractor will prepare the EIS and OH. statement (EIS) under the National Environmental Policy Act (NEPA) and evaluate the various alternatives The applicant requests a permit to its implementation regulations for the associated with the Project pursuant to take (capture and release) Indiana bats, application. We are publishing this the National Environmental Policy Act gray bats, Virginia big-eared bats, and notice in compliance with NEPA (42 U.S.C. 4321 et seq.; NEPA) and its Ozark big-eared bats throughout the regulations (40 CFR 1501.7) to advise implementing regulations (40 CFR 1500 range of the species. Proposed activities other agencies and the public of our et seq.). The EIS will describe and are for the enhancement of survival of intentions and to obtain suggestions and evaluate a range of reasonable the species in the wild. information on the scope of issues to be alternatives and the anticipated impacts Public Comments addressed in the EIS. of each. We are publishing this notice in DATES: Meetings: We will locally compliance with the NEPA regulations We seek public review and comments announce any future meeting dates, (40 CFR 1501.7) to advise other agencies on these permit applications. Please times, and locations, at least 10 days and the public of our intentions and to refer to the permit number when you prior to each meeting. obtain suggestions and information on submit comments. Comments and Comments: Please provide any the scope of issues to be addressed in materials we receive are available for written comments, information, or the EIS. public inspection, by appointment, suggestions on the scope of issues to Public Input and Meetings during normal business hours at the address in the EIS by June 18, 2012. address shown in the ADDRESSES Special mailings, newspaper section. Before including your address, ADDRESSES: Additional information advertisements, and other media phone number, email address, or other concerning the Project can be found at: announcements will inform the public • http://kenai.fws.gov/current.htm of opportunities to provide written personal identifying information in your • comment, you should be aware that http://alaska.fws.gov/nwr/planning/ input throughout the planning process. your entire comment—including your nepa.htm Public meetings were held on March 20, Refuge information may be found at: 2012, in, Kenai, Alaska, and on March personal identifying information—may • be made publicly available at any time. http://www.fws.gov/refuges/ 22, 2012, in Anchorage. In local media, While you can ask us in your comment profiles/index.cfm?id=74525. we will announce additional public to withhold your personal identifying Send your comments or requests for meetings to be held in the cities of information from public review, we information by any of the following Kenai and Anchorage. Information methods to: pertaining to the right-of-way cannot guarantee that we will be able to • do so. Email: application for the project is available [email protected]; for viewing and downloading at http:// Dated: May 10, 2012. • Fax: Attn: Peter Wikoff, (907) 786– kenai.fws.gov/current.htm or http:// Robert Krska, 3976; alaska.fws.gov/nwr/planning/nepa.htm. Acting Assistant Regional Director, Ecological • U.S. Mail: Peter Wikoff, Natural Services, Midwest Region. Resource Planner, U.S. Fish and Refuge Information [FR Doc. 2012–11946 Filed 5–16–12; 8:45 am] Wildlife Service, 1011 East Tudor Rd., The Refuge covers approximately two BILLING CODE 4310–55–P MS–231, Anchorage, AK 99503. million acres on the Kenai Peninsula in

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south-central Alaska. It is readily (ii) To fulfill the international treaty DATES: The meeting will take place accessible by road from the city of obligations of the United States with Tuesday, June 5, 2012; 8:30 a.m. to Anchorage, which is home to 41.5 respect to fish and wildlife and their 5 p.m. and Wednesday, June 6, 2012; percent of Alaska’s population. The habitats; 8:30 a.m. to 3:30 p.m. (Eastern daylight Refuge consists of the western slopes of (iii) To ensure, to the maximum time). For deadlines and directions on the Kenai Mountains and forested extent practicable and in a manner registering to attend the meeting, lowlands bordering Cook Inlet. The consistent with the purposes set forth in submitting written material, and/or Kenai Mountains, with their glaciers, paragraph (i), water quality and giving an oral presentation, please see rise to more than 6,500 feet. Treeless necessary water quantity within the ‘‘Public Input’’ under SUPPLEMENTARY alpine and subalpine habitats are home Refuge; INFORMATION. to mountain goats, Dall sheep, caribou, (iv) To provide in a manner consistent ADDRESSES: The meeting will be held in wolverine, marmots, and ptarmigan. with subparagraphs (i) and (ii), the North Penthouse of the Department Boreal forests extend from sea level to opportunities for scientific research, of the Interior building at 1849 C Street 1,800 feet and are composed of spruce interpretation, environmental NW., Washington, DC 20240. and birch forests, which on the Refuge education, and land management are intermingled with hundreds of training; and FOR FURTHER INFORMATION CONTACT: lakes. Boreal forests are home to moose, (v) To provide, in a manner Douglas Hobbs, Council Coordinator, wolves, black and brown bears, lynx, compatible with these purposes, 4401 North Fairfax Drive, Mailstop snowshoe hares, and numerous species opportunities for fish and wildlife– 3103–AEA, Arlington, VA 22203; of Neotropical birds, such as olive-sided oriented recreation. telephone (703) 358–2336; fax (703) flycatchers, myrtle warblers, and ruby 358–2548; or email Public Availability of Comments _ crowned kinglets. At sea level, the doug [email protected]. Refuge encompasses the last remaining Before including your address, phone SUPPLEMENTARY INFORMATION: In pristine major saltwater estuary on the number, email address, or other accordance with the requirements of the Kenai Peninsula, the Chickaloon River personal identifying information in your Federal Advisory Committee Act, Flats. The Flats provide a major comment, you should be aware that 5 U.S.C. App., we announce that the migratory staging area and nesting your entire comment—including your Sport Fishing and Boating Partnership habitat for shorebirds and waterfowl personal identifying information—may Council will hold a meeting. throughout the spring, summer, and fall. be made publicly available at any time. The Flats are also used as a haul-out While you can ask us to withhold it Background area by harbor seals. Thousands of from public view, we cannot guarantee The Council was formed in January salmon migrate up the Chickaloon River we will be able to do so. 1993 to advise the Secretary of the system each year to spawn. Dated: May 11, 2012. Interior, through the Director of the While the Service owns the land Geoffrey L. Haskett, Service, on nationally significant surface within the Refuge, portions of Regional Director, U.S. Fish and Wildlife recreational fishing, boating, and the subsurface estate have been Service, Anchorage, Alaska. aquatic resource conservation issues. transferred to CIRI. CIRI was established [FR Doc. 2012–11942 Filed 5–16–12; 8:45 am] The Council represents the interests of by the Alaska Native Claims Settlement BILLING CODE 4310–55–P the public and private sectors of the Act of 1971 (ANCSA; 43 U.S.C. 1601 et sport fishing, boating, and conservation seq.). Under authority of ANCSA, communities and is organized to Congress granted CIRI the subsurface DEPARTMENT OF THE INTERIOR enhance partnerships among industry, oil, gas, and coal estate to nearly constituency groups, and government. 200,000 acres within the Refuge. The Fish and Wildlife Service The 18-member Council, appointed by State of Alaska also owns lands adjacent the Secretary of the Interior, includes to the Refuge (Captain Cook State [FWS–R9–EA–2012–N115; FF09X60000– the Service Director and the president of Recreation Area). ANILCA Section 1110 FVWF979209000005D–XXX] the Association of Fish and Wildlife (b) requires that the Service provide for Agencies, who both serve in ex officio Sport Fishing and Boating Partnership reasonable access to the subsurface capacities. Other Council members are Council estate. CIRI has previously leased other directors from State agencies portions of its subsurface estate within AGENCY: Fish and Wildlife Service, responsible for managing recreational the Refuge. Oil and gas are currently Interior. fish and wildlife resources and being produced from other production ACTION: Notice of meeting. individuals who represent the interests units within the Refuge. of saltwater and freshwater recreational The Alaska National Interests Land SUMMARY: We, the U.S. Fish and fishing, recreational boating, the Conservation Act of 1980 (Section Wildlife Service (Service), announce a recreational fishing and boating 303[4]) established the Refuge from the public meeting of the Sport Fishing and industries, recreational fisheries Kenai Moose Range and other lands and Boating Partnership Council (Council). resource conservation, Native American set forth the following major purposes A Federal advisory committee, the tribes, aquatic resource outreach and for which the Refuge was to be Council was created in part to foster education, and tourism. Background managed: partnerships to enhance public information on the Council is available (i) To conserve fish and wildlife awareness of the importance of aquatic at http://www.fws.gov/sfbpc. populations and habitats in their natural resources and the social and economic Meeting Agenda diversity, including, but not limited to, benefits of recreational fishing and moose, bear, mountain goats, Dall boating in the United States. This The Council will hold a meeting to sheep, wolves, and other furbearers; meeting is open to the public, and consider: salmonoids and other fish; waterfowl interested persons may make oral • Issues for inclusion in the Council and other migratory and nonmigratory statements to the Council or may file Strategic Work Plan for the 2012–2014 birds; written statements for consideration. term.

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• Issues regarding the Boating • Discussion with members of the • An update on the implementation Infrastructure Grant Program, Clean Federal Interagency Council on Outdoor of the National Ocean Policy. Vessel Act Grant Program, and the Sport Recreation (FICOR) regarding Council • An update on activities of the Fish Restoration Boating Access comments to FICOR for consideration in Service’s Wildlife and Sport Fish Program. implementing the America’s Great Restoration Program. • An update on FWS progress in Outdoors Initiative. implementing the Council’s assessment • An update from the Recreational • Other miscellaneous Council of the Service’s Fisheries Program and Boating & Fishing Foundation on business. the Council’s effort to assist the progress in implementing Council The final agenda will be posted on the Fisheries Program in revising and recommendations to improve the Internet at http://www.fws.gov/sfbpc. updating its program Vision and activities and operations of the Strategic Plan. Foundation. Public Input

Then you must contact the Council Coordinator (see If you wish to FOR FURTHER INFORMATION CON- TACT) no later than

Attend the meeting ...... Monday, May 28, 2012. Submit written information or questions before the meeting for the council to consider during the meeting ...... Wednesday, May 30, 2012. Give an oral presentation during the meeting ...... Monday, May 28, 2012.

Attendance with the Council Coordinator. Investigation No. 332–528, Used Registered speakers who wish to expand Electronic Products: An Examination of Because entry to Federal buildings is upon their oral statements, or those who U.S. Exports, instituted under the restricted, all visitors are required to had wished to speak but could not be authority of section 332(g) of the Tariff preregister to be admitted. In order to accommodated on the agenda, may Act of 1930 (19 U.S.C. 1332(g)). This attend this meeting, you must register submit written statements to the investigation was requested by the by close of business on the dates listed Council Coordinator up to 30 days United States Trade Representative above in ‘‘Public Input.’’ Please submit subsequent to the meeting. (USTR). The Commission expects to your name, time of arrival, email deliver the results of its investigation to address, and phone number to the Meeting Minutes the USTR by February 8, 2013. Council Coordinator (see FOR FURTHER Summary minutes of the meeting will INFORMATION CONTACT). be maintained by the Council Summary of Proposal Coordinator (see FOR FURTHER Submitting Written Information or (1) Number of forms submitted: 1. Questions INFORMATION CONTACT) and will be available for public inspection within (2) Title of form: Electronic Products Interested members of the public may 120 days of the meeting and will be Questionnaire. submit relevant information or posted on the Council’s Web site at (3) Type of request: New. questions for the Council to consider http://www.fws.gov/sfbpc. (4) Frequency of use: Industry during the meeting. Written statements questionnaire, single data gathering, must be received by the date listed Rowan W. Gould, scheduled for 2012. above in ‘‘Public Input,’’ so that the Director. (5) Description of respondents: U.S. information may be made available to [FR Doc. 2012–11997 Filed 5–16–12; 8:45 am] firms in the used electronics processing the Council for their consideration prior BILLING CODE 4310–55–P industry. to this teleconference. Written (6) Estimated number of statements must be supplied to the questionnaires to be mailed: 5,500. Council Coordinator in one of the INTERNATIONAL TRADE (7) Estimated total number of hours to following formats: One hard copy with COMMISSION complete the form per respondent: 2.5 original signature, and one electronic hours. [INVESTIGATION NO. 332–528] copy via email (acceptable file formats (8) Information obtained from the are Adobe Acrobat PDF, MS Word, MS Used Electronic Products: An form that qualifies as confidential PowerPoint, or rich text file). Examination of U.S. Exports business information will be so treated by the Commission and not disclosed in Giving an Oral Presentation Submission of Questionnaire for OMB Review a manner that would reveal the Individuals or groups requesting to individual operations of a firm. make an oral presentation during the AGENCY: United States International Additional Information or Comment: meeting will be limited to 2 minutes per Trade Commission. Copies of the form and supporting speaker, with no more than a total of 30 ACTION: In accordance with the documents may be obtained from minutes for all speakers. Interested provisions of the Paperwork Reduction project leader Laura Bloodgood parties should contact the Council Act of 1995 (44 U.S.C. Chapter 35), the ([email protected] or 202–708– Coordinator, in writing (preferably via U.S. International Trade Commission 4726) or deputy project leader Andrea email; see FOR FURTHER INFORMATION (Commission) has submitted a request Boron ([email protected] or 202– CONTACT), to be placed on the public for approval of a questionnaire to the 205–3433). Comments about the speaker list for this meeting. To ensure Office of Management and Budget for proposal should be directed to the an opportunity to speak during the review. Purpose of Information Office of Management and Budget, public comment period of the meeting, Collection: The form is for use by the Office of Information and Regulatory members of the public must register Commission in connection with Affairs, Room 10102 (Docket Library),

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Washington, DC 20503, Attention: Decree, entered into by the United Consent Decree library at the address Docket Librarian. All comments should States, the Commonwealth of stated above). be specific, indicating which part of the Massachusetts, and the Settling Ronald G. Gluck, questionnaire is objectionable, Defendants, which resolves those claims describing the concern in detail, and Assistant Section Chief, Environmental and which requires the Settling Enforcement Section, Environment and including specific suggested revision or Defendants to (a) pay $3,812,127 to the Natural Resources Division. language changes. Copies of any Department of the Interior’s Natural comments should be provided to [FR Doc. 2012–11907 Filed 5–16–12; 8:45 am] Resource Damage Assessment and BILLING CODE 4410–15–P Andrew Martin, Chief Information Restoration Fund, to be used by the Officer, U.S. International Trade federal and state natural resource Commission, 500 E Street SW., trustees to implement natural resource DEPARTMENT OF LABOR Washington, DC 20436, who is the restoration projects and to reimburse Commission’s designated Senior Official their administrative costs associated Scientific Integrity: Statement of Policy under the Paperwork Reduction Act. with such projects, (b) pay $357,319 to Persons with mobility impairments AGENCY: Office of the Secretary, Labor. the United States to reimburse the who will need special assistance in ACTION: Extension of Comment Period. gaining access to the form and United States Department of the Interior supporting documents should contact for its assessment costs, (c) pay $42,815 SUMMARY: The Department of Labor the Secretary at 202–205–2000. Hearing to the United States to reimburse the (DOL) is extending the time period for impaired individuals are advised that National Oceanic and Atmospheric receipt of comments in response to its information on this matter can be Administration for its assessment costs, solicitation of comments on its draft obtained by contacting our TTD and (d) pay $37,739 to the Scientific Integrity Policy, originally terminal (telephone no. 202–205–1810). Commonwealth of Massachusetts to published April 17, 2012. Also, general information about the reimburse the Massachusetts Executive FOR FURTHER INFORMATION CONTACT: Commission can be obtained from its Office of Energy and Environmental E. Christi Cunningham, Associate internet site (http://www.usitc.gov). Affairs for its assessment costs. Assistant Secretary for Regulatory By order of the Commission. The Department of Justice will receive Policy, U.S. Department of Labor, 200 Issued: May 11, 2012. for a period of thirty (30) days from the Constitution Avenue NW., Room S– James R. Holbein, date of this publication comments 2312, Washington, DC 20210, [email protected], (202) 693– Secretary to the Commission. relating to the proposed Consent Decree. 5959; (this is not a toll-free number). [FR Doc. 2012–11894 Filed 5–16–12; 8:45 am] Comments should be addressed to the Assistant Attorney General, Individuals with hearing impairments BILLING CODE 7020–02–P may call 1–800–877–8339 (TTY/TDD). Environment and Natural Resources Division, P.O. Box 7611, U.S. SUPPLEMENTARY INFORMATION: On April 17, 2012, DOL published a notice in the DEPARTMENT OF JUSTICE Department of Justice, Washington, DC 20044–7611, and should refer to United Federal Register requesting comments on its draft Scientific Integrity Policy Notice of Lodging of Consent Decree States v. Bayer CropScience Inc., D.J. with a deadline for receiving comments Under the Comprehensive Ref. 90–11–2–228/7. Comments may of May 11, 2012. (See Federal Register Environmental Response, also be submitted by email to Compensation, and Liability Act Volume 77, Number 74, Pages 22805– [email protected]. A 22806.) Today, the Department is Notice is hereby given that on May 10, copy of the comments should be sent to extending the date for receipt of 2012, a proposed Consent Decree was Donald G. Frankel, Senior Counsel, comments to May 18, 2012. DOL is lodged with the United States District Environmental Enforcement Section, developing its policy on Scientific Court for the District of Massachusetts Department of Justice, Suite 616, One Integrity in response to the March 9, in United States v. Bayer CropScience Gateway Center, Newton, MA 02458 2009, Presidential Memorandum on Inc. et al., Civil Action No. 1:12–cv– ([email protected]). Scientific Integrity, and the December 10847–WGY. In this action, the United During the public comment period, 17, 2010, Memorandum from the States filed a complaint, also on May 10, the Consent Decree may be examined on Director of the Office of Science and 2012, under Section 107(a) of the the following Department of Justice Web Technology Policy. DOL is soliciting Comprehensive Environmental site, http://www.usdoj.gov/enrd/ comments on its draft policy using an Response, Compensation, and Liability Consent_Decrees.html. A copy of the Internet portal specifically designed to Act, 42 U.S.C. 9607(a), alleging that Consent Decree may also be obtained by capture your input and suggestions, Bayer CropScience Inc. and Pharmacia mail from the Consent Decree Library, http:// Corporation (‘‘Settling Defendants’’) are P.O. Box 7611, U.S. Department of dolscientificintegrity.ideascale.com/. liable for damages for injury to, This portal contains a series of Justice, Washington, DC 20044–7611 or destruction of, or loss of natural questions designed to gather by faxing or emailing a request to resources, including the reasonable cost information on how DOL can best meet of assessing such injury, destruction, or ‘‘Consent Decree Copy’’ the requirements of these memoranda. loss, at the Industri-plex Superfund Site, ([email protected]), fax no. The ability to comment using the portal located in Woburn, Massachusetts. The (202) 514–0097, phone confirmation has remained uninterrupted since it was Commonwealth of Massachusetts filed a number (202) 514–5271. In requesting a first made available for use. similar complaint on the same date. copy of the Consent Decree from the The Department of Labor is issuing Commonwealth of Massachusetts v. Consent Decree Library, please enclose this request solely to seek useful Bayer CropScience Inc. et al., Civil a check in the amount of $5.50 (25 cents information as it develops its policy. Action No. 1:12–cv–10849. At the same per page reproduction cost) payable to While responses to this request do not time as it filed its complaint, the United the U.S. Treasury (if the request is by bind the Department of Labor to any States lodged a proposed Consent fax or email, forward a check to the further actions related to the responses,

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all submissions will be made available determine if the workers meet the during the relevant period, the to the public for inspection on http:// eligibility requirements of the Trade Act Department did not compare domestic dolscientificintegrity.ideascale.com/. of 1974, as amended. production to U.S. imports. The Department has carefully reviewed the DATES: Comments must be received by Conclusion midnight May 18, 2012. request for reconsideration and the After careful review of the ADDRESSES: You may submit comments existing record, and has determined that application, I conclude that the claim is through http:// the Department will conduct further of sufficient weight to justify dolscientificintegrity.ideascale.com/. investigation to determine if the workers reconsideration of the U.S. Department meet the eligibility requirements of the E. Christi Cunningham, of Labor’s prior decision. The Trade Act of 1974, as amended. Associate Assistant Secretary for Regulatory application is, therefore, granted. Conclusion Affairs. Signed at Washington, DC, this 30th day of [FR Doc. 2012–11996 Filed 5–16–12; 8:45 am] April 2012. After careful review of the BILLING CODE 4510–22–P Del Min Amy Chen, application, I conclude that the claim is Certifying Officer, Office of Trade Adjustment of sufficient weight to justify Assistance. reconsideration of the U.S. Department DEPARTMENT OF LABOR [FR Doc. 2012–11902 Filed 5–16–12; 8:45 am] of Labor’s prior decision. The application is, therefore, granted. BILLING CODE 4510–FN–P Employment and Training Signed at Washington, DC, this 30th day of Administration April, 2012. [TA–W–81,066] DEPARTMENT OF LABOR Del Min Amy Chen, Certifying Officer, Office of Trade Adjustment Conocophillips Company, Trainer Employment and Training Assistance. Refinery, Trainer, PA; Notice of Administration [FR Doc. 2012–11901 Filed 5–16–12; 8:45 am] Affirmative Determination Regarding [TA–W–81,145; TA–W–81,145A] BILLING CODE 4510–FN–P Application for Reconsideration Sunoco, Inc., R&M Refining Division, By application dated March 26, 2012, Marcus Hook, PA; Sunoco, Inc., 10 DEPARTMENT OF LABOR the United Steel Workers Union Industrial Hwy, MS4 Building G, Lester, requested administrative PA; Notice of Affirmative Employment and Training reconsideration of the negative Determination Regarding Application Administration determination regarding workers’ for Reconsideration eligibility to apply for Trade Adjustment [TA–W–81,299] Assistance (TAA) applicable to workers By application dated March 26, 2012, Kohler Company, Malvern Division, and former workers of ConocoPhillips the United Steel Workers Union Including On-Site Leased Workers Company, Trainer Refinery, Trainer, requested administrative From Manpower Staffing and Dow Pennsylvania (subject firm). The reconsideration of the negative Cleaning Services, Malvern, AR; determination was issued on February determination regarding workers’ Amended Certification Regarding 7, 2012. The Notice of determination eligibility to apply for Trade Adjustment Eligibility To Apply for Worker was published in the Federal Register Assistance (TAA) applicable to workers Adjustment Assistance on February 28, 2012 (77 FR 12084). and former workers of Sunoco, Inc., The initial investigation resulted in a Refining Division, Marcus Hook, In accordance with Section 223 of the negative determination based on the Pennsylvania (TA–W–81,145), and Trade Act of 1974, as amended (‘‘Act’’), findings that there was no increase in Sunoco, Inc., Lester, Pennsylvania (TA– 19 U.S.C. 2273, the Department of Labor imports by the workers’ firm or its W–81,145A). The determination was issued a Certification of Eligibility to customer, nor was there a shift in issued on February 7, 2012, and the Apply for Worker Adjustment production to a foreign country or Department’s Notice of Determination Assistance on March 9, 2012, applicable acquisition of production from a foreign was published in the Federal Register to workers of Kohler Company, Malvern country by the workers’ firm. In on February 28, 2012 (77 FR 12084). Division, Malvern, Arkansas, including addition, U.S. aggregate imports of like The initial investigation resulted in a on-site leased workers from Manpower or directly competitive articles did not negative determination based on the Staffing. The Department’s notice of increase during the relevant period. findings that there was no increase in determination was published in the The request for reconsideration imports by the workers’ firm or its Federal Register on March 26, 2012 (77 alleges that worker separations at the customer, nor was there a shift in FR 17527). subject firm are related to increased production to a foreign country or At the request of a company official, imports of refined petroleum products acquisition of production from a foreign the Department reviewed the like or directly competitive with those country by the workers’ firm. In certification for workers of the subject produced by the subject firm, and that, addition, U.S. aggregate imports of like firm. The workers were engaged in the while the initial investigation revealed or directly competitive articles did not production of faucets, drains, and that U.S. aggregate imports of refined increase during the relevant period. components. petroleum products decreased during The request for reconsideration The company reports that workers the relevant period, the Department did alleges that the worker separations at from Dow Cleaning Services were not compare domestic production to the subject facilities are related to employed on-site at the Malvern, U.S. imports. increased imports of refined petroleum Arkansas location of Kohler Company, The Department has carefully products like or directly competitive Malvern Division. The Department has reviewed the request for reconsideration with those produced by the subject firm, determined that these workers were and the existing record, and has and that, while the initial investigation sufficiently under the control of the determined that the Department will revealed that U.S. aggregate imports of subject firm to be considered leased conduct further investigation to refined petroleum products decreased workers.

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Based on these findings, the firm. The workers were engaged in in employment related to the Department is amending this activities related to the supply of production of non-woven roll goods. certification to include workers leased mortgage underwriting services. On March 19, 2012, the State of from Dow Cleaning Services working The subject firm reports that workers Arkansas filed a petition on behalf of on-site at the Malvern, Arkansas from On Call Staffing Solutions were maintenance workers at the subject firm location of Kohler Company, Malvern employed on-site at the subject firm. (TA–W–81,428). During the Division. The Department has determined that investigation of TA–W–81,428, the The amended notice applicable to these workers were sufficiently under Department determined that there was a TA–W–81,299 is hereby issued as the control of the subject firm to be causal nexus between subject firm’s follows: considered leased workers. Based on closure and the workers’ separations All workers of Kohler Company, Malvern these findings, the Department is and that, therefore, worker separations Division, including on-site leased workers amending this certification to include through March 1, 2012 are attributable from Manpower Staffing and Dow Cleaning workers from On Call Staffing Solutions to conditions specified in the Trade Act Services, Malvern, Arkansas, who became working on-site at the subject firm. of 1974, as amended. The Department totally or partially separated from The amended notice applicable to has also determined that, given the employment on or after February 6, 2011 TA–W–80,278 is hereby issued as particular facts presented, it is through March 9, 2014, and all workers in follows: appropriate to amend this certification the group threatened with total or partial separation from employment on the date of All workers of Wells Fargo Bank, N.A., to include workers who, due to the Subsidiary of Wells Fargo & Company, Home certification through two years from the date subject firm’s compliance of federal Mortgage Division, including on-site leased of certification, are eligible to apply for regulations, were separated after January workers from Aerotek, Inc., Employee adjustment assistance under Chapter 2 of 6, 2012. Relations Associate, Manpower, Spherion, Title II of the Trade Act of 1974, as amended. and On Call Staffing Solutions, Costa Mesa, The Department’s decision in this Signed in Washington, DC, this 30th day of California, who became totally or partially case is limited to the precise April 2012. separated from employment on or after July circumstances of this specific case and Del Min Amy Chen, 6, 2010 through December 1, 2013, and all should not be considered as any workers in the group threatened with total or Certifying Officer, Office of Trade Adjustment indication of how the Department partial separation from employment on would proceed in other cases or in other Assistance. December 1, 2011 through December 1, 2013, [FR Doc. 2012–11898 Filed 5–16–12; 8:45 am] are eligible to apply for adjustment assistance subsequent rulemaking on this subject. BILLING CODE 4510–FN–P under Chapter 2 of Title II of the Trade Act The amended notice applicable to of 1974, as amended. TA–W–71,897 is hereby issued as Signed in Washington, DC, this 30th day of follows: DEPARTMENT OF LABOR April 2012. All workers from Chicopee, Inc., a Del Min Amy Chen, subsidiary of Polymer Group, Inc., including Employment and Training on-site leased workers from Manpower Administration Certifying Officer, Office of Trade Adjustment Assistance. Staffing, North Little Rock, Arkansas, who became totally or partially separated from [TA–W–80,278] [FR Doc. 2012–11904 Filed 5–16–12; 8:45 am] employment on or after July 31, 2008, BILLING CODE 4510–FN–P Wells Fargo Bank, N.A. Subsidiary of through March 1, 2012, and all workers in the group threatened with total or partial Wells Fargo & Company Home separation from employment on January 6, Mortgage Division Including On-Site DEPARTMENT OF LABOR 2010 through March 1, 2012, are eligible to Leased Workers From Aerotek, Inc., apply for adjustment assistance under Employee Relations Associates, Employment and Training Chapter 2 of Title II of the Trade Act of 1074, Manpower, Spherion, and on Call Administration as amended. Staffing Solutions, Costa Mesa, CA; [TA–W–71,897] Signed at Washington, DC, this 30th day of Amended Certification Regarding April 2012. Eligibility To Apply for Worker Chicopee Inc., a Subsidiary of Polymer Del Min Amy Chen, Adjustment Assistance Group, Inc., Including On-Site Leased Certifying Officer, Office of Trade Adjustment Workers From Manpower Staffing, Assistance. In accordance with Section 223 of the North Little Rock, AR; Amended Trade Act of 1974, as amended (‘‘Act’’), [FR Doc. 2012–11903 Filed 5–16–12; 8:45 am] Certification Regarding Eligibility To BILLING CODE 4510–FN–P 19 U.S.C. 2273, the Department of Labor Apply for Worker Adjustment issued a Certification of Eligibility to Assistance Apply for Worker Adjustment Assistance on December 1, 2011, In accordance with Section 223 of the DEPARTMENT OF LABOR applicable to workers of Wells Fargo Trade Act of 1974, as amended (‘‘Act’’), Employment and Training Bank, N.A., Subsidiary of Wells Fargo & 19 U.S.C. 2273, the Department of Labor Administration Company, Home Mortgage Division, issued a Certification of Eligibility to including on-site leased workers from Apply for Worker Adjustment Notice of Determinations Regarding Aerotek, Inc., Employee Relations Assistance on January 6, 2012, Eligibility To Apply for Worker Associate, Manpower, and Spherion, applicable to workers and former Adjustment Assistance Costa Mesa, California (subject firm). workers of Chicopee, Inc., a subsidiary The Department’s Notice of of Polymer Group, Inc., including on- In accordance with Section 223 of the determination was published in the site leased workers from Manpower Trade Act of 1974, as amended (19 Federal Register on December 13, 2011 Staffing, North Little Rock, Arkansas U.S.C. 2273) the Department of Labor (76 FR 77558). (subject firm). The Notice of herein presents summaries of At the request of the State Workforce determination was published in the determinations regarding eligibility to Office, the Department reviewed the Federal Register on February 16, 2010 apply for trade adjustment assistance for certification for workers of the subject (75 FR 7036). The workers are engaged workers by (TA–W) number issued

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during the period of April 23, 2012 (B) There has been an acquisition In order for an affirmative through April 27, 2012. from a foreign country by the workers’ determination to be made for adversely In order for an affirmative firm of articles/services that are like or affected workers in firms identified by determination to be made for workers of directly competitive with those the International Trade Commission and a primary firm and a certification issued produced/supplied by the workers’ firm; a certification issued regarding regarding eligibility to apply for worker and eligibility to apply for worker adjustment assistance, each of the group (3) The shift/acquisition contributed adjustment assistance, each of the group eligibility requirements of Section importantly to the workers’ separation eligibility requirements of Section 222(f) 222(a) of the Act must be met. or threat of separation. of the Act must be met. I. Under Section 222(a)(2)(A), the In order for an affirmative (1) The workers’ firm is publicly following must be satisfied: determination to be made for adversely identified by name by the International (1) A significant number or proportion affected workers in public agencies and Trade Commission as a member of a of the workers in such workers’ firm a certification issued regarding domestic industry in an investigation have become totally or partially eligibility to apply for worker resulting in— separated, or are threatened to become adjustment assistance, each of the group (A) An affirmative determination of totally or partially separated; eligibility requirements of Section serious injury or threat thereof under (2) The sales or production, or both, 222(b) of the Act must be met. section 202(b)(1); of such firm have decreased absolutely; (1) A significant number or proportion (B) An affirmative determination of and of the workers in the public agency have (3) One of the following must be become totally or partially separated, or market disruption or threat thereof satisfied: are threatened to become totally or under section 421(b)(1); or (A) Imports of articles or services like partially separated; (C) An affirmative final determination or directly competitive with articles (2) The public agency has acquired of material injury or threat thereof under produced or services supplied by such from a foreign country services like or section 705(b)(1)(A) or 735(b)(1)(A) of firm have increased; directly competitive with services the Tariff Act of 1930 (19 U.S.C. (B) Imports of articles like or directly which are supplied by such agency; and 1671d(b)(1)(A) and 1673d(b)(1)(A)); competitive with articles into which one (3) The acquisition of services (2) The petition is filed during the 1- or more component parts produced by contributed importantly to such year period beginning on the date on such firm are directly incorporated, workers’ separation or threat of which— have increased; separation. (A) A summary of the report (C) Imports of articles directly In order for an affirmative submitted to the President by the incorporating one or more component determination to be made for adversely International Trade Commission under parts produced outside the United affected secondary workers of a firm and section 202(f)(1) with respect to the States that are like or directly a certification issued regarding affirmative determination described in competitive with imports of articles eligibility to apply for worker paragraph (1)(A) is published in the incorporating one or more component adjustment assistance, each of the group Federal Register under section 202(f)(3); parts produced by such firm have eligibility requirements of Section or increased; 222(c) of the Act must be met. (B) Notice of an affirmative (D) Imports of articles like or directly (1) A significant number or proportion determination described in competitive with articles which are of the workers in the workers’ firm have subparagraph (1) is published in the produced directly using services become totally or partially separated, or Federal Register; and supplied by such firm, have increased; are threatened to become totally or (3) The workers have become totally and partially separated; or partially separated from the workers’ (2) The workers’ firm is a Supplier or (4) The increase in imports firm within— contributed importantly to such Downstream Producer to a firm that workers’ separation or threat of employed a group of workers who (A) The 1-year period described in separation and to the decline in the received a certification of eligibility paragraph (2); or sales or production of such firm; or under Section 222(a) of the Act, and (B) Notwithstanding section 223(b)(1), II. Section 222(a)(2)(B) all of the such supply or production is related to the 1-year period preceding the 1-year following must be satisfied: the article or service that was the basis period described in paragraph (2). (1) A significant number or proportion for such certification; and Affirmative Determinations for Worker of the workers in such workers’ firm (3) Either— Adjustment Assistance have become totally or partially (A) The workers’ firm is a supplier separated, or are threatened to become and the component parts it supplied to The following certifications have been totally or partially separated; the firm described in paragraph (2) issued. The date following the company (2) One of the following must be accounted for at least 20 percent of the name and location of each satisfied: production or sales of the workers’ firm; determination references the impact (A) There has been a shift by the or date for all workers of such workers’ firm to a foreign country in the (B) A loss of business by the workers’ determination. production of articles or supply of firm with the firm described in The following certifications have been services like or directly competitive paragraph (2) contributed importantly to issued. The requirements of Section with those produced/supplied by the the workers’ separation or threat of 222(a)(2)(A) (increased imports) of the workers’ firm; separation. Trade Act have been met.

TA–W No. Subject firm Location Impact date

81,180 ...... Sagoma Technologies, A Subsidiary of PTG LLC ...... Biddeford, ME ...... February 13, 2010. 81,432 ...... G4 Products, LLC, G4 Holdings, Inc., OSW and Maine Staffing Group ...... Lewiston, ME ...... March 19, 2011.

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The following certifications have been services) of the Trade Act have been issued. The requirements of Section met. 222(a)(2)(B) (shift in production or

TA–W No. Subject firm Location Impact date

81,341 ...... AAA Northern California, Automotive Service Delivery Division, Walnut Creek, CA ...... February 14, 2011. Accounting Services, PRO Unlimited. 81,349 ...... Alcatel-Lucent USA, Inc., D/B/A Alcatel-Lucent, Alcatel-Lucent Charlotte, NC ...... February 17, 2011. Holdings, Hardware Supply Chain. 81,382 ...... Vector Engineering, Inc., D/B/A Ausenco Vector, Finance and Ac- Grass Valley, CA ...... February 28, 2011. counting Team. 81,449 ...... RR Donnelley, A Subsidiary of RR Donnelley & Sons Company ... Glen Mills, PA ...... March 22, 2011. 81,453 ...... Crawford & Company, ICT Help Desk ...... Lake Zurich, IL ...... March 23, 2011. 81,453A ...... Crawford & Company, ICT Help Desk ...... Atlanta, GA ...... March 23, 2011. 81,453B ...... Crawford & Company, ICT Help Desk ...... Sunrise, FL ...... March 23, 2011. 81,459 ...... International Business Machines (IBM), Problem, Change & Re- Dallas, TX ...... March 29, 2011. covery Management, 07 Service Delivery Division. 81,459A ...... International Business Machines (IBM), Problem, Change & Re- Agoura Hills, CA ...... March 29, 2011. covery Management, 07 Service Delivery Division. 81,459B ...... International Business Machines (IBM), Problem, Change & Re- Albuquerque, NM ...... March 29, 2011. covery Management, 07 Service Delivery Division. 81,459C ...... International Business Machines (IBM), Problem, Change & Re- Atlanta, GA ...... March 29, 2011. covery Management, 07 Service Delivery Division. 81,459D ...... International Business Machines (IBM), Problem, Change & Re- Austin, TX ...... March 29, 2011. covery Management, 07 Service Delivery Division. 81,459E ...... International Business Machines (IBM), Problem, Change & Re- Boulder, CO ...... March 29, 2011. covery Management, 07 Service Delivery Division. 81,459F ...... International Business Machines (IBM), Problem, Change & Re- Chattanooga, TN ...... March 29, 2011. covery Management, 07 Service Delivery Division. 81,459G ...... International Business Machines (IBM), Problem, Change & Re- Denver, CO ...... March 29, 2011. covery Management, 07 Service Delivery Division. 81,459H ...... International Business Machines (IBM), Problem, Change & Re- Hazelwood, MO ...... March 29, 2011. covery Management, 07 Service Delivery Division. 81,459I ...... International Business Machines (IBM), Problem, Change & Re- Lexington, KY ...... March 29, 2011. covery Management, 07 Service Delivery Division. 81,459J ...... International Business Machines (IBM), Problem, Change & Re- Portage, MI ...... March 29, 2011. covery Management, 07 Service Delivery Division. 81,459K ...... International Business Machines (IBM), Problem, Change & Re- Poughkeepsie, NY ...... March 29, 2011. covery Management, 07 Service Delivery Division. 81,459L ...... International Business Machines (IBM), Problem, Change & Re- Garyville, LA ...... March 29, 2011. covery Management, 07 Service Delivery Division. 81,459M ...... International Business Machines (IBM), Problem, Change & Re- Rochester, NY ...... March 29, 2011. covery Management, 07 Service Delivery Division. 81,459N ...... International Business Machines (IBM), Problem, Change & Re- San Jose, CA ...... March 29, 2011. covery Management, 07 Service Delivery Division. 81,459O ...... International Business Machines (IBM), Problem, Change & Re- Smyrna, GA ...... March 29, 2011. covery Management, 07 Service Delivery Division. 81,459P ...... International Business Machines (IBM), Problem, Change & Re- Southbury, CT ...... March 29, 2011. covery Management, 07 Service Delivery Division. 81,481 ...... Quest Enterprises, Inc., Viking Life-Saving Equipment ...... Walsenburg, CO ...... April 5, 2011. 81,495 ...... XIUS Corporation, f/k/a Cellular Express, Inc ...... Woburn, MA ...... April 11, 2011.

The following certifications have been are certified eligible to apply for TAA) issued. The requirements of Section of the Trade Act have been met. 222(c) (supplier to a firm whose workers

TA–W No. Subject firm Location Impact date

81,436 ...... Hewlett Packard Enterprise Services, General Motors Shreveport As- Shreveport, LA ...... March 15, 2011. sembly Account, Radiant Systems.

Negative Determinations for Worker criteria for worker adjustment assistance (decline in sales or production, or both) Adjustment Assistance have not been met for the reasons and (a)(2)(B) (shift in production or specified. services to a foreign country) of section In the following cases, the The investigation revealed that the 222 have not been met. investigation revealed that the eligibility criteria under paragraphs (a)(2)(A)(i)

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TA–W No. Subject firm Location Impact date

81,411 ...... Franklin Building Materials, LLP ...... El Paso, TX.

The investigation revealed that the (increased imports) and (a)(2)(B) (shift country) of section 222 have not been criteria under paragraphs(a)(2)(A) in production or services to a foreign met.

TA–W No. Subject firm Location Impact date

81,376 ...... Stanley Black and Decker, Construction & DIY, Retail Specialists/Sales, Located in Towson, MD. Several States. 81,410 ...... Alpha Warehouse, Inc., D/B/A Auto Value ...... El Paso, TX. 81,412 ...... Kraft Foods Global, Inc., Oscar Mayer Division ...... Coshocton, OH.

Determinations Terminating U.S.C. 2271), the Department initiated petitioning worker group. Petitioners Investigations of Petitions for Worker investigations of these petitions. separated more than one year prior to Adjustment Assistance The following determinations the date of the petition cannot be terminating investigations were issued covered under a certification of a After notice of the petitions was in cases where these petitions were not petition under Section 223(b), and published in the Federal Register and filed in accordance with the therefore, may not be part of a on the Department’s Web site, as requirements of 29 CFR 90.11. Every petitioning worker group. For one or required by Section 221 of the Act (19 petition filed by workers must be signed more of these reasons, these petitions by at least three individuals of the were deemed invalid.

TA–W No. Subject firm Location Impact date

81,526 ...... Philips Healthcare/Respironics ...... Murrysville, PA.

The following determinations workers are covered by active no purpose since the petitioning group terminating investigations were issued certifications. Consequently, further of workers cannot be covered by more because the petitioning groups of investigation in these cases would serve than one certification at a time.

TA–W No. Subject firm Location Impact date

81,488 ...... StarTek USA, Inc...... Greeley, CO.

I hereby certify that the aforementioned of the Trade Act of 1974 (‘‘the Act’’) and Interested persons are invited to determinations were issued during the period are identified in the Appendix to this submit written comments regarding the of April 23, 2012 through April 27, 2012. notice. Upon receipt of these petitions, subject matter of the investigations to These determinations are available on the the Director of the Office of Trade the Director, Office of Trade Adjustment Department’s Web site tradeact/taa/taa search Adjustment Assistance, Employment form.cfm under the searchable listing of Assistance, at the address shown below, and Training Administration, has determinations or by calling the Office of not later than May 29, 2012. Trade Adjustment Assistance toll free at 888– instituted investigations pursuant to Section 221(a) of the Act. The petitions filed in this case are 365–6822. available for inspection at the Office of The purpose of each of the Dated: May 3, 2012. investigations is to determine whether the Director, Office of Trade Adjustment Michael W. Jaffe, the workers are eligible to apply for Assistance, Employment and Training Certifying Officer, Office of Trade Adjustment adjustment assistance under Title II, Administration, U.S. Department of Assistance. Chapter 2, of the Act. The investigations Labor, Room N–5428, 200 Constitution [FR Doc. 2012–11899 Filed 5–16–12; 8:45 am] will further relate, as appropriate, to the Avenue NW., Washington, DC 20210. BILLING CODE 4510–FN–P determination of the date on which total Signed at Washington, DC, this 3rd day of or partial separations began or May 2012. threatened to begin and the subdivision Michael W. Jaffe, DEPARTMENT OF LABOR of the firm involved. Certifying Officer, Office of Trade Adjustment The petitioners or any other persons Employment and Training Assistance. Administration showing a substantial interest in the subject matter of the investigations may Investigations Regarding Eligibility To request a public hearing, provided such Apply for Worker Adjustment request is filed in writing with the Assistance Director, Office of Trade Adjustment Assistance, at the address shown below, Petitions have been filed with the not later than May 29, 2012. Secretary of Labor under Section 221(a)

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APPENDIX [28 TAA petitions instituted between 4/23/12 and 4/27/12]

Subject firm Date of Date of TA–W (petitioners) Location institution Petition

81525 ...... Parkdale Mills—Plant #42 (Company) ...... Lavonia, GA ...... 04/23/12 04/09/12 81526 ...... Philips Healthcare/Respironics (Workers) ...... Murrysville, PA ...... 04/23/12 03/15/12 81527 ...... Alliant Techsystems, Inc. (ATK) (Workers) ...... Radford, VA ...... 04/24/12 04/18/12 81528 ...... McKesson Corporation (Workers) ...... San Francisco, CA ...... 04/24/12 04/12/12 81529 ...... WellPoint, Inc., Central Region Service Operations, Enroll- 4 Locations in IN, KY and 04/24/12 04/23/12 ment and Billing (Company). OH;,. 81530 ...... Allied Tube & Conduit (Union) ...... Morrisville, PA ...... 04/24/12 04/23/12 81531 ...... American Achievement Corporation (Company) ...... Austin, TX ...... 04/24/12 04/23/12 81532 ...... Verizon Data Services, LLC (Workers) ...... Temple Terrace, FL ...... 04/24/12 04/14/12 81533 ...... CDR Systems Corp. (Company) ...... Estherville, IA ...... 04/25/12 04/24/12 81534 ...... Yale Locks & Hardware (Company) ...... Lenoir City, TN ...... 04/25/12 04/18/12 81535 ...... Cardinal Glass Industries TG (Company) ...... Chehalis, WA ...... 04/26/12 04/25/12 81536 ...... Cannon Equipment (Company) ...... Chattanooga, TN ...... 04/26/12 04/25/12 81537 ...... BASF Corporation (State/One-Stop) ...... Southfield, MI ...... 04/26/12 04/25/12 81538 ...... State Journal Register (State/One-Stop) ...... Springfield, IL ...... 04/26/12 04/25/12 81539 ...... Philips Healthcare/Respironic (Workers) ...... Murrysville, PA ...... 04/26/12 04/25/12 81540 ...... Rock Creek Athletics, Inc., 203 6th Avenue West, a sub- Grinnell, IA ...... 04/26/12 04/24/12 sidiary of Neff Motive (State/One-Stop). 81541 ...... Extrusion Technologies (State/One-Stop) ...... Randolph, MA ...... 04/26/12 04/25/12 81542 ...... Silver City Aluminum (State/One-Stop) ...... Taunton, MA ...... 04/26/12 04/25/12 81543 ...... Armstrong World Industries (State/One-Stop) ...... Center, TX ...... 04/26/12 04/25/12 81544 ...... Electronics Research, Inc. (Company) ...... Gray, ME ...... 04/27/12 04/26/12 81545 ...... Alexandria Industries (State/One-Stop) ...... Alexandria, MN ...... 04/27/12 04/26/12 81546 ...... Lawson Software Inc., dba Infor Lawson (State/One-Stop) .. St. Paul, MN ...... 04/27/12 04/26/12 81547 ...... Joerns Healthcare, LLC (Company) ...... Stevens Point, WI ...... 04/27/12 04/25/12 81548 ...... Stanley Furniture Company, Inc. (Company) ...... Stanleytown, VA ...... 04/27/12 04/26/12 81549 ...... Walgreens Specialty Pharmacy (Workers) ...... Ann Arbor, MI ...... 04/27/12 04/26/12 81550 ...... Mersen (State/One-Stop) ...... Greenville, MI ...... 04/27/12 04/25/12 81551 ...... National Spinning Co. Inc. (Workers) ...... Washington, NC ...... 04/27/12 04/19/12 81552 ...... Aon Hewitt (State/One-Stop) ...... Lincolnshire, IL ...... 04/27/12 04/17/12

[FR Doc. 2012–11900 Filed 5–16–12; 8:45 am] collection of the ‘‘BLS Data Sharing opportunities available on a limited BILLING CODE 4510–FN–P Program.’’ A copy of the proposed basis for eligible researchers to access information collection request (ICR) can confidential data for purposes of be obtained by contacting the individual conducting valid statistical analyses that DEPARTMENT OF LABOR listed below in the Addresses section of further the mission of the BLS as this notice. permitted in the Confidential Bureau of Labor Statistics DATES: Written comments must be Information Protection and Statistical Efficiency Act of 2002 (CIPSEA). The Proposed Collection, Comment submitted to the office listed in the BLS makes confidential data available to Request Addresses section of this notice on or before July 16, 2012. eligible researchers through three major programs: ACTION: Notice. ADDRESSES: Send comments to Amelia Vogel, BLS Clearance Officer, Division 1. The Census of Fatal Occupational SUMMARY: The Department of Labor, as of Management Systems, Bureau of Injuries (CFOI), as part of the BLS part of its continuing effort to reduce Labor Statistics, Room 4080, 2 occupational safety and health statistics paperwork and respondent burden, Massachusetts Avenue NE., program, compiles a count of all fatal conducts a pre-clearance consultation Washington, DC 20212. Written work injuries occurring in the U.S. in program to provide the general public comments may be transmitted by fax to each calendar year. Multiple sources are and Federal agencies with an 202–691–5111. (This is not a toll free used in order to provide as complete opportunity to comment on proposed number.) and accurate information concerning and/or continuing collections of workplace fatalities as possible. A information in accordance with the FOR FURTHER INFORMATION CONTACT: research file containing CFOI data is Paperwork Reduction Act of 1995 Amelia Vogel, BLS Clearance Officer, made available offsite to eligible (PRA95) [44 U.S.C. 3506(c)(2)(A)]. This 202–691–6138. (See Addresses section.) researchers. program helps to ensure that requested SUPPLEMENTARY INFORMATION: 2. The National Longitudinal Surveys data can be provided in the desired of Youth (NLSY) is designed to format, reporting burden (time and I. Background document the transition from school to financial resources) is minimized, An important aspect of the mission of work and into adulthood. The NLSY collection instruments are clearly the BLS is to disseminate to the public collects extensive information about understood, and the impact of collection the maximum amount of information youths’ labor market behavior and requirements on respondents can be possible. Not all data are publicly educational experiences over time. The properly assessed. The Bureau of Labor available because of the importance of NLSY includes three different cohorts: Statistics (BLS) is soliciting comments maintaining the confidentiality of BLS The National Longitudinal Survey of concerning the proposed revision for the data. However, the BLS has Youth 1979 (NLSY79), the NLSY79

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Young Adult Survey, and the National statistical in nature and that the • Evaluate the accuracy of the Longitudinal Survey of Youth 1997 researcher is eligible based on agency’s estimate of the burden of the (NLSY97). NLSY data beyond the public guidelines set out in CIPSEA, the Office proposed collection of information, use data are made available in greater of Management and Budget (OMB) including the validity of the detail through an offsite program to implementation guidance on CIPSEA, methodology and assumptions used. eligible researchers. and BLS policy. This information • Enhance the quality, utility, and 3. Additionally, the BLS makes collection provides the vehicle through clarity of the information to be available data from several employment, which the BLS will obtain the necessary collected. compensation, prices, and working details to ensure all researchers and • Minimize the burden of the conditions surveys to eligible projects comply with appropriate laws collection of information on those who researchers for onsite use. Eligible and policies. are to respond, including through the use of appropriate automated, researchers can access these data in III. Desired Focus of Comments researcher rooms at the BLS national electronic, mechanical, or other office in Washington, DC The Bureau of Labor Statistics is technological collection techniques or particularly interested in comments other forms of information technology, II. Current Action that: e.g., permitting electronic submissions Office of Management and Budget • Evaluate whether the proposed of responses. clearance is being sought for the BLS collection of information is necessary Type of Review: Revision. Data Sharing Program. In order to for the proper performance of the Agency: Bureau of Labor Statistics. provide access to confidential data, the functions of the agency, including Title: BLS Data Sharing Program. BLS must determine that the whether the information will have OMB Number: 1220–0180. researcher’s project will be exclusively practical utility. Affected Public: Individuals.

Total Total Estimated total Form respondents Frequency responses Average time per response burden hours

CFOI Application ...... 10 On occasion ...... 10 35 minutes ...... 6 NLS Application ...... 134 On occasion ...... 134 30 minutes ...... 67 Onsite Researcher Applica- 28 On occasion...... 28 20 hours...... 560 tion.

Totals ...... 172 ...... 172 ...... 633

Total Burden Cost (capital/startup): SUMMARY: In accordance with the toll-free number. Email: $0. provisions of the Federal Advisory [email protected]. Committee Act, as amended (5. U.S.C., Total Burden Cost (operating/ SUPPLEMENTARY INFORMATION: With this App. 2), the Secretary of Labor intends maintenance): $0. Federal Register notice, the Assistant to establish the Whistleblower Comments submitted in response to Secretary notifies the public of the Protection Advisory Committee this notice will be summarized and/or establishment of Whistleblower (WPAC). included in the request for Office of Protection Advisory Committee Management and Budget approval of the The WPAC advises, consults with, (WPAC). WPAC’s duties will be solely information collection request; they also and makes recommendations to the advisory and consultative. WPAC will will become a matter of public record. Secretary of Labor (Secretary) and the advise, consult with, and make Dated: Signed at Washington, DC, this 14th Assistant Secretary of Labor for recommendations to the Secretary and day of May 2012. Occupational Safety and Health the Assistant Secretary on ways to Kimberley D. Hill, (Assistant Secretary) on ways to improve the fairness, efficiency, improve the fairness, efficiency, Chief, Division of Management Systems, effectiveness, and transparency of Bureau of Labor Statistics. effectiveness and transparency of OSHA’s whistleblower protection OSHA’s whistleblower protection [FR Doc. 2012–11983 Filed 5–16–12; 8:45 am] activities. In particular, WPAC will activities. BILLING CODE 4510–24–P make recommendations regarding the FOR FURTHER INFORMATION CONTACT: For development and/or implementation of: press inquiries: Mr. Francis Meilinger, • Better customer service to both DEPARTMENT OF LABOR OSHA, Office of Communications, workers who raise complaints and Room N–3647, U.S. Department of employers who are the subject of Occupational Safety and Health Labor, 200 Constitution Avenue NW., investigations; Administration Washington, DC 20210; Telephone: • Improvement in the investigative (202) 693–1999. This is not a toll-free and enforcement process, and the [Docket Number: OSHA–2012–0020] number. Email: training of OSHA investigators; [email protected]. • Improvement of regulations Whistleblower Protection Advisory governing OSHA investigations; Committee (WPAC) For general information: Sandra Dillon, Director, Office of the • Cooperative activities with federal AGENCY: Occupational Safety and Health Whistleblower Protection Program, agencies responsible for areas also Administration (OSHA), DOL. Occupational Safety and Health covered by the whistleblower protection Administration, U.S. Department of statutes enforced by OSHA; and ACTION: Notice of establishment of the Labor, Room N–3610, 200 Constitution • Other matters concerning the Whistleblower Protection Advisory Avenue NW., Washington, DC 20210; fairness, efficiency and transparency of Committee (WPAC). telephone (202) 693–2199. This is not a OSHA’s whistleblower investigations as

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identified by the Secretary or the MILLENNIUM CHALLENGE main opposition party. The country has Assistant Secretary. CORPORATION also experienced nearly six percent real GDP growth over the last ten years, Authority and Signature [MCC FR 12–05] inflation has moderated, and the exchange rate has become increasingly David Michaels, Ph.D., MPH, Notice of Entering Into a Compact With stable and competitive. Despite these Assistant Secretary of Labor for the Republic of Zambia positive outcomes, the incidence of Occupational Safety and Health, poverty nationwide, driven in part by directed the preparation of this notice AGENCY: Millennium Challenge widespread water-related disease, under the authority granted by the Corporation. ACTION: Notice. remains high at 82 percent of the Federal Advisory Committee Act population based on a $2 per day (FACA), as amended (5 U.S.C. App. 2), SUMMARY: In accordance with Section poverty line. its implementing regulations (41 CFR 610(b)(2) of the Millennium Challenge At independence in 1964, Lusaka’s part 102–3), chapter 1600 of Department Act of 2003 (Pub. L. 108–199, Division population was just over 100,000, of Labor Management Series 3 (Mar. 17, D), the Millennium Challenge representing less than four percent of 2008), Secretary of Labor’s Order 1– Corporation (MCC) is publishing a the country’s population. The city of 2012 (Jan. 18, 2012), 77 FR 3912 (Jan. summary and the complete text of the Lusaka currently has a population of 25, 2012), and the Secretary of Labor’s Millennium Challenge Compact over 1.8 million people, representing authority to administer the between the United States of America, over 10 percent of Zambia’s total whistleblower provisions found in acting through the Millennium population and is projected to have Section 11(c) of the Occupational Safety Challenge Corporation, and the nearly five million residents by 2035. and Health Act, 29 U.S.C. 660(c); the Republic of Zambia. Representatives of This rapidly increasing population is Surface Transportation Assistance Act, the United States Government and the served by a water supply and sanitation 49 U.S.C. 31105; the Asbestos Hazard Republic of Zambia executed the and drainage system constructed in the Emergency Response Act, 15 U.S.C. Compact documents on May 10, 2012. 1960s and 1970s to serve a much smaller population. 2651; the International Safe Container Dated: May 14, 2012. While the sector has seen a major Act, 46 U.S.C. 80507; the Safe Drinking Melvin F. Williams, Jr., investment in policy and institutional Water Act, 42 U.S.C. 300j–9(i); Federal VP/General Counsel and Corporate Secretary, reform over the past 15 years, the Water Pollution Control Act, 33 U.S.C. Millennium Challenge Corporation. municipal water system has not 1367; the Toxic Substances Control Act, Summary of Millennium Challenge benefited from major capital investment 15 U.S.C. 2622; the Solid Waste Compact With the Republic of Zambia in the intervening years. As a result, the Disposal Act, 42 U.S.C. 6971; the Clean system’s core infrastructure assets are Air Act, 42 U.S.C. 7622; the The five-year, $354.8 million Compact outdated, dilapidated and unable to Comprehensive Environmental with the Republic of Zambia is aimed at meet current or future demand. This Response, Compensation and Liability reducing poverty through economic contributes to a high prevalence and Act, 42 U.S.C. 9610; the Energy growth (the ‘‘Compact’’). The Compact incidence of water-related diseases, Reorganization Act, 42 U.S.C. 5851; the addresses one of Zambia’s most binding which is exacerbated by endemic Wendell H. Ford Aviation Investment constraints to economic growth through flooding resulting from insufficiently and Reform Act for the 21st Century, 49 investment in the water sector (i.e., maintained and inadequate drainage U.S.C. 42121; the Sarbanes-Oxley Act, water supply, sanitation, and drainage infrastructure. For example, Lusaka’s systems). The Compact is designed to 18 U.S.C. 1514A; the Pipeline Safety infectious diarrhea rate (including build on more than 15 years of water Improvement Act, 49 U.S.C. 60129; the cholera) is estimated at 138 per 1,000 sector reform through which Zambia has Federal Railroad Safety Act, 49 U.S.C. residents, while the city’s malaria rate is developed a strong, commercially- estimated at 120 per 1,000 residents. In 20109; the National Transit Systems operated utility, an independent Security Act, 6 U.S.C. 1142; the addition to poor health, the degraded regulator and a sound legal and and inadequate condition of the Consumer Product Safety Improvement regulatory structure. Through these system’s core infrastructure forces Act, 15 U.S.C. § 2087; Section 1558 of reforms, the Government of Zambia (the Lusaka’s residents and businesses to the Affordable Care Act, Public Law ‘‘Government’’) has established a firm waste substantial time and resources 111–148; the Consumer Financial foundation for a Compact targeted to seeking alternative sources of water, as Protection Act of 2010, 12 U.S.C.A. assist the nation’s rapidly urbanizing well as incurring lost time and property 5567; the Seaman’s Protection Act, 46 capital of Lusaka. MCC investments are damage due to flooding, resulting in U.S.C. 2114; and Section 402 of the FDA designed to continue the Government’s further losses to productivity and well- Food Safety Modernization Act, Public sector reform efforts through being. Law 111–353. institutional strengthening to improve 2. Program Overview and Budget Signed at Washington, DC on May 14, the health and economic productivity of 2012. more than 1.2 million Lusaka residents The Compact program is designed to and to help the country reduce poverty address this constraint to economic David Michaels, on a sustainable basis. The Compact has growth by supporting infrastructure Assistant Secretary of Labor for Occupational an economic rate of return of investments and continued institutional Safety and Health. approximately 13.7 percent. strengthening and reform in order to [FR Doc. 2012–11982 Filed 5–16–12; 8:45 am] expand access to, and improve the 1. Background BILLING CODE 4510–26–P reliability of, water supply and Zambia continues to strengthen its sanitation and to improve drainage democracy as evidenced most recently services in select urban and peri-urban by free and fair elections and the areas of Lusaka. smooth and peaceful transition of power To that end, the Compact includes a in 2011 from the ruling party to the single-sector Water Supply, Sanitation,

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and Drainage Project (the ‘‘Project’’) and future projected population through to have significant impact on reducing: comprised of two activities: (i) The 2035. The drainage component was (i) The incidence and prevalence of Infrastructure Activity, and (ii) the selected based on the results of water-related diseases; (ii) productive Institutional Strengthening Activity. priorities identified in a separate days lost due to water-borne and water- MCC’s corporate priorities of policy comprehensive urban development plan related diseases; (iii) the cost of water reform, gender integration and private funded by Japanese International and new sanitation connections (for sector engagement have been captured Cooperation Agency. All components some beneficiaries); (iv) the time to in the Compact design of both activities. were also selected based on the results collect water; and (v) business and To mitigate the risk of a slow down or of substantially completed feasibility residential flood losses. The Compact is reversal of the Government’s ongoing studies. designed to address these aims by: (i) sector reforms efforts, the Compact Institutional Strengthening Activity: improving service provider operating includes an agreement from the In addition to the infrastructure efficiency; (ii) increasing water storage Government to enter into a improvements, the Compact includes capacity; (iii) enhancing water delivery ‘‘Sustainability Agreement’’ with investments to support sector and capacity; (iv) upgrading wastewater operational, financial and sector institutional strengthening for both collection and treatment capacity and milestones tied to funding LWSC and LCC. The institutional quality; and (v) modernizing and disbursements to ensure ongoing strengthening activity builds on more expanding primary and secondary reforms continue. The Government has than 15 years of reform in the water and network components. also agreed in the Compact to fund, sanitation sector—during which Zambia By the end of the Compact, the Project install and make operational pre-paid has developed a viable commercial is expected to benefit approximately meters at each Government institutional utility, an independent regulator, and a 1,240,000 people in the city of Lusaka, customer. This will help ensure the sound legal and regulatory structure. 73 percent of whom currently have continued sector performance and This activity will provide technical incomes of less than $2 per day. As financial strength of partner institutions. assistance to LWSC and LCC to continue noted above, the Compact has an The following table presents the ongoing Government sector reform economic rate of return of allocation of funding across the efforts and pursue new ones designed to approximately 13.7 percent. Compact. ensure improved sector management and sustainability of MCC investments. Millennium Challenge Compact Budget This activity includes support for better Between the United States of America Project and activities ($ millions) asset and environmental management Acting Through the Millennium by LWSC. It also provides technical Challenge Corporation and the Water Supply, Sanitation, assistance for LCC to improve its Republic of Zambia and Drainage Project ...... $310.6 strategic planning and to conduct better Millennium Challenge Compact Monitoring & Evaluation ...... 5.8 maintenance and environmental Program Administration ...... 38.4 management for the city’s drainage Table of Contents Total ...... 354.8 network. Further, support under this Article 1. Goal and Objectives activity will be provided to LWSC and Section 1.1 Compact Goal 3. Summary of the Project’s Activities LCC for mainstreaming gender policies; Section 1.2 Project Objective improving service delivery to poor and Article 2. Funding and Resources Infrastructure Activity: This activity underserved populations; and carrying Section 2.1 Program Funding incorporates interventions designed to out well-designed and coordinated Section 2.2 Compact Implementation support infrastructure managed by: (i) information, education and Funding The Lusaka Water and Sewerage communications (IEC) campaigns. The Section 2.3 MCC Funding Company (LWSC), the utility primarily Section 2.4 Disbursement activity will include efforts to increase Section 2.5 Interest responsible for managing the city’s innovation in pro-poor service delivery water and sanitation infrastructure; and Section 2.6 Government Resources; in the water sector through, among other Budget (ii) Lusaka City Council (LCC), the local possibilities, grants to community-based Section 2.7 Limitations of the Use of MCC government entity responsible for organizations, civil society and/or Funding managing Lusaka’s drainage private sector entities to enhance and Section 2.8 Taxes infrastructure. A major portion of the support the Compact’s sustainability Article 3. Implementation investment is focused on rehabilitation through an innovation grant component. Section 3.1 Program Implementation of Lusaka’s core water supply network, The Compact also includes program Agreement including components designed administration costs estimated at $38.4 Section 3.2 Government Responsibilities Section 3.3 Policy Performance specifically to reduce non-revenue million over a five-year timeframe, water. This activity also includes Section 3.4 Accuracy of Information including the costs of administration, Section 3.5 Implementation Letters interventions designed to expand the management, auditing, and fiscal and Section 3.6 Procurement and Grants city’s water supply network; rehabilitate procurement services. In addition, the Section 3.7 Records; Accounting; Covered and enlarge select sewer networks; cost of monitoring and evaluation of the Providers; Access improve select drainage infrastructure; Compact is budgeted at $5.8 million. Section 3.8 Audits; Reviews and provide support for engineering and Article 4. Communications resettlement professional services. 4. Expected Results, Beneficiaries, and Section 4.1 Communications Each of the water supply and Benefits Section 4.2 Representatives sanitation components was considered The Compact aims to increase Section 4.3 Signatures based on the results of investment incomes in Lusaka by creating Article 5. Termination; Suspension; master plans supported by MCC during Expiration conditions for a healthier population, Section 5.1 Termination; Suspension the Compact development process, which would result in more time Section 5.2 Consequences of which chart a three-phase, more than available for productive economic Termination, Suspension or Expiration $3.0 billion overall plan through which activity. More specifically, in addressing Section 5.3 Refunds; Violation Lusaka can meet the needs of its current health conditions, the investment seeks Section 5.4 Survival

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Article 6. Compact Annexes; Article 1. Goal and Objectives (v) Other activities to facilitate Amendments; Governing Law Compact implementation as approved Section 1.1 Compact Goal Section 6.1 Annexes by MCC. Section 6.2 Amendments The goal of this Compact is to reduce The allocation of Compact Section 6.3 Inconsistencies poverty through economic growth in Implementation Funding is generally Section 6.4 Governing Law described in Annex II. Section 6.5 Additional Instruments Zambia (the ‘‘Compact Goal’’). MCC’s Section 6.6 References to MCC Web site assistance will be provided in a manner (b) Without limiting the generality of Section 6.7 References to Laws, that strengthens good governance, Section 2.2(a), the Government agrees Regulations, Policies, and Guidelines economic freedom and investments in that MCC will directly administer and Section 6.8 MCC Status the people of Zambia. manage a portion of the Compact Article 7. Entry Into Force Implementation Funding in order to Section 7.1 International Agreements Section 1.2 Project Objective develop any detailed designs and Section 7.2 Conditions Precedent to Entry The objective of the Project (the resettlement action plans required for into Force ‘‘Project Objective’’) is to expand access the Project, and to facilitate any other Section 7.3 Date of Entry into Force to, and improve the reliability of, water uses of the Compact Implementation Section 7.4 Compact Term Funding contemplated in clause (a) Section 7.5 Provisional Application supply and sanitation, and improve Annex I: Program Description drainage services in select urban and above, as may be agreed in writing by Annex II: Multi-Year Financial Plan peri-urban areas of the city of Lusaka in the Parties (the ‘‘MCC Contracted CIF Summary order to decrease the incidence of water- Activities’’). Notwithstanding anything Annex III: Description of the Monitoring and borne and water-related diseases, to the contrary in this Compact or the Evaluation Plan generate time savings for households Program Implementation Agreement, Annex IV: Conditions to Disbursement of and businesses and reduce non-revenue MCC will utilize applicable United Compact Implementation Funding water in the water supply network. States government procurement rules Annex V: Definitions and regulations in any procurements it Annex VI: Tax Schedules Article 2. Funding and Resources administers and manages in connection Millennium Challenge Compact Section 2.1 Program Funding with the MCC CIF Contracted Activities, and will disburse MCC Funding from Preamble Upon entry into force of this Compact time to time for the MCC CIF Contracted in accordance with Section 7.3, MCC This Millennium Challenge Compact Activities directly to the relevant will grant to the Government, under the provider upon receipt of a valid invoice (this ‘‘Compact’’) is between the United terms of this Compact, an amount not to States of America, acting through the approved by MCC. exceed Three Hundred and Thirty Nine (c) Each Disbursement of Compact Millennium Challenge Corporation, a Million Four Hundred and Sixty Eight United States government corporation Implementation Funding (other than Thousand Seven Hundred and One any Disbursement for the MCC CIF (‘‘MCC’’), and the Republic of Zambia United States Dollars (US$339,468,701) (‘‘Zambia’’), acting through its Contracted Activities) is subject to (‘‘Program Funding’’) for use by the satisfaction of the conditions precedent government (the ‘‘Government’’) Government to implement the Program. (individually a ‘‘Party’’ and collectively, to such disbursement as set forth in The allocation of Program Funding is Annex IV. the ‘‘Parties’’). Capitalized terms used in generally described in Annex II. this Compact will have the meanings (d) If MCC determines that the full provided in Annex V. Section 2.2 Compact Implementation amount of Compact Implementation Funding Funding available under Section 2.2(a) Recognizing that the Parties are exceeds the amount that reasonably can committed to the shared goals of (a) Upon signing of this Compact, be utilized for the purposes set forth in promoting economic growth and the MCC will grant to the Government, Section 2.2(a), MCC, by written notice to elimination of extreme poverty in under the terms of this Compact and in the Government, may withdraw the Zambia and that MCC assistance under addition to the Program Funding excess amount, thereby reducing the this Compact supports Zambia’s described in Section 2.1, an amount not amount of the Compact Implementation demonstrated commitment to to exceed Fifteen Million Two Hundred Funding available under Section 2.2(a) strengthening good governance, and Eighty Eight Thousand Nine (such excess, the ‘‘Excess CIF economic freedom and investments in Hundred and Thirty Nine United States Amount’’). In such event, the amount of people; Dollars (US$15,288,939) (‘‘Compact Compact Implementation Funding Recalling that the Government Implementation Funding’’) under granted to the Government under consulted with the private sector and Section 609(g) of the Millennium Section 2.2(a) will be reduced by the civil society of Zambia to determine the Challenge Act of 2003, as amended (the Excess CIF Amount, and MCC will have priorities for the use of MCC assistance ‘‘MCA Act’’), for use to facilitate no further obligations with respect to and developed and submitted to MCC a implementation of the Compact, such Excess CIF Amount. proposal for such assistance to achieve including for the following purposes: (e) MCC, at its option by written lasting economic growth and poverty (i) Financial management and notice to the Government, may elect to reduction; and procurement activities; grant to the Government an amount (ii) Administrative activities equal to all or a portion of such Excess Recognizing that MCC wishes to help (including start-up costs such as staff CIF Amount as an increase in the Zambia implement the program salaries) and administrative support Program Funding, and such additional described herein to achieve the goal and expenses such as rent, computers and Program Funding will be subject to the objectives described herein (as such other information technology or capital terms and conditions of this Compact program description and objectives may equipment; applicable to Program Funding. be amended from time to time in (iii) Monitoring and evaluation accordance with the terms hereof, the activities; Section 2.3 MCC Funding ‘‘Program’’); (iv) Feasibility, design, and other Program Funding and Compact The Parties hereby agree as follows: studies; and Implementation Funding are

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collectively referred to in this Compact Compact or as further notified to the similar charges on ownership, as ‘‘MCC Funding,’’ and includes any Government in writing or by posting possession or use of any property in refunds or reimbursements of Program from time to time on the MCC Web site connection with the Program; and (iv) Funding or Compact Implementation at www.mcc.gov (the ‘‘MCC Web site’’), taxes and other similar charges on Funding paid by the Government in including but not limited to the income, profits or gross receipts accordance with this Compact. following purposes: attributable to work performed in (a) For assistance to, or training of, the connection with the Program and Section 2.4 Disbursement military, police, militia, national guard related social security taxes and other In accordance with this Compact and or other quasi-military organization or similar charges on all natural or legal the Program Implementation unit; persons performing work in connection Agreement, MCC will disburse MCC (b) For any activity that is likely to with the Program except (x) natural Funding for expenditures incurred in cause a substantial loss of United States persons who are citizens or permanent furtherance of the Program (each jobs or a substantial displacement of residents of Zambia; and (y) legal instance, a ‘‘Disbursement’’). Subject to United States production; persons formed under the laws of the satisfaction of all applicable (c) To undertake, fund or otherwise Zambia (but excluding MCA–Zambia conditions precedent, the proceeds of support any activity that is likely to and any other entity formed for the Disbursements will be made available to cause a significant environmental, purpose of implementing the the Government, at MCC’s sole election, health or safety hazard, as further Government’s obligations hereunder). by (a) deposit to one or more bank described in MCC’s environmental and social assessment guidelines and any (b) The mechanisms that the accounts established by the Government Government will use to implement the and acceptable to MCC (each, a guidance documents issued in connection with the guidelines posted principal tax exemptions required by ‘‘Permitted Account’’) or (b) direct Section 2.8(a) are set forth in Annex VI. payment to the relevant provider of from time to time on the MCC Web site or otherwise made available to the Such mechanisms may include goods, works or services for the exemptions from the payment of Taxes implementation of the Program. MCC Government (collectively, the ‘‘MCC Environmental Guidelines’’); or that have been granted in accordance Funding may be expended only for with applicable law, refund or Program expenditures. (d) To pay for the performance of abortions as a method of family reimbursement of Taxes by the Section 2.5 Interest planning or to motivate or coerce any Government to MCC, MCA–Zambia or to the taxpayer, or payment by the The Government will pay or transfer person to practice abortions, to pay for Government to MCA–Zambia or MCC, to MCC, in accordance with the Program the performance of involuntary for the benefit of the Program, of an Implementation Agreement, any interest sterilizations as a method of family agreed amount representing any or other earnings that accrue on MCC planning or to coerce or provide any collectible Taxes on the items described Funding prior to such funding being financial incentive to any person to in Section 2.8(a). used for a Program purpose. undergo sterilizations or to pay for any biomedical research which relates, in (c) If a Tax has been paid contrary to Section 2.6 Government Resources; whole or in part, to methods of, or the the requirements of Section 2.8(a) or Budget performance of, abortions or involuntary Annex VI, the Government will refund (a) The Government will provide all sterilization as a means of family promptly to MCC (or to another party as funds and other resources and will take planning. designated by MCC) the amount of such Tax in United States Dollars or the all actions that are necessary to carry Section 2.8 Taxes out the Government’s responsibilities currency of Zambia within thirty (30) under this Compact. (a) Unless the Parties specifically days (or such other period as may be (b) The Government will use its best agree otherwise in writing, the agreed in writing by the Parties) after efforts to ensure that all MCC Funding Government will ensure that all MCC the Government is notified in writing it receives or is projected to receive in Funding is free from the payment or (whether by MCC or MCA–Zambia) that each of its fiscal years is fully accounted imposition of any existing or future such Tax has been paid. for in its annual budget on a multi-year taxes, duties, levies, contributions or (d) No MCC Funding, proceeds basis. other similar charges (but not fees or thereof or Program Assets may be (c) The Government will not reduce charges for services that are generally applied by the Government in the normal and expected resources that applicable in Zambia, reasonable in satisfaction of its obligations under it would otherwise receive or budget amount and imposed on a non- Section 2.8(c). from sources other than MCC for the discriminatory basis) (‘‘Taxes’’) of or in activities contemplated under this Zambia (including any such Taxes Article 3. Implementation Compact and the Program. imposed by a national, regional, local or Section 3.1 Program Implementation (d) Unless the Government discloses other governmental or taxing authority Agreement otherwise to MCC in writing, MCC of or in Zambia). Specifically, and Funding will be in addition to the without limiting the generality of the The Parties will enter into an resources that the Government would foregoing, MCC Funding will be free agreement providing further detail on otherwise receive or budget for the from the payment of (i) any tariffs, the implementation arrangements, fiscal activities contemplated under this customs duties, import taxes, export accountability and disbursement and Compact and the Program. taxes and other similar charges on any use of MCC Funding, among other goods, works or services introduced into matters (the ‘‘Program Implementation Section 2.7 Limitations on the Use of Zambia in connection with the Program; Agreement’’); and the Government will MCC Funding (ii) sales tax, value added tax, excise tax, implement the Program in accordance The Government will ensure that property transfer tax and other similar with this Compact, the Program MCC Funding is not used for any charges on any transactions involving Implementation Agreement, any other purpose that would violate United goods, works or services in connection Supplemental Agreement and any States law or policy, as specified in this with the Program; (iii) taxes and other Implementation Letter.

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Section 3.2 Government identified in Section 607 of the MCA acceptable to MCC. In furtherance of Responsibilities Act, and the selection criteria and this requirement, and prior to the (a) The Government has principal methodology used by MCC. issuance of any Grant, the Government and MCC shall agree upon written responsibility for overseeing and Section 3.4 Accuracy of Information managing the implementation of the procedures to govern the identification The Government assures MCC that, as of potential Grant recipients, including Program. of the date this Compact is signed by the (b) The Government hereby designates without limitation appropriate Government, the information provided Millennium Challenge Account-Zambia eligibility and selection criteria and to MCC by or on behalf of the award procedures. Such agreed as the accountable entity to implement Government in the course of reaching procedures shall be posted on the MCA– the Program and to exercise and perform agreement with MCC on this Compact is Zambia Web site. the Government’s right and obligation to true, correct and complete in all oversee, manage and implement the Section 3.7 Records; Accounting; material respects. Program, including without limitation, Covered Providers; Access managing the implementation of the Section 3.5 Implementation Letters (a) Government Books and Records. Project and its Activities, allocating From time to time, MCC may provide The Government will maintain, and will resources and managing procurements. guidance to the Government in writing use its best efforts to ensure that all Such entity will be referred to herein as on any matters relating to this Compact, Covered Providers maintain, accounting ‘‘MCA–Zambia,’’ and will have the MCC Funding or implementation of the books, records, documents and other authority to bind the Government with Program (each, an ‘‘Implementation evidence relating to the Program regard to all Program activities. The Letter’’). The Government will use such adequate to show, to MCC’s satisfaction, designation of MCA–Zambia guidance in implementing the Program. the use of all MCC Funding and the contemplated by this Section 3.2(b) will The Parties may also issue jointly implementation and results of the not relieve the Government of any agreed-upon Implementation Letters to Program (‘‘Compact Records’’). In obligations or responsibilities hereunder confirm and record their mutual addition, the Government will furnish or under any related agreement, for understanding on aspects related to the or cause to be furnished to MCC, upon which the Government remains fully implementation of this Compact, the its request, originals or copies of such responsible. MCC hereby acknowledges Program Implementation Agreement or Compact Records. and consents to the designation in this other related agreements. (b) Accounting. The Government will Section 3.2(b). maintain and will use its best efforts to (c) The Government will ensure that Section 3.6 Procurement and Grants ensure that all Covered Providers any Program Assets or services funded (a) The Government will ensure that maintain Compact Records in in whole or in part (directly or the procurement of all goods, works and accordance with generally accepted indirectly) by MCC Funding are used services by the Government or any accounting principles prevailing in the solely in furtherance of this Compact Provider to implement the Program will United States, or at the Government’s and the Program unless MCC agrees be consistent with the ‘‘MCC Program option and with MCC’s prior written otherwise in writing. Procurement Guidelines’’ posted from approval, other accounting principles, (d) The Government will take all time to time on the MCC Web site (the such as those prescribed by the necessary or appropriate steps to ‘‘MCC Program Procurement International Accounting Standards achieve the Project Objective during the Guidelines’’). The MCC Program Board. Compact Records must be Compact Term (including, without Procurement Guidelines include the maintained for at least five (5) years limiting Section 2.6(a), funding all costs following requirements, among others: after the end of the Compact Term or for that exceed MCC Funding and are (i) Open, fair, and competitive such longer period, if any, required to required to carry out the terms hereof procedures must be used in a resolve any litigation, claims or audit and achieve such objectives, unless transparent manner to solicit, award and findings or any applicable legal MCC agrees otherwise in writing). administer contracts and to procure requirements. (e) The Government will fully comply goods, works and services; (c) Providers and Covered Providers. with the Program Guidelines, as (ii) Solicitations for goods, works, and Unless the Parties agree otherwise in applicable, in its implementation of the services must be based upon a clear and writing, a ‘‘Provider’’ is (i) any entity of Program. accurate description of the goods, works the Government that receives or uses (f) The Government grants to MCC a and services to be acquired; MCC Funding or any other Program perpetual, irrevocable, royalty-free, (iii) Contracts must be awarded only Asset in carrying out activities in worldwide, fully paid, assignable right to qualified contractors that have the furtherance of this Compact or (ii) any and license to practice or have practiced capability and willingness to perform third party that receives at least on its behalf (including the right to the contracts in accordance with their US$50,000 in the aggregate of MCC produce, reproduce, publish, repurpose, terms on a cost effective and timely Funding (other than as salary or use, store, modify or make available) basis; and compensation as an employee of an any portion or portions of Intellectual (iv) No more than a commercially entity of the Government) during the Property as MCC sees fit in any reasonable price, as determined, for Compact Term. A ‘‘Covered Provider’’ is medium, now known or hereafter example, by a comparison of price (i) a non-United States Provider that developed, for any purpose whatsoever. quotations and market prices, will be receives (other than pursuant to a direct paid to procure goods, works and contract or agreement with MCC) Section 3.3 Policy Performance services. US$300,000 or more of MCC Funding in In addition to undertaking the specific (b) The Government will ensure that any Government fiscal year or any other policy, legal and regulatory reform any grant issued in furtherance of the non-United States person or entity that commitments identified in Annex I (if Program (each, a ‘‘Grant’’) is awarded, receives, directly or indirectly, any), the Government will seek to implemented and managed pursuant to US$300,000 or more of MCC Funding maintain and to improve its level of open, fair and competitive procedures from any Provider in such fiscal year or performance under the policy criteria administered in a transparent manner (ii) any United States Provider that

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receives (other than pursuant to a direct organization, on the other hand, state Facsimile: +260 211 251078, Telephone: contract or agreement with MCC) that the United States nonprofit +260 211 250481, +260 211 254263 US$500,000 or more of MCC Funding in organization is subject to the applicable Section 4.2 Representatives any Government fiscal year or any other audit requirements contained in OMB United States person or entity that Circular A–133, ‘‘Audits of States, Local For all purposes of this Compact, the receives, directly or indirectly, Governments, and Non-Profit Government will be represented by the US$500,000 or more of MCC Funding Organizations,’’ issued by the United individual holding the position of, or from any Provider in such fiscal year. States Office of Management and acting as, the Minister of Finance, and (d) Access. Upon MCC’s request, the Budget; (ii) a United States for-profit MCC will be represented by the Government, at all reasonable times, Covered Provider, on the other hand, individual holding the position of, or will permit, or cause to be permitted, state that the United States for-profit acting as, Vice President, Compact authorized representatives of MCC, an organization is subject to audit by the Operations (each of the foregoing, a authorized Inspector General of MCC applicable United States Government ‘‘Principal Representative’’). Each Party, (‘‘Inspector General’’), the United States agency, unless the Government and by written notice to the other Party, may Government Accountability Office, any MCC agree otherwise in writing; and designate one or more additional auditor responsible for an audit (iii) a non-US Covered Provider, on the representatives (each, an ‘‘Additional contemplated herein or otherwise other hand, state that the non-US Representative’’) for all purposes other conducted in furtherance of this Covered Provider is subject to audit in than signing amendments to this Compact and any agents or accordance with the Audit Guidelines. Compact. The Government hereby representatives engaged by MCC or the (c) Corrective Actions. The designates the chairperson of the Board Government to conduct any assessment, Government will use its best efforts to of MCA–Zambia as an Additional review or evaluation of the Program, the ensure that each Covered Provider (i) Representative. A Party may change its opportunity to audit, review, evaluate or takes, where necessary, appropriate and Principal Representative to a new inspect facilities, assets and activities timely corrective actions in response to representative that holds a position of funded in whole or in part by MCC audits; (ii) considers whether the results equal or higher authority upon written Funding. of the Covered Provider’s audit notice to the other Party. Section 3.8 Audits; Reviews necessitates adjustment of the Section 4.3 Signatures (a) Government Audits. Except as the Government’s records; and (iii) permits independent auditors to have access to Signatures to this Compact and to any Parties may agree otherwise in writing, amendment to this Compact will be the Government will, on at least a semi- its records and financial statements as necessary. original signatures appearing on the annual basis, conduct, or cause to be same page or in an exchange of letters (d) Audit by MCC. MCC will have the conducted, financial audits of all or diplomatic notes. With respect to all right to arrange for audits of the disbursements of MCC Funding documents arising out of this Compact Government’s use of MCC Funding. covering the period from signing of this (other than the Program Implementation Compact until the earlier of the (e) Cost of Audits, Reviews or Agreement) and amendments thereto, following December 31 or June 30 and Evaluations. MCC Funding may be used signatures may, as appropriate, be covering each six-month period to fund the costs of any audits, reviews delivered by facsimile or electronic mail thereafter ending December 31 and June or evaluations required under this and in counterparts and will be binding 30, through the end of the Compact Compact. on the Party delivering such signature to Term. In addition, upon MCC’s request, Article 4. Communications the same extent as an original signature the Government will ensure that such would be. audits are conducted by an independent Section 4.1 Communications auditor approved by MCC and named Article 5. Termination; Suspension; on the list of local auditors approved by Any document or communication Expiration the Inspector General or a United required or submitted by either Party to Section 5.1 Termination; Suspension States–based certified public accounting the other under this Compact must be in firm selected in accordance with the writing and, except as otherwise agreed (a) Either Party may terminate this ‘‘Guidelines for Financial Audits with MCC, in English. For this purpose, Compact without cause in its entirety by Contracted by MCA’’ (the ‘‘Audit the address of each Party is set forth giving the other Party thirty (30) days’ Guidelines’’) issued and revised from below. prior written notice. MCC may also time to time by the Inspector General, To MCC: Millennium Challenge terminate this Compact or MCC Funding which are posted on the MCC Web site. Corporation, Attention: Vice President, without cause in part by giving the Audits will be performed in accordance Compact Operations, (with a copy to the Government thirty (30) days’ prior with the Audit Guidelines and be Vice President and General Counsel, written notice. subject to quality assurance oversight by and the MCC resident country mission (b) MCC may, immediately, upon the Inspector General. Each audit must in Zambia), 875 Fifteenth Street NW., written notice to the Government, be completed and the audit report Washington, DC 20005, United States of suspend or terminate this Compact or delivered to MCC no later than 90 days America, Facsimile: +1 (202) 521–3700, MCC Funding, in whole or in part, and after the first period to be audited and Telephone: +1 (202) 521–3600, Email: any obligation related thereto, if MCC no later than 90 days after each June 30 [email protected] (Vice President, determines that any circumstance and December 31 thereafter, or such Compact Operations), identified by MCC, as a basis for other period as the Parties may [email protected] (Vice suspension or termination (whether in otherwise agree in writing. President and General Counsel) writing to the Government or by posting (b) Audits of Other Entities. The To the Government (with a copy to the on the MCC Web site) has occurred, Government will ensure that MCC- MCA–Zambia): Minister of Finance, which circumstances include but are financed agreements between the Ministry of Finance and National not limited to the following: Government or any Provider, on the one Planning, P.O. Box 50062, Chimanga (i) The Government fails to comply hand, and (i) a United States nonprofit Road, Lusaka, Republic of Zambia, with its obligations under this Compact

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or any other agreement or arrangement condition for which MCC Funding was mechanisms for exempting MCC entered into by the Government in suspended or terminated. Funding from Taxes as set forth in connection with this Compact or the Annex VI; provided that, in each case, Section 5.3 Refunds; Violation Program; any such modification: (1) Is consistent (ii) An event or series of events has (a) If any MCC Funding, any interest in all material respects with the Project occurred that makes it probable that the or earnings thereon, or any Program Objective; (2) does not cause the amount Project Objective will not be achieved Asset is used for any purpose in of Program Funding to exceed the during the Compact Term or that the violation of the terms of this Compact, aggregate amount specified in Section Government will not be able to perform then MCC may require the Government 2.1 (as may be modified by operation of its obligations under this Compact; to repay to MCC in United States Dollars Section 2.2(e)); (3) does not cause the (iii) A use of MCC Funding or the value of the misused MCC Funding, amount of Compact Implementation continued implementation of this interest, earnings, or asset, plus interest Funding to exceed the aggregate amount Compact or the Program violates within thirty (30) days after the specified in Section 2.2(a); (4) does not applicable law or United States Government’s receipt of MCC’s request reduce the Government’s Government policy, whether now or for repayment. The Government will not responsibilities or contribution of hereafter in effect; use MCC Funding, proceeds thereof or resources required under Section 2.6; (iv) The Government or any other Program Assets to make such payment. and (5) does not extend the Compact person or entity receiving MCC Funding (b) Notwithstanding any other Term. or using Program Assets is engaged in provision in this Compact or any other activities that are contrary to the existing agreement to the contrary, Section 6.3 Inconsistencies national security interests of the United MCC’s right under Section 5.3(a) for a In the event of any conflict or States; refund will continue during the inconsistency between: (v) An act has been committed or an Compact Term and for a period of (i) (a) Any Annex and any of Articles 1 omission or an event has occurred that five (5) years thereafter or (ii) one (1) through 7, such Articles 1 through 7, as would render Zambia ineligible to year after MCC receives actual applicable, will prevail; or receive United States economic knowledge of such violation, whichever (b) This Compact and any other assistance under Part I of the Foreign is later. agreement between the Parties regarding Assistance Act of 1961, as amended (22 Section 5.4 Survival the Program, this Compact will prevail. U.S.C. 2151 et seq.), by reason of the application of any provision of such act The Government’s responsibilities Section 6.4 Governing Law or any other provision of law; under this Section and Sections 2.7, This Compact is an international (vi) The Government has engaged in 3.2(f), 3.7, 3.8, 5.2, 5.3 and 6.4 will agreement and as such will be governed a pattern of actions inconsistent with survive the expiration, suspension or by the principles of international law. the criteria used to determine the termination of this Compact. Section 6.5 Additional Instruments eligibility of Zambia for assistance Article 6. Compact Annexes; under the MCA Act; Amendments; Governing Law Any reference to activities, obligations (vii) Zambia is classified as a Tier 3 or rights undertaken or existing under or country in the United States Department Section 6.1 Annexes in furtherance of this Compact or of State’s annual Trafficking in Persons Each annex to this Compact similar language will include activities, Report; and constitutes an integral part hereof, and obligations and rights undertaken by, or (viii) The Government or another references to ‘‘Annex’’ mean an annex to existing under or in furtherance of any person or entity receiving MCC Funding this Compact unless otherwise expressly agreement, document or instrument or using Program Assets is found to stated. related to this Compact and the have been convicted of a narcotics Program. Section 6.2 Amendments offense or to have been engaged in drug Section 6.6 References to MCC Web trafficking. (a) The Parties may amend this Compact only by a written agreement site Section 5.2 Consequences of signed by the Principal Representatives Any reference in this Compact, the Termination, Suspension or Expiration (or such other government official Program Implementation Agreement or (a) Upon the suspension or designated by the relevant Principal any other agreement entered into in termination, in whole or in part, of this Representative). connection with this Compact, to a Compact or any MCC Funding, or upon (b) Notwithstanding Section 6.2(a), document or information available on, the expiration of this Compact, the the Parties may agree in writing, signed or notified by posting on the MCC Web provisions of Section 4.2 of the Program by the Principal Representatives (or site will be deemed a reference to such Implementation Agreement will govern such other government official document or information as updated or the post-suspension, post-termination or designated by the relevant Principal substituted on the MCC Web site from post-expiration treatment of MCC Representative) or any Additional time to time. Funding, any related Disbursements and Representative, to modify any Annex to Program Assets. Any portion of this this Compact in order to, without Section 6.7 References to Laws, Compact, MCC Funding, the Program limitation: (i) Suspend, terminate or Regulations, Policies and Guidelines Implementation Agreement or any other modify the Project or any Activity, or to Each reference in this Compact, the Supplemental Agreement that is not create a new project; (ii) change the Program Implementation Agreement or suspended or terminated will remain in allocations of funds as set forth in any other agreement entered into in full force and effect. Annex II as of the date hereof (including connection with this Compact, to a law, (b) MCC may reinstate any suspended to allocate funds to a new project); (iii) regulation, policy, guideline or similar or terminated MCC Funding under this modify the Implementation Framework document will be construed as a Compact if MCC determines that the described in Annex I; (iv) add, delete or reference to such law, regulation, Government or other relevant person or waive any condition precedent policy, guideline or similar document as entity has committed to correct each described in Annex IV; or (v) modify the it may, from time to time, be amended,

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revised, replaced, or extended and will Government acceptable to MCC), in for periodic technical audits of the include any law, regulation, policy, form and substance satisfactory to MCC; Government’s and LWSC’s performance guideline or similar document issued and under or compliance with such under or otherwise applicable or related (iii) Complete, certified copies of all agreement. to such law, regulation, policy, decrees, legislation, regulations or other Section 7.3 Date of Entry into Force guideline or similar document. governmental documents relating to the Government’s domestic requirements This Compact will enter into force on Section 6.8 MCC Status for this Compact to enter into force, the date of the letter from MCC to the MCC is a United States government which MCC may post on its Web site or Government in an exchange of letters corporation acting on behalf of the otherwise make publicly available; confirming that MCC has completed its United States Government in the (c) MCC will not have determined domestic requirements for entry into implementation of this Compact. MCC that, after signature of this Compact, the force of this Compact and that the and the United States Government Government has engaged in a pattern of conditions precedent to entry into force assume no liability for any claims or actions inconsistent with the eligibility in Section 7.2 have been met. criteria for MCC Funding; loss arising out of activities or omissions Section 7.4 Compact Term under this Compact. The Government (d) The Government must have waives any and all claims against MCC delivered to MCC a plan (the ‘‘GRZ This Compact will remain in force for or the United States Government or any Sanitation Connection Action Plan’’), five (5) years after its entry into force, current or former officer or employee of consistent with LWSC’s ‘‘Sanitation unless terminated earlier under Section MCC or the United States Government Marketing Program’’ approved by the 5.1 (the ‘‘Compact Term’’). Government, describing how the for all loss, damage, injury, or death Section 7.5 Provisional Application arising out of activities or omissions Government will administer the under this Compact, and agrees that it supplemental Government funding to be Upon signature of this Compact and will not bring any claim or legal set aside to assist beneficiaries that are until this Compact has entered into proceeding of any kind against any of unable to pay for household force in accordance with Section 7.3, the above entities or persons for any connections to the sanitation the Parties will provisionally apply the such loss, damage, injury, or death. The infrastructure assets to be financed terms of this Compact; provided that, no Government agrees that MCC and the under this Compact, which plan must MCC Funding, other than Compact United States Government or any be in form and substance satisfactory to Implementation Funding, will be made current or former officer or employee of MCC; available or disbursed before this (e) The Government must have MCC or the United States Government Compact enters into force. delivered to MCC a certified copy of a will be immune from the jurisdiction of In Witness Whereof, the undersigned, duly resolution of the board of directors of all courts and tribunals of Zambia for authorized by their respective governments, LWSC (or such similar instrument as any claim or loss arising out of activities have signed this Compact. may be proposed by the Government or omissions under this Compact. Done at Lusaka, Zambia, this 10th day of and is acceptable to MCC) May, 2012, in the English language only. Article 7. Entry Into Force demonstrating, to MCC’s satisfaction, For the United States of America, acting that at least fifty percent (50 percent) of through the Millennium Challenge Section 7.1 International Agreements LWSC’s Retained Earnings will be Corporation, The Parties understand that each of reserved for asset renewal and capital Name: Daniel W. Yohannes, the Compact and the Program expansion; Title: Chief Executive Officer. Implementation Agreement, upon its (f) MCC will have determined that the For the Republic of Zambia, entry into force, will, in the event of any Government has verified a reasonable Name: Alexander B. Chikwanda, conflict, prevail over the domestic laws amount of its outstanding payment Title: Minister of Finance. of Zambia (other than the Constitution obligations to LWSC (as evidenced to Annex I Program Description of Zambia). MCC’s satisfaction) in connection with the provision of water supply and This Annex I describes the Program Section 7.2 Conditions Precedent to sanitation services, and that such that MCC Funding will support in Entry into Force obligations have been satisfied (to Zambia during the Compact Term. Before this Compact enters into force: MCC’s satisfaction); and A. Program Overview (a) The Program Implementation (g) The Government and LWSC must Agreement must have been signed by have entered into an agreement (the 1. Background and Consultative Process the parties thereto; ‘‘LWSC Sustainability Agreement’’), in The MCC Board of Directors originally (b) The Government must have form and substance satisfactory to MCC, selected Zambia as eligible for MCC delivered to MCC: setting forth performance requirements assistance in December 2008, and has (i) A letter signed and dated by the or milestones designed to assure the re-selected Zambia as eligible for MCC Principal Representative of the continued technical efficiency and assistance in each subsequent year. In Government, or such other financial and commercial sustainability October 2009, the Government initiated representative of the Government as of LWSC, including, without limitation, a constraints analysis that identified may be duly authorized in a manner requirements or milestones related to three main binding constraints to acceptable to MCC, confirming that the LWSC’s corporate governance, Zambia’s economic growth: low quality Government has completed its domestic operational and financial performance of human capital; poor infrastructure requirements for this Compact to enter and improved customer service, which services; and coordination failures. To into force and that the other conditions agreement must also include semi- elicit feedback on these constraints, the precedent to entry into force in this annual benchmarks against which the Government undertook a targeted Section 7.2 have been met; Government and LWSC will measure consultative process in accordance with (ii) A signed legal opinion from the their respective progress in satisfying all applicable MCC policies and Attorney General of Zambia (or such such performance requirements or guidelines, which included over 500 other legal representative of the milestones and which must also provide representatives from the government,

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private sector and civil society, as well In addition to poor health, the degraded and the MCC Gender Integration as the donor community. Feedback from and inadequate condition of the Guidelines and Operational Procedures. these consultations resulted in a list of system’s core infrastructure also forces Any involuntary resettlement will be prioritized sectors deemed to be key to Lusaka’s residents and businesses to carried out in accordance with IFC Zambia’s economic development, waste substantial time and resources Performance Standard 5 on Land including ecotourism, hydropower, resolving water supply shortages and Acquisition and Involuntary roads, vocational and secondary delays, as well as flood losses, resulting Resettlement in a manner acceptable to education and water and sanitation, in further lost productivity. MCC. The Government will also ensure from which the Government developed The Program is designed to address that the Program complies with all and submitted six concept papers for this constraint to economic growth by national environmental laws and MCC consideration. supporting infrastructure investments regulations, licenses and permits, except After a thorough examination of the and continued institutional to the extent such compliance would be economic and operational feasibility of strengthening and reform in order to inconsistent with this Compact. the Government’s concept papers, MCC expand access to, and improve the Specifically, the Government will: (a) and the Government elected to focus reliability of, water supply and Cooperate with or complete, as the case solely on improvements to the water sanitation, and improve drainage may be, any ongoing environmental and supply, sanitation and drainage sectors services in select urban and peri-urban social impact assessments, or, if in the capital city of Lusaka, a key areas of the city of Lusaka. To this end, necessary, undertake and complete any constraint to economic growth for the the Program has been developed within additional environmental and social country. This examination included the broader framework of, and is assessments, environmental and social further consultations with national and consistent with, Zambia’s ‘‘National management plans, health and safety local government representatives, Urban Water Supply and Sanitation management plans, environmental and technical specialists, non-governmental Program,’’ and, as further described in social audits and resettlement action organizations and the donor paragraph 7 of Part B of this Annex I, plans required under the laws of community, including gender- complements the Government’s Zambia, the MCC Environmental responsive and socially inclusive longstanding and successful efforts to Guidelines, the IFC Performance consultations with community members reform the water and sanitation and Standards, this Compact, the Program in each of the 33 wards directly drainage sectors. These reform efforts Implementation Agreement, or any impacted by the Program. As with the have produced a variety of key other Supplemental Agreement, or as initial consultative process, this effort outcomes, which have laid the otherwise required by MCC, each in also was conducted in accordance with foundation for the Program, including, form and substance satisfactory to MCC; all applicable MCC policies and for example, the privatization of state- (b) ensure that Project-(and, as guidelines. owned enterprises to create commercial applicable Activity-) specific The city of Lusaka currently has a utilities throughout the country, as well environmental and social management population of over 1.8 million people, as the implementation of cost reflective plans and health and safety representing over 10 percent of tariffs, as facilitated through the creation management plans are developed and Zambia’s total population, and is of an autonomous water utility all relevant measures contained in such projected to have nearly five million regulator, the National Water Supply plans are integrated into project design, residents by 2035. This rapidly and Sanitation Council (‘‘NWASCO’’). the applicable procurement documents increasing population is served by a and associated finalized contracts, in water supply, sanitation and drainage 2. Project Objective each case, in form and substance system that was constructed in the The Program consists of the Lusaka satisfactory to MCC; and (c) implement 1960s and 1970s to serve a much water supply, sanitation and drainage to MCC’s satisfaction appropriate smaller population, and which has not Project, (the ‘‘LWSSD Project’’ or the environmental, social, health and safety benefited from major capital investment ‘‘Project’’), which in turn consists of the mitigation measures identified in such or proper maintenance in the Infrastructure Activity and the assessments or plans or developed to intervening years. As a result, the Institutional Strengthening Activity, as address environmental, social, health system’s core infrastructure assets are each is further described in this Annex and safety issues identified during outdated, dilapidated and unable to I. meet current or future demand. The Project Objective is to expand implementation. Unless MCC agrees Currently, only approximately 70 access to, and improve the reliability of, otherwise in writing, the Government percent of Lusaka residents have access water supply and sanitation, and will fund all necessary costs of to treated water supply, and only improve drainage services in select environmental and social mitigation approximately 65 percent have access to urban and peri-urban areas of the city of measures (including, without limitation, water-borne sanitation (either through a Lusaka in order to decrease the costs of resettlement) not specifically connection to the network or with septic incidence of water-borne and water- provided for, or that exceed the MCC tanks). Those without water-borne related diseases, generate time savings Funding specifically allocated for such sanitation typically rely on pit latrines, for households and businesses and costs, in the Detailed Financial Plan for most of which are not properly designed reduce non-revenue water in the water the Program. and therefore result in groundwater supply network. To maximize the positive social contamination, primarily impacting the impacts of the Program, address cross- shallow wells used for drinking water 3. Environmental and Social Safeguards cutting social and gender issues such as by the population without access to The Program will be implemented in human trafficking, child and forced treated water supply. All of these factors compliance with the MCC labor and HIV/AIDS, and ensure contribute to a high prevalence and Environmental Guidelines, the compliance with the MCC Gender incidence of water-borne disease, which International Finance Corporation’s Policy, the Government will: (a) Adhere is exacerbated by endemic flooding Social and Environmental Performance to the MCC Gender Integration resulting from insufficiently maintained Standards (the ‘‘IFC Performance Guidelines and Operational Procedures; and inadequate drainage infrastructure. Standards’’), the MCC Gender Policy (b) develop a comprehensive social and

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gender integration plan (‘‘Social and component of this Activity related to Kamanga, Kwamwena and Ndeke-Vorna Gender Integration Plan’’), in form and water supply and sanitation was Valley areas of Lusaka. Primary substance satisfactory to MCC and selected based on the results of infrastructure works to be supported by reflecting the MCC Social and Gender mutually agreed, comprehensive MCC Funding under this sub-activity Integration Plan Guidelines, which, at a investment master plans, while the are expected to include, without minimum, identifies approaches for component of this Activity related to limitation: regular, meaningful and inclusive drainage was selected based on the (1) The installation of new pipes; consultations with women and other results of priorities identified in the (2) The construction of new water vulnerable/underrepresented groups, ‘‘Study on Comprehensive Urban kiosks; consolidates the findings and Development Plan for the City of Lusaka (3) The construction of new recommendations of the Project-(and, as in the Republic of Zambia’’ funded by household connections and water applicable, Activity-) specific social and the Japanese International Cooperation meters; and gender analyses and social and gender- Agency (the ‘‘Comprehensive Urban (4) The drilling and equipping of focused sub-activities, and sets forth Development Plan’’). All components boreholes. strategies for incorporating findings of were also selected based on the results (iii) Chelston and Kaunda Square the social and gender analyses into final of mutually agreed, substantially Sewersheds Rehabilitation and designs, as appropriate; and (c) ensure, completed feasibility studies on a subset Expansion. This sub-activity is designed through monitoring and coordination of priority projects identified in the to expand the sanitation network in the during implementation, that final plans. Collectively, during the Compact targeted areas. Primary infrastructure Project (and Activity) designs, Term, the investments under this works to be supported by MCC Funding construction tender documents, other Activity are expected to increase under this sub-activity are expected to bidding documents and implementation available water supply from 225 to 240 include, without limitation: plans are consistent with and million liters per day and reduce NRW (1) The rehabilitation of the Chelston incorporate the outcomes of the social from 48 percent to an estimated 25 pump station, including the and gender analyses and the Social and percent. In addition, approximately rehabilitation or replacement of a Gender Integration Plan. 150,000 new people are expected to portion of the related force main; benefit from the water system (either (2) Upgrading and expanding the B. Lusaka Water Supply, Sanitation and through new household connections or Kaunda Square treatment ponds; Drainage Project kiosks) and the number of sanitation (3) Upgrading the Salama pump Set forth below is a description of the connections is expected to increase from station; LWSSD Project that the Government approximately 22,000 to approximately (4) The construction of new pump will implement, or cause to be 38,000. stations; implemented, using MCC Funding. Specifically, the Infrastructure (5) The rehabilitation or replacement of the Kaunda Square sewer interceptor; 1. Summary of Project and Activities Activity includes the following sub- activities: and The LWSSD Project is comprised of (i) Core Water Network Rehabilitation. (6) The extension of the Mtendere the following activities (each, an This sub-activity is designed to sewer system in order to expand ‘‘Activity’’): rehabilitate the core water supply household sanitation connections. • Investments in infrastructure network in Lusaka in order to upgrade (iv) Central Distribution Line development and rehabilitation, key treatment and distribution centers Rehabilitation and Expansion. This sub- including interventions to rehabilitate and distribution lines and to reduce activity is designed to expand the water the core water supply network, NRW. Primary infrastructure works to supply network serving the Ng’ombe, rehabilitate and expand select water be supported by MCC Funding under SOS East and Chipata areas of Lusaka. supply and sewage networks, reduce this sub-activity are expected to include, Primary infrastructure works to be Non-Revenue Water (‘‘NRW’’) and without limitation: supported by MCC Funding under this improve select drainage infrastructure (1) The rehabilitation of the Iolanda sub-activity are expected to include, (the ‘‘Infrastructure Activity’’). treatment plant and the Chilanga without limitation: • The provision of technical booster pump station; (1) The installation of new pipes; assistance to the Lusaka Water and (2) The rehabilitation of segments of (2) The construction of new water Sewerage Company (‘‘LWSC’’), the water transmission mains and the kiosks; and provincial utility responsible for the installation of segments of parallel (3) The construction of new management of Lusaka’s water and transmission mains; household connections and water sanitation assets and for the provision of (3) The rehabilitation of select meters. water and sanitation services, and the distribution centers and the (v) Bombay Drain Improvements. This Lusaka City Council (‘‘LCC’’), the construction of up to two new sub-activity is designed to reduce Government entity that manages the reservoirs; flooding through infrastructure city’s drainage infrastructure and (4) The supply and installation of improvements to the Bombay drain, services. This Activity will also include bulk and consumer water meters; which conveys the runoff from the support for comprehensive information, (5) The supply of leak repair materials majority of the downtown business education and communication and related tools and equipment, as well district areas of Lusaka. Primary campaigns, and a competitive grant as the provision of appropriate training; infrastructure works to be supported by program designed to spur innovation in and MCC Funding under this sub-activity the sectors (the ‘‘Institutional (6) The replacement of unsuitable and are expected to include, without Strengthening Activity’’). inefficient distribution network and limitation: (a) Infrastructure Activity. connection pipes. (1) The upsizing of the existing The Infrastructure Activity consists of (ii) Chelston Distribution Line primary outfall and main drain a series of infrastructure improvements Rehabilitation and Expansion. This sub- channels; to prioritized water supply, sanitation activity is designed to expand the water (2) The stabilization of the newly and drainage assets in Lusaka. Each supply network serving the Mtendere, upsized drainage channels; and

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(3) As needed, the installation of assets, to improve environmental procedures administered in a protective handrails. management and monitoring, to transparent manner in accordance with (b) Institutional Strengthening institutionalize and improve gender all relevant MCC policies and guidelines Activity. mainstreaming and to conduct effective (including the Program Guidelines, the The Institutional Strengthening outreach. MCC Funding for this sub- MCC Gender Integration Guidelines and Activity consists of a series of activity is intended to support: Operational Procedures and the IFC investments designed to increase the (1) The provision of technical Performance Standards). Prior to the ability of LWSC and LCC to maintain assistance to increase LCC’s capacity to Disbursement of any MCC Funding for and manage their respective plan and maintain Lusaka’s overall a Grant, MCC and the Government will infrastructure assets and to more drainage system, including, without agree on an operations manual effectively and equitably deliver limitation, the development of a including procedures to govern the services to Lusaka residents, as well as comprehensive operations and identification of potential Grant to support innovation in water, maintenance program, the completion of recipients, including, without sanitation and drainage-related an institutional needs assessment and limitation, appropriate eligibility and activities. support to implement the selection criteria and award procedures. Specifically, the Institutional recommendations thereof, and support The Parties will also agree on the Strengthening Activity includes the for a detailed ground water study to possibility of appointing an outside following sub-activities: guide future system-wide operation and grant program manager. Unless (i) Support to LWSC. This sub-activity maintenance decision-making and otherwise approved by MCC, Grants is focused on strengthening the capacity coherent, further infrastructure awarded under this component will not of LWSC to, without limitation, investments. be used to support infrastructure undertake comprehensive asset (2) The provision of technical investments. management planning and execution, assistance and, potentially, related carry out effective environmental equipment to strengthen LCC’s capacity 2. Beneficiaries management and monitoring, to ensure effective environmental The LWSSD Project is expected to institutionalize and improve gender monitoring and quality management of benefit approximately 1,240,000 mainstreaming and conduct effective drainage infrastructure and to integrate individuals over twenty years, which outreach to ensure pro-poor water environmental management into its represents the projected total population sanitation service delivery. MCC broader governance structure. in Lusaka expected to benefit from at Funding for this sub-activity is intended (3) The provision of technical least one of the Activities. Of these to support: assistance to better institutionalize and beneficiaries, approximately 73 percent (1) The provision of technical strengthen LCC’s capacity for gender are expected to be poor, which is assistance and related equipment to mainstreaming and to better understand defined as living on less than US$2.00 improve LWSC’s maintenance capacity and mitigate social and behavioral per day on a purchasing power parity and capability, including, without conditions that may contribute to basis. The main channels through which limitation, the creation of an asset degraded drainage infrastructure. these beneficiaries are expected to register and improvement of LWSC’s (4) Support for LCC-managed IEC benefit from the LWSSD Project are electronic data and management efforts to promote behavior change and through time savings, improved health systems, and the provision of care of physical assets to ensure the outcomes and a reduction in NRW. comprehensive training to improve realization of expected Project-related health benefits and the sustainability of 3. Environmental and Social Mitigation maintenance budgeting and forecasting, Measures as well as to determine the most the Compact’s infrastructure effective modality for carrying out investments. The Infrastructure Activity under the LWSC’s maintenance responsibilities. (iii) Innovation Grant Program for Pro- LWSSD Project has been classified as a (2) The provision of technical Poor Service Delivery. This sub-activity Category ‘‘B’’ project in accordance with assistance and, potentially, related will support a competitive grant and the MCC Environmental Guidelines and equipment to strengthen LWSC’s partnership program designed to the IFC Performance Standards. This capacity to ensure effective identify, and provide assistance to, categorization is based on a number of environmental monitoring, quality innovative partnership opportunities, risks and impacts, most of which are management and compliance. particularly through private sector site-specific, relatively minor and can be (3) The provision of technical engagement. This sub-activity is readily mitigated through site-specific assistance to better institutionalize and intended to increase and sustain the environmental and social management strengthen LWSC’s capacity for gender poor’s access to quality water and plans. Specifically, environmental and mainstreaming and social inclusion, and sanitation, improve water use, social impacts assessments completed to develop and implement policies that sanitation and hygiene practices among for the Infrastructure Activity have will increase LWSC’s capacity and the poor, strengthen tenure security and confirmed that the majority of the incentives to provide affordable services capacity for community-based planning, anticipated environmental and social to the peri-urban poor and vulnerable provide significant access by women impacts are positive in nature. However, populations. and vulnerable groups to Project these assessments also identified the (4) Support for LWSC-managed benefits and expand opportunities for following potential environmental- and information, education and entrepreneurship and income generating social-related challenges and impacts communications (‘‘IEC’’) efforts to activities related to water, sanitation that must be managed carefully through promote behavior change and care of and drainage. Activities will thus effective project design, implementation physical assets, including financial enhance the functioning of the systems, and monitoring: obligations. complementing and supplementing the • Involuntary Resettlement. The (ii) Support to LCC. This sub-activity Compact’s other investments. Grants Infrastructure Activity is anticipated to is focused on strengthening the capacity issued under this sub-activity will be result in the physical and/or economic of LCC to, without limitation, better awarded, implemented and managed displacement of approximately 1,800 manage and maintain its drainage pursuant to open, fair and competitive households due to Project-related land

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use and acquisition, although most of for projects that may result in adverse (‘‘USAID’’) throughout the development these households will only experience environmental and social impacts. of this Compact. Specifically, MCC and minor or temporary resettlement or However, unless otherwise approved by USAID have discussed potential, displacement. A resettlement policy MCC, Grants awarded under this complementary investments by USAID framework has already been developed component will not be used to support through its ‘‘Sustainable Water and for the Project and site-specific infrastructure-based investments, and as Sanitation in Africa Program,’’ which resettlement action plans will be such, are not expected to result in any may include focused capacity-building developed once project designs are significant environmental, health or for NWASCO that would support the complete. safety hazards. Nonetheless, prior to Compact objectives. • Community and Worker Health and disbursing any Grants under the 6. Sustainability Safety. In addition to the typical innovation Grant sub-activity, MCA– occupational health and safety risks for Zambia will be required to develop and The long-term sustainability of the construction workers, the major risks implement an environmental water and sanitation infrastructure involve ensuring the safety of residents management system that is consistent improvements funded under the in the areas where construction with the MCC Environmental Infrastructure Activity is expected to be activities will require the excavation of Guidelines and the IFC Performance reinforced by several factors and trenches, which may involve the use of Standards, as well as any applicable elements of the Project’s design. First, explosives, in densely populated areas. Government regulatory requirements. LWSC currently recovers 102 percent of Mitigation of these risks will be its operating costs, and the new water addressed through health and safety 4. Donor Coordination connections anticipated under the management plans, which will include MCC and the Government have Infrastructure Activity are expected to requirements for intense safety training actively communicated and coordinated increase the financial health of the and supervision and extensive ongoing with other donors throughout the utility. In addition, the Government, coordination with local community development of the Compact, and these with support from the World Bank, has organizations. efforts will continue during implemented the ‘‘Water Sector • Sludge Removal and Disposal. The implementation. The World Bank is one Performance Improvement Project,’’ upgrade and expansion of the sewerage of the main donors currently working in which has positively contributed to the network and the rehabilitation and Lusaka’s water sector. In fact, the financial performance of LWSC. Related expansion of the sewage stabilization Government’s ‘‘Water Sector to this, the Government and LWSC have ponds will generate additional sewage Performance Improvement Project,’’ agreed to enter into the LWSC sludge. LWSC’s ability to adequately which has been implemented with Sustainability Agreement as a condition monitor and manage, and properly assistance from the World Bank, has precedent to the entry into force of this dispose of, this additional sewage laid much of the sector reform Compact, which will set forth certain sludge will be strengthened through the groundwork that has led to improved operational and financial performance environmental management sub-activity performance by LWSC. milestones for LWSC and the sector. of the Institutional Strengthening In addition to the World Bank’s sector The continued effectiveness of, and Activity. reform efforts, and as noted elsewhere, compliance with, the LWSC • Water Quality and Effluent each component of the Infrastructure Sustainability Agreement, including Monitoring. In order to ensure the well- Activity related to water supply and satisfaction of the applicable being and environmental health of sanitation was selected based on the performance milestones, is a condition Lusaka residents it is critical that results of mutually agreed, precedent to the Disbursement of MCC drinking water and effluent from the comprehensive investment master plans Funding under the Program sewage ponds regularly meet national financed by MCC during development Implementation Agreement. Also, the standards. LWSC’s, and, as appropriate, of this Compact, while the component technical assistance provided under the LCC’s, ability to adequately monitor and of the Activity related to drainage was Institutional Strengthening Activity is manage water and effluent quality will selected based on the results of designed to help LWSC better plan for be strengthened through the priorities identified in the maintenance and asset renewal. Finally, environmental management sub-activity Comprehensive Urban Development as a condition to entry into force of this of the Institutional Strengthening Plan. MCC and the Government have Compact and as a condition to Activity. used these investment master plans to subsequent Disbursements of MCC • Waste collection and Management. stimulate interest in the water supply Funding, LWSC will be required to One of the principal issues affecting and sanitation sector among the donor devote a minimum of 50 percent of its effective drain operation is the blockage community, including by hosting a annual retained earnings to asset of culverts by accumulated solid waste. donor forum. While firm commitments renewal. In order to mitigate the risk associated have not yet been made for additional The long-term sustainability of the with underperforming drainage investments outlined in the investment drainage infrastructure improvements infrastructure due to inadequate solid master plans, the Government has been funded under the Infrastructure Activity waste management, the Institutional in dialogue with donors such as the is expected to be reinforced by several Strengthening Activity includes support European Investment Bank, the African factors and elements of the Project’s to enhance LCC’s drainage-related solid Development Bank and the Japanese design. First, the Program includes a waste and environmental management International Cooperation Agency with condition precedent requiring LCC to capabilities. regard to further investments in allocate a minimum of US$1.5 million The Institutional Strengthening Lusaka’s water supply and sanitation on an annual basis to be used Activity has been classified as a sector. exclusively for repair and maintenance Category ‘‘D’’ project, as it will involve, of drains, as further described in the among other components, an innovation 5. USAID Program Implementation Agreement. Grant sub-activity through which MCC MCC has been in a continuing Similarly, technical assistance provided Funding will be used to provide dialogue with the United States Agency to LCC under the Institutional assistance to selected Grant recipients for International Development Strengthening Activity is designed to

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improve its ability to manage and by the Government and LWSC as a The Government will ensure that MCA– maintain its assets. condition precedent to the entry into Zambia takes all appropriate actions to In addition, sustainability will be force of this Compact. implement the Program, including the addressed across the entire Program In addition, in light of concerns about exercise and performance of the rights through the IEC activities under the the ability of poor households to afford and responsibilities designated to it by Institutional Strengthening Activity. the household sanitation connections the Government pursuant to this These include the IEC focus on constructed under the Compact, the Compact and the Program maintenance and care of community- Government is required to deliver the Implementation Agreement. Without level infrastructure and payment for GRZ Sanitation Connection Action Plan limiting the foregoing, the Government services, and the focus on health and as a condition precedent to the entry will also ensure that MCA–Zambia has hygiene-related knowledge and into force of this Compact, and full decision-making autonomy, behavior, both of which are critical to satisfactory implementation of the GRZ including, without limitation, the ensuring the sustainability of the Sanitation Connection Action Plan, ability, without consultation with, or Program’s infrastructure investments including the commitment of the consent or approval of, any other and benefits over time. appropriate funding by the Government, party, to: (i) Enter into contracts, grants, 7. Policy, Legal and Regulatory Reforms is a condition precedent to subsequent cooperative agreements or any other Disbursements of MCC Funding, as agreement in its own name; (ii) sue and The Government has been pursuing a further described in the Program be sued; (iii) establish an account in a reform agenda of privatization and Implementation Agreement. The GRZ financial institution in the name of deregulation of state-owned enterprises Sanitation Connection Action Plan must MCA–Zambia and hold MCC Funding since the advent of a new democratic include, without limitation, a in that account; (iv) expend MCC government in 1991. Following this methodology for determining who Funding; (v) engage a fiscal agent who trend, the Government developed its qualifies for such assistance and a plan will act on behalf of MCA–Zambia on first comprehensive National Water for administering such assistance and terms acceptable to MCC; (vi) engage Policy in 1994. The policy was followed ensuring that such beneficiaries obtain one or more procurement agents who by the enactment of the Water Supply household connections. will act on behalf of MCA–Zambia, on and Sanitation Act in 1997, which led terms acceptable to MCC, to manage the to the creation of NWASCO. To C. Implementation Framework acquisition of the goods, works and harmonize various water sector issues, 1. Overview services required by MCA–Zambia to the Government updated its National implement the activities funded by this Water Policy in 2010, and also enacted The implementation framework and Compact; and (vii) competitively engage the Water Resources Management Act in the plan for ensuring adequate one or more auditors to conduct audits 2011. Key outcomes of these governance, oversight, management, of its accounts. The Government will developments have been the creation of monitoring and evaluation and fiscal take all the necessary actions to manage commercial utilities throughout the accountability for the use of MCC and operate MCA–Zambia in country, including LWSC, a move Funding are summarized below. MCC accordance with the applicable towards full cost recovery tariffs, better and the Government will enter into the conditions precedent to the water resource management and more Program Implementation Agreement Disbursement of Compact independent regulation of the water and any other agreements in furtherance Implementation Funding set forth in supply and sanitation utilities. of this Compact, all of which, together Annex IV to this Compact. By embracing a reform agenda, the with this Compact, set out certain rights, In accordance with the laws of Government has invested political responsibilities, duties and other terms Zambia, the Minister of Finance and the capital to build a strong foundation for relating to the implementation of the Secretary to the Treasury, Ministry of the water sector in order to expand and Program. Finance and National Planning, will serve the needs of its population. As a 2. MCC serve as the members of MCA–Zambia, result of the Government’s policy reform but will not have any control over, or efforts and the creation of appropriate MCC will take all appropriate actions oversight of, the administration or regulatory and institutional foundations, to carry out its responsibilities in management of MCA–Zambia in their LWSC and other commercial utilities connection with this Compact and the capacity as members of MCA–Zambia. are starting to perform better, and the Program Implementation Agreement, Rather, MCA–Zambia will be sector is being more effectively including the exercise of its approval administered and managed by a board of regulated. Where LWSC and other rights in connection with the directors (the ‘‘Board’’) and a commercial utilities need assistance implementation of the Program. management unit (the ‘‘Management now is in the area of new capital to 3. Accountable Entity Unit’’). In addition, MCA–Zambia will expand their networks and rehabilitate be supported by one or more old infrastructure. The Government has established stakeholders committees (each, a Given the significant policy reform MCA–Zambia as a company limited by ‘‘Stakeholders Committee’’) to continue already undertaken by the Government guarantee under the laws of Zambia. In the consultative process during in this area, including through accordance with Section 3.2(b) of this implementation of the Program. continued, sustained support from other Compact, MCA–Zambia will act on the The governance of MCA–Zambia is donors, such as the World Bank, no Government’s behalf to implement the set forth in more detail in the MCA– major specific sector policy reforms are Program and to exercise and perform the Zambia Articles of Association (the included under the Compact. However, Government’s rights and responsibilities ‘‘Bylaws’’), the Program Implementation MCC will monitor the Government’s with respect to the oversight, Agreement and the Governance and LWSC’s compliance with the reform management and implementation of the Guidelines, which, collectively, set forth requirements, performance milestones Program, including, without limitation, the responsibilities of the Board, the and related best practices required managing the implementation of the Management Unit and the Stakeholders under the LWSC Sustainability Project and its Activities, allocating Committee(s). Agreement, which must be entered into resources and managing procurements. (a) Board.

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(i) Composition. The Board is initially Government, and will be accountable Entity and other appropriate terms are comprised of the following nine for the successful execution of the set forth in an agreement, in form and members, including six representatives Project and each Activity. MCA–Zambia substance satisfactory to MCC (each an from Government entities and three will be subject to Government audit ‘‘Implementing Entity Agreement’’). representatives from civil society and requirements. As a recipient of MCC private sector organizations: (1) The Funding, MCA–Zambia will also be 5. Fiscal Agent Secretary to the Treasury, Ministry of subject to MCC audit requirements. Unless MCC agrees otherwise in Finance and National Planning; (2) the (c) Stakeholders’ Committee(s). writing, the Government, through MCA- (i) Composition. The Stakeholders Permanent Secretary, Ministry of Zambia, will appoint a fiscal agent (the Committee (or, if appropriate and Finance and National Planning; (3) the ‘‘Fiscal Agent’’), which will be approved by MCC, committees) will Permanent Secretary, Ministry of Local responsible for assisting the provide input to the Board and the Government and Housing; (4) the Chair Government with its fiscal management of LWSC’s Board of Directors; (5) the Management Unit on matters that relate to the Program, promoting transparency and assuring appropriate fiscal Town Clerk, LCC; (6) the Chair of the accountability of MCC Funding. The Board of Directors for the Zambia and ongoing consultation. The size, composition and manner of selection of roles and responsibilities of the Fiscal Environmental Management Agency; (7) Agent will be set forth in the Program the Executive Director, Non- members of the Stakeholders Implementation Agreement and such Governmental Organization Committee(s) are subject to ongoing agreement as MCA-Zambia enters into Coordinating Committee; (8) the discussions between the Government with the Fiscal Agent, which agreement Executive Director, Civil Society for and MCC, and will be dictated by the will be in form and substance Poverty Reduction; and (9) a project areas of the Program. satisfactory to MCC. representative from the private sector. Membership will at least reflect the non- The Chief Executive Officer (‘‘CEO’’) of governmental organizations, private 6. Procurement Agent MCA–Zambia and an MCC sector, civil society and local and representative will serve as observers. regional governments that were Unless MCC agrees otherwise in (ii) Roles and Responsibilities. The consulted by the Government in writing, the Government, through MCA- Board will be responsible for overseeing developing its proposal for the Compact. Zambia, will appoint a procurement the implementation of the Program and (ii) Roles and Responsibilities. agent (the ‘‘Procurement Agent’’) to will have final decision-making Consistent with the Governance carry out and certify specified authority over the implementation of Guidelines, the Stakeholders procurement activities in furtherance of the Program. The Board will hold Committee(s) will be responsible for this Compact. The roles and regular meetings, at a minimum once continuing the consultative process responsibilities of the Procurement per quarter. The specific roles of the throughout implementation of the Agent will be set forth in the Program members and observers are set forth in Program. While the Stakeholders Implementation Agreement and such the Bylaws and the Governance Committee(s) will not have any binding agreement as MCA-Zambia enters into Guidelines. decision-making authority, it will be with the Procurement Agent, which (b) Management Unit. responsible for, among other things, agreement will be in form and substance (i) Composition. The Management reviewing, at the request of the Board or satisfactory to MCC. The Procurement Unit will initially include the following the Management Unit, certain reports, Agent will adhere to the procurement key officers: (1) The CEO; (2) the Deputy agreements and documents related to standards set forth in the MCC Program CEO Operations; (3) the Deputy CEO the implementation of the Program in Procurement Guidelines and ensure Administration; (4) the Finance and order to provide advice and input to procurements are consistent with the Administration Director; (5) the MCA–Zambia regarding the procurement plan adopted by the Procurement Director; (6) the implementation of the Program. Government pursuant to the Program Infrastructure Development Director; (7) 4. Implementing Entities Implementation Agreement, unless MCC the Environment and Social agrees otherwise in writing. Performance Director; (8) the Social and Subject to the terms and conditions of Gender Assessment Director; (9) the this Compact, the Program Annex II Multi-Year Financial Plan Monitoring and Evaluation and Implementation Agreement and any Summary Economics Director; (10) the other related agreement entered into in Communications and Outreach Director; connection with this Compact, MCC and This Annex II summarizes the Multi- (11) the Information Technology the Government may identify certain Year Financial Plan for the Program. Director; (12) the Legal Director; (13) the entities or institutions to receive A multi-year financial plan summary Internal Auditor; and (14) Grants technical assistance or other support (‘‘Multi-Year Financial Plan Summary’’) Director. These key officers will be under this Compact, or to assist MCA- is attached hereto as Exhibit A to this supported by appropriate additional Zambia with the implementation of the Annex II. By such time as specified in staff to enable the Management Unit to Project or any Activity (or any the Program Implementation execute its roles and responsibilities, in component thereof) in furtherance of Agreement, the Government will adopt, accordance with any applicable staffing this Compact (each, an ‘‘Implementing subject to MCC approval, a multi-year plan approved by MCC. Entity’’). The identification of any financial plan that includes, in addition (ii) Roles and Responsibilities. The Implementing Entity will be subject to to the multi-year summary of estimated Management Unit will be based in review and approval by MCC. As of the MCC Funding and the Government’s Lusaka, Zambia, and will be responsible date of this Compact, the Government contribution of funds and resources, the for managing the day-to-day and MCC have identified LWSC and annual and quarterly funding implementation of the Program, with LCC as Implementing Entities with requirements for the Program (including oversight from the Board. The respect to the Project. The Government administrative costs) and for the Project, Management Unit will serve as the will ensure that the roles and projected both on a commitment and principal link between MCC and the responsibilities of each Implementing cash requirement basis.

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EXHIBIT A—MULTI-YEAR FINANCIAL PLAN SUMMARY

(US$) Component CIF1 Year 1 Year 2 Year 3 Year 4 Year 5 Total

1. Lusaka Water Supply, Sanitation, and Drainage Project (A) Infrastructure Activity ...... (B) Institutional Strengthening Activity ......

Subtotal ...... 10,561,039 21,307,520 67,592,363 84,753,880 80,808,204 45,524,334 310,547,340

2. Monitoring and Evaluation (M&E) Monitoring and Evaluation ......

Subtotal ...... 58,000 1,627,000 1,852,000 2,052,000 177,000 75,000 5,841,000

3. Program Administration and Audit (A) Program Management and Oversight ...... (B) Fiscal Agent/Procurement Agent ...... (C) Audits ......

Subtotal ...... 4,669,900 7,436,000 6,651,000 6,518,200 6,506,700 6,587,500 38,369,300

Grand Total...... 15,288,939 30,370,520 76,095,363 93,324,080 87,491,904 52,186,834 354,757,640 1 Pursuant to Section 2.2(b) of the Compact, MCC will directly administer and manage a portion of the Compact Implementation Funding.

Annex III Description of Monitoring with MCC approval without requiring rigorous evaluation of the outcomes and and Evaluation Plan an amendment to this Annex III. impact of the Program (‘‘Evaluation Component’’). Information regarding the 1. Overview This Annex III generally describes the Program’s performance, including the components of the monitoring and MCC and the Government will M&E Plan, and any amendments or evaluation plan (‘‘M&E Plan’’) for the formulate and agree to, and the modifications thereto, as well as Program. The actual content and form of Government will implement or cause to progress and other reports, will be made the M&E Plan will be agreed to by MCC be implemented, an M&E Plan that publicly available on the Web site of and the Government in accordance with specifies (a) how progress toward the MCA–Zambia and elsewhere. the MCC Policy for Monitoring and Compact Goal and the Project Objective Evaluation of Compacts and Threshold will be monitored, (‘‘Monitoring 2. Program Logic Programs posted from time to time on Component’’), (b) a process and timeline The M&E Plan will be built on the the MCC Web site (the ‘‘MCC Policy for for the monitoring of planned, ongoing, logic model below, which illustrates Monitoring and Evaluation of Compacts or completed Activities to determine how the Program, the Project and the and Threshold Programs’’). The M&E their efficiency and effectiveness, and Activities contribute to the Compact Plan may be modified from time to time (c) a methodology for assessment and Goal and the Project Objective.

3. Monitoring Component definitions of the Indicators, (c) the Further, the Monitoring Component To monitor progress toward the sources and methods for data collection, will track changes in the selected achievement of the impact and (d) the frequency for data collection, (e) Indicators for measuring progress outcomes, the Monitoring Component of the party or parties responsible, and (f) towards the achievement of the the M&E Plan will identify (a) the the timeline for reporting on each objectives during the Compact Term. Indicators (as defined below), (b) the Indicator to MCC. The M&E Plan will establish baselines

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that measure the situation prior to a (‘‘Indicators’’). Each Indicator will have (i) Compact Indicators. development intervention, against benchmarks that specify the expected (1) Goal. The M&E Plan will contain which progress can be assessed or value and the expected time by which the following Indicator related to the comparisons made (each a, ‘‘Baseline’’). that result will be achieved (‘‘Target’’). Compact Goal. Although the Project will The Government will collect Baselines All Indicators will be disaggregated by contribute to this goal, the results are on the selected Indicators or verify gender, income level and age, and attributable to many factors in the already collected Baselines where beneficiary types to the extent economy: applicable and as set forth in the M&E practicable. Subject to prior written (A) Increased incomes of households Plan. approval from MCC, the Government in Project areas. (a) Indicators. The M&E Plan will may add Indicators or refine the (2) Other Indicators. The M&E Plan measure the results of the Program using definitions and Targets of existing will contain the Indicators listed in the quantitative, objective and reliable data Indicators. following tables.

Baseline End of Result Indicator Definition value compact

Cross-Cutting Outcomes

Improved household health ..... Incidence of water-borne dis- Number of cases of infectious diarrhea and cholera per 138 per 1,000 32 per 1,000 eases. 1,000 population. Decreased economic impact of Days of work missed due to Average Number of days of work missed per beneficiary, per TBD 18% reduction water-related diseases. illness. year (disaggregated by sex). Days of school missed due to Average Number of days of school missed per school age TBD 20% reduction illness. beneficiary, per year (disaggregated by sex).

Water Supply Infrastructure Rehabilitation and Expansion

Improved water service cov- Access to improved water Number of new household connections to the water network 0 16,790 erage. supply. made possible through the Compact. Improved quality of service de- Continuity of service ...... Average hours of service per day for water supply ...... 17 24 livery. Volume of water produced ..... Total volume of water produced in cubic meters per day for 225,000 240,000 the service area. Reduced water losses ...... Non-revenue water ...... The difference between water supplied and water sold (i.e. 48% 25% volume of water ‘‘lost’’) expressed as a percentage of water supplied.. Time savings for households ... Time spent fetching water ...... Average time spent by household members to fetch water in 16 9.5 the past week (hours) (disaggregated by sex). Improved water supply infra- Length of the water distribu- Total length of the distribution network in km ...... 1,372 1,547 structure. tion network (km). Water points constructed...... The number of non-networked, stand-alone water supply 532 596 systems constructed (kiosks).

Sanitation Infrastructure Rehabilitation and Expansion

Improved sanitation coverage Access to improved sanitation Number of new household connections to sewage network 0 13,147 made possible through the Compact. Improved sanitation infrastruc- Length of the sewer system ... Total length of the sewerage network in km ...... 408 490 ture.

Drainage Infrastructure Rehabilitation

Improved drainage system ...... Length of the drainage system Total km of drainage channel rehabilitation funded by the 0 30 Compact.

(b) Data Collection and Reporting. The timely as resources will allow. The Program, and will be aligned with M&E Plan will establish guidelines for objective of any data quality review will existing MCC systems, other service data collection and reporting, and be to verify the quality and the providers, and ministries. identify the responsible parties. consistency of performance data across (e) Role of MCA-Zambia. The Compliance with data collection and different implementation units and monitoring and evaluation of this reporting timelines will be conditions reporting institutions. Such data quality Compact spans one Project and will for Disbursements for the relevant reviews also will serve to identify where involve governmental, Activities as set forth in the Program those levels of quality are not possible, Implementation Agreement. The M&E given the realities of data collection. nongovernmental, and private sector Plan will specify the data collection (d) Management Information System. institutions. In accordance with the methodologies, procedures, and analysis The M&E Plan will describe the designation contemplated by Section required for reporting on results at all information system that will be used to 3.2(b) of this Compact, MCA-Zambia is levels. The M&E Plan will describe any collect data, store, process and deliver responsible for implementation of the interim MCC approvals for data information to relevant stakeholders in M&E Plan. MCA-Zambia will oversee all collection, analysis, and reporting plans. such a way that the Program Compact-related monitoring and (c) Data Quality Reviews. As information collected and verified evaluation activities conducted for the determined in the M&E Plan or as pursuant to the M&E Plan is at all times Project, ensuring that data from all otherwise requested by MCC, the quality accessible and useful to those who wish implementing entities is consistent, of the data gathered through the M&E to use it. The system development will accurately reported and aggregated into Plan will be reviewed to ensure that take into consideration the requirement regular Compact performance reports as data reported are as valid, reliable, and and data needs of the components of the described in the M&E Plan.

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4. Evaluation Component findings. They must at a minimum (i) 6. Approval and Implementation of the The Evaluation Component of the evaluate the efficiency and effectiveness M&E Plan M&E Plan will contain three types of of the Activities; (ii) determine if and The approval and implementation of evaluations: (i) impact evaluations; (ii) analyze the reasons why the Compact the M&E Plan, as amended from time to project performance evaluations; and Goal and the Project Objective, time, will be in accordance with the (iii) special studies. The Evaluation outcome(s) and output(s) were or were Program Implementation Agreement, Component of the M&E Plan will not achieved; (iii) identify positive and any other relevant Supplemental describe the purpose of the evaluation, negative unintended results of the Agreement and the MCC Policy for methodology, timeline, required MCC Program; (iv) provide lessons learned Monitoring and Evaluation of Compacts approvals, and the process for collection that may be applied to similar projects; and Threshold Programs. and (v) assess the likelihood that results and analysis of data for each evaluation. Annex IV Conditions Precedent to The results of all evaluations will be will be sustained over time. (i) Special Studies. The M&E Plan will Disbursement of Compact made publicly available in accordance Implementation Funding with the MCC Policy for Monitoring and include a description of the methods to Evaluation of Compacts and Threshold be used for special studies, as necessary, This Annex IV sets forth the Programs. funded through this Compact or by conditions precedent applicable to Possible evaluations include: MCC. Plans for conducting the special Disbursements of Compact • Infrastructure Activity. An studies will be determined jointly Implementation Funding other than evaluation of this activity would focus between the Government and MCC Disbursements for MCC CIF Contracted on household level impacts including before the approval of the M&E Plan. Activities (each a ‘‘CIF Disbursement’’). health outcomes and expenditures; time The M&E Plan will identify and make Capitalized terms used in this Annex IV savings; property values; and the provision for any other special studies, and not defined in this Compact will availability and reliability of water, ad hoc evaluations, and research that have the respective meanings assigned sanitation, and drainage services. may be needed as part of the monitoring thereto in the Program Implementation Although a specific methodology has and evaluating of this Compact. Either Agreement. Upon execution of the not been identified, due to the high MCC or the Government may request Program Implementation Agreement, potential for learning from these special studies or ad hoc evaluations of each CIF Disbursement will be subject investments, MCC and MCA-Zambia the Project, the Activities, or the to the terms of the Program will work together to develop as Program as a whole prior to the Implementation Agreement. rigorous an evaluation of the expiration of the Compact Term. When 1. Conditions Precedent to Initial CIF infrastructure investments as possible. the Government engages an evaluator, Disbursement • Institutional Strengthening the engagement will be subject to the Activity. The Institutional prior written approval of MCC. Contract Each of the following must have Strengthening Activities would likely terms must ensure non-biased results occurred or been satisfied prior to the undergo performance evaluations aimed and the publication of results. initial CIF Disbursement: (a) The Government (or MCA-Zambia) at assessing their effectiveness and (c) Request for Ad Hoc Evaluation or contribution to the overall sustainability has delivered to MCC: Special Study. If the Government (i) an interim fiscal accountability of the infrastructure investments. requires an ad hoc independent • Innovation Grant Program. The plan acceptable to MCC; and evaluation or special study at the (ii) a CIF procurement plan acceptable innovation grant (IG) program under the request of the Government for any to MCC. Institutional Strengthening Activity will reason, including for the purpose of seek opportunities to rigorously contesting an MCC determination with 2. Conditions Precedent to all CIF evaluate the activities that are proposed respect to the Project or any Activity or Disbursements (Including Initial CIF for funding. To the extent the IG to seek funding from other donors, no Disbursement) program supports innovative ideas in MCC Funding resources may be applied Each of the following must have the realm of water, sanitation, and to such evaluation or special study occurred or been satisfied prior to each drainage services, rigorous evaluations without MCC’s prior written approval. CIF Disbursement: would serve an accountability function (a) The Government (or MCA-Zambia) 5. Other Components of the M&E Plan and, if possible, a learning function. has delivered to MCC the following (a) Impact Evaluation. The M&E Plan In addition to the monitoring and documents, in form and substance will include a description of the evaluation components, the M&E Plan satisfactory to MCC: methods to be used for impact will include the following components (i) A completed Disbursement evaluations and plans for integrating the for the Program, the Project and the Request, together with the applicable evaluation method into Project design. Activities, including, where Periodic Reports, for the applicable Final impact evaluation strategies are to appropriate, roles and responsibilities of Disbursement Period, all in accordance be included in the M&E Plan. the relevant parties and providers: with the Reporting Guidelines; (b) Final Evaluation. The M&E Plan (ii) A certificate of MCA-Zambia, (a) Costs. A detailed cost estimate for will make provision for final Project- dated as of the date of the Disbursement all components of the M&E Plan; and level evaluations (‘‘Final Evaluations’’). Request, in such form as provided by With the prior written approval of MCC, (b) Assumptions and Risks. Any MCC; the Government will engage assumption or risk external to the (iii) If a Fiscal Agent has been independent evaluators to conduct the Program that underlies the engaged, a Fiscal Agent Disbursement Final Evaluations at the end of the accomplishment of the Project Objective Certificate; and Project. The Final Evaluations will and Activity outcomes and outputs. (iv) If a Procurement Agent has been review progress during Compact However, such assumptions and risks engaged, a Procurement Agent implementation and provide a will not excuse any Party’s performance Disbursement Certificate. qualitative context for interpreting unless otherwise expressly agreed to in (b) If any proceeds of the CIF monitoring data and impact evaluation writing by the other Party. Disbursement are to be deposited in a

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bank account, MCC has received satisfactory to MCC; (ii) the Compact Goal has the meaning satisfactory evidence that (i) the Bank Implementation Plan Documents and provided in Section 1.1. Agreement has been executed, and (ii) Fiscal Accountability Plan are current Compact Implementation Funding the Permitted Accounts have been and updated and are in form and has the meaning provided in Section established. substance satisfactory to MCC, and there 2.2(a). (c) Appointment of an entity or has been progress satisfactory to MCC Compact Records has the meaning individual to provide fiscal agent on the components of the provided in Section 3.7(a). services, as approved by MCC, until Implementation Plan for any relevant Compact Term has the meaning such time as the Government provides Projects or Activities related to such CIF provided in Section 7.4. to MCC a true and complete copy of a Disbursement; (iii) there has been Comprehensive Urban Development Fiscal Agent Agreement, duly executed progress satisfactory to MCC on the Plan has the meaning provided in and in full force and effect, and the M&E Plan and Social and Gender paragraph 1(a) of Part B of Annex I. Fiscal Agent engaged thereby is Integration Plan for the Program or Covered Provider has the meaning mobilized. relevant Project or Activity and provided in Section 3.7(c). (d) Appointment of an entity or substantial compliance with the Disbursement has the meaning individual to provide procurement requirements of the M&E Plan and provided in Section 2.4. agent services, as approved by MCC, Social and Gender Integration Plan Eligible Entities has the meaning until such time as the Government (including the targets set forth therein provided in Annex VI. provides to MCC a true and complete and any applicable reporting Eligible Individuals has the meaning copy of the Procurement Agent requirements set forth therein for the provided in to Annex VI. Agreement, duly executed and in full relevant Disbursement Period); (iv) there Evaluation Component has the force and effect, and the Procurement has been no material negative finding in meaning provided in paragraph 1 of Agent engaged thereby is mobilized. any financial audit report delivered in Annex III. (e) MCC is satisfied, in its sole accordance with this Compact and the Excess CIF Amount has the meaning discretion, that (i) the activities being Audit Plan, for the prior two quarters (or provided in Section 2.2(d). funded with such CIF Disbursement are such other period as the Audit Plan may Final Evaluations has the meaning necessary, advisable or otherwise require); (v) MCC does not have grounds provided in paragraph 4(b) of Annex III. consistent with the goal of facilitating for concluding that any matter certified Fiscal Agent has the meaning the implementation of the Compact and to it in the related MCA Disbursement provided in paragraph 5 of Part C of will not violate any applicable law or Certificate, the Fiscal Agent Annex I. regulation; (ii) no material default or Disbursement Certificate or the Governance Guidelines means MCC’s breach of any covenant, obligation or Procurement Agent Disbursement Guidelines for Accountable Entities and responsibility by the Government, MCA- Certificate is not as certified; and (vi) if Implementation Structures, as such may Zambia or any Government entity has any of the officers or key staff of MCA- be posted on MCC’s Web site from time occurred and is continuing under this Zambia have been removed or resigned to time. Compact or any other Supplemental Government has the meaning Agreement; (iii) there has been no and the position remains vacant, MCA- Zambia is actively engaged in recruiting provided in the Preamble. violation of, and the use of requested Grant has the meaning provided in funds for the purposes requested will a replacement. (g) MCC has not determined, in its Section 3.6(b). not violate, the limitations on use or sole discretion, that an act, omission, GRZ Sanitation Connection Action treatment of MCC Funding set forth in Plan has the meaning provided in Section 2.7 of this Compact or in any condition, or event has occurred that would be the basis for MCC to suspend Section 7.2(d). applicable law or regulation; (iv) any IEC has the meaning provided in or terminate, in whole or in part, the Taxes paid with MCC Funding through paragraph 1(b)(i)(4) of Part B of Annex Compact or MCC Funding in accordance the date 90 days prior to the start of the I. with Section 5.1 of this Compact. applicable Disbursement Period have IFC Performance Standards has the been reimbursed by the Government in Annex V Definitions meaning provided in paragraph 3 of Part full in accordance with Section 2.8(c) of Activity has the meaning provided in A of Annex I. this Compact; and (v) the Government paragraph 1 of Part B of Annex I. Implementation Letter has the has satisfied all of its payment Additional Representative has the meaning provided in Section 3.5. obligations, including any insurance, meaning provided in Section 4.2. Implementing Entity has the meaning indemnification, tax payments or other Applicable Acts has the meaning provided in paragraph 4 of Part C of obligations, and contributed all provided in Annex VI. Annex I. resources required from it, under this Audit Guidelines has the meaning Implementing Entity Agreement has Compact and any other Supplemental provided in Section 3.8(a). the meaning provided in paragraph 4 of Agreement. Baseline has the meaning provided in Part C of Annex I. (f) For any CIF Disbursement paragraph 3 of Annex III. Indicators has the meaning provided occurring concurrently with or after the Board has the meaning provided in in paragraph 3(a) of Annex III. Initial Disbursement of Program paragraph 3 of Part C of Annex I. Infrastructure Activity has the Funding in accordance with Section 3.3 Bylaws has the meaning provided in meaning provided in paragraph 1 of Part and 3.4 of the Program Implementation paragraph 3 of Part C of Annex I. B of Annex I. Agreement: MCC is satisfied, in its sole CEO has the meaning provided in Inspector General has the meaning discretion, that (i) MCC has received paragraph 3(a)(i) of Part C of Annex I. provided in Section 3.7(d). copies of any reports due from any CIF Disbursement has the meaning Institutional Strengthening Activity technical consultants (including provided in Annex IV. has the meaning provided in paragraph environmental auditors engaged by Compact has the meaning provided in 1 of Part B of Annex I. MCA-Zambia) for any Activity since the the Preamble. Intellectual Property means all previous Disbursement Request, and all Compact Contract has the meaning registered and unregistered trademarks, such reports are in form and substance provided in Annex VI. service marks, logos, names, trade

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names and all other trademark rights; all as such may be posted on MCC’s Web Social and Gender Integration Plan registered and unregistered copyrights; site, or otherwise provided by MCC, has the meaning provided in paragraph all patents, inventions, shop rights, from time to time. 3 of Part A of Annex I. know how, trade secrets, designs, MCC Web site has the meaning Stakeholders Committee has the drawings, art work, plans, prints, provided in Section 2.7. meaning provided in paragraph 3 of Part manuals, computer files, computer Monitoring Component has the C of Annex I. software, hard copy files, catalogues, meaning provided in paragraph 1 of Supplemental Agreement means any specifications, and other proprietary Annex III. agreement between (a) the Government technology and similar information; and Multi-Year Financial Plan Summary (or any Government affiliate, including all registrations for, and applications for has the meaning provided in paragraph MCA-Zambia) and MCC (including, but registration of, any of the foregoing, that 1 of Annex II. not limited to, the Program are financed, in whole or in part, using NWASCO has the meaning provided Implementation Agreement) or (b) MCC MCC Funding. in paragraph 1 of Part A of Annex I. and/or the Government (or any LPO has the meaning provided in NRW has the meaning provided in Government affiliate, including MCA- Schedule D to Annex VI. paragraph 1 of Part B of Annex I. Zambia), on the one hand, and any third LCC has the meaning provided in Party and Parties have the meaning party, on the other hand, including any paragraph 1 of Part B of Annex I. provided in the Preamble. of the Providers, in each case, setting LWSC has the meaning provided in Permitted Account has the meaning forth the details of any funding, paragraph 1 of Part B of Annex I. provided in Section 2.4. implementing or other arrangements in LWSC’s Retained Earnings means, as Principal Representative has the furtherance of this Compact. calculated at the end of any fiscal year, meaning provided in Section 4.2. Statutory Instrument has the meaning the Retained Earnings at the beginning Procurement Agent has the meaning provided in Annex VI. of such fiscal year plus the portion of provided in paragraph 6 of Part C of Target has the meaning provided in net income retained after payment of Annex I. paragraph 3(a) of Annex III. any dividends. Program has the meaning provided in Taxes has the meaning provided in LWSC Sustainability Agreement has the Preamble. Section 2.8(a). the meaning provided in Section 7.2(g). Program Assets means any assets, Third Schedule has the meaning LWSSD Project has the meaning goods or property (real, tangible or provided in Schedule E to Annex VI. provided in paragraph 2 of Part A of intangible) purchased or financed in United States Dollars or US$ means Annex I. whole or in part (directly or indirectly) the lawful currency of the United States M&E Plan has the meaning provided by MCC Funding. of America. in Annex III. Program Funding has the meaning USAID has the meaning provided in Management Unit has the meaning provided in Section 2.1. paragraph 5 of Part B of Annex I. provided in paragraph 3 of Part C of Program Guidelines means VAT has the meaning provided in Annex I. collectively the Audit Guidelines, the Schedule D to Annex VI. MCA Act has the meaning provided in MCC Environmental Guidelines, the Vendor has the meaning provided in Section 2.2(a). Annex VI. MCA-Zambia has the meaning MCC Gender Policy, the Governance Guidelines, the MCC Program Zambia has the meaning provided in provided in Section 3.2(b). the Preamble. MCC has the meaning provided in the Procurement Guidelines, the Reporting Guidelines, the MCC Policy for ZRA has the meaning provided in Preamble. Schedule D to Annex VI. MCC Contracted CIF Activities has the Monitoring and Evaluation of Compacts meaning provided in Section 2.2(b). and Threshold Programs, the MCC Cost Annex VI Tax Schedules Principles for Government Affiliates MCC Environmental Guidelines has 1. Introduction the meaning provided in Section 2.7(c). Involved in Compact Implementation MCC Funding has the meaning (including any successor to any of the In accordance with, and without provided in Section 2.3. foregoing) and any other guidelines, limiting the generality of, Section 2.8 of MCC Gender Policy means the MCC policies or guidance papers relating to the Compact, the Government will Gender Policy (including any guidance the administration of MCC-funded ensure that all MCC Funding is free documents issued in connection with compact programs, and, in each case, as from the payment or imposition of any the guidelines) posted from time to time from time to time published on the MCC existing or future Taxes in or of Zambia. on the MCC Web site or otherwise made Web site. This will include any interest or available to the Government. Program Implementation Agreement earnings on MCC Funding, and any MCC Gender Integration Guidelines has the meaning provided in Section MCC Funding disbursed, directly or and Operational Procedures means 3.1. indirectly, to or for: (i) MCA-Zambia; (ii) MCC’s Gender Integration Guidelines Project means the LWSSD Project. any goods, works, services, technology and Operational Procedures, as such Project Objective has the meaning and other assets and activities under the may be posted on MCC’s Web site from provided in Section 1.2. Program or the Project; (iii) any persons time to time. Provider has the meaning provided in and entities, including without MCC Policy for Monitoring and Section 3.7(c). limitation any Implementing Entity, Evaluation of Compacts and Threshold Reporting Guidelines means the MCC contractor (prime and subcontractors), Programs has the meaning provided in ‘‘Guidance on Quarterly MCA consultant or grantees, that provide Annex III. Disbursement Request and Reporting such goods, works, services, technology MCC Program Procurement Package’’ posted by MCC on the MCC and assets, or perform such activities Guidelines has the meaning provided in Web site or otherwise publicly made (each, a ‘‘Vendor’’); and/or (iv) any Section 3.6(a). available. income, profits, and payments with MCC Social and Gender Integration Retained Earnings means the portion respect to the foregoing, except as Plan Guidelines means MCC’s Social of net income retained after payment of otherwise allowed pursuant to Section and Gender Integration Plan Guidelines, any dividends. 2.8 of the Compact.

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This Annex VI sets out the used to employ or engage such natural Instrument to exempt Eligible Entities mechanisms for exempting MCC or legal person; (ii) any laws of Zambia receiving MCC Funding from payment Funding from the principal Taxes that purport to change such status based of corporate income tax on any income otherwise imposed by the Government. on period of contract or grant derived from that MCC Funding, in Should any potential liability for Taxes performance, or period of time residing accordance with the Income Tax Act. on MCC Funding arise that is not and/or working in Zambia; and/or (iii) (b) Any Eligible Entity earning income contemplated by the mechanisms set any requirement under the laws of derived from MCC Funding in Zambia out in this Annex VI, the Parties will, in Zambia that a company or other legal in any given tax year will be exempt accordance with Section 2.8 of the person must establish a branch office in from the payment or imposition of any Compact, agree to the means by which Zambia, or otherwise register or Zambian income (and other) taxes on MCC Funding will be exempt from such organize itself under the laws of such income, and as such will not be Taxes. Zambia, in order to provide goods, required to have any taxes withheld on For the purposes of this Annex VI, works or services in Zambia. any income derived from MCC Funding MCA-Zambia and any Vendor are In addition, in complying with the tax during the tax year. referred to variously as ‘‘Eligible exemption obligations set forth in the (c) At the end of a given tax year, any Entities’’ or ‘‘Eligible Individuals,’’ as Compact, the Government will also Eligible Entity earning only income appropriate. exempt MCA-Zambia, the Fiscal Agent, derived from MCC Funding in Zambia In addition, for the purposes of this the Procurement Agent and/or any other in that tax year will file a tax return Annex VI, any Compact-related Vendor from any obligation imposed by indicating that such income is not contracts, agreements or grants with an the laws of Zambia, including the subject to taxation in Zambia in Eligible Entity or Eligible Individual are Applicable Acts, to withhold any Taxes accordance with the Compact, the referred to as a ‘‘Compact Contract.’’ from any payments made to any Eligible Statutory Instrument issued by the 2. General Background Entities or Eligible Individuals. Minister of Finance and National Planning and the Compact Contract. The For most Tax exemptions or Tax 4. General Mechanism Exemption Eligible Entity will include a copy of the rebates, the applicable tax-related laws The general mechanism that the applicable Compact Contract and the of Zambia (the ‘‘Applicable Acts’’) have Government will use to implement its Statutory Instrument with its tax return. vested powers in the Minister of tax exemption obligations under the (d) Any Eligible Entity earning both Finance and National Planning to grant Compact is as follows: income derived from MCC Funding and such exemptions or rebates through the (a) The Minister of Finance and non-Compact-related income in Zambia issuance of subsidiary legislation, each National Planning and MCA-Zambia in any given tax year will: referred to as a ‘‘Statutory Instrument.’’ will cooperate in drafting an (i) Maintain its books and records to For every Statutory Instrument that is explanatory memorandum to the segregate financial activity related to its issued in respect of a tax exemption or Committee on Delegated Legislation of Compact-funded activities from those rebate, the Minister of Finance and Parliament explaining the policy behind financial activities that are not related to National Planning submits an the issuance of the Statutory Instrument the Compact. explanatory memorandum to the to exempt MCC Funding from the (ii) At the end of any such tax year, Committee on Delegated Legislation of payment or imposition of any Taxes, file its tax return on income that is not Parliament. The memorandum explains and specifically the requirement to derived from MCC Funding, as why the Statutory Instrument has been exempt Eligible Entities and/or Eligible applicable, providing the issued. Individuals from the following types of documentation required in paragraph 3 In general, MCC Funding will be Taxes with respect to MCC Funding: above. treated in accordance with the (i) Corporate Income Tax; Schedule B Personal Income Tax provisions of donor-funded projects, (ii) Personal Income Tax; under which there is authority to (iii) Withholding Tax; 1. Procedures exempt any goods, services or works (iv) Excise Tax on Fuel; and (a) The Minister of Finance and that are purchased using such funds (v) Any other taxes that require a from taxation in Zambia. In terms of National Planning will issue a Statutory Statutory Instrument for exemption. Instrument to exempt Eligible income tax and other exemptions, for (b) The explanatory memorandum which existing exemption mechanisms Individuals receiving MCC Funding will, at a minimum, specify: from payment of personal income tax on are not specifically referenced in the (i) The project or activity that will Applicable Acts, the Minister of Finance any income earned from that MCC benefit from the exemption; Funding, in accordance with the Income and National Planning will issue a (ii) The expected timeframe of each specific Statutory Instrument. Tax Act. project or activity; (b) MCA-Zambia will send a letter to 3. Miscellaneous Additional (iii) The expected cost of each project the Minister of Finance and National Requirements or activity; and Planning listing any exempt natural For the purposes of determining if a (iv) A complete list of Taxes that will persons (as determined by Section 2.8(a) natural person is a permanent resident be exempted. of the Compact and this Annex VI) of Zambia or if a legal person has been (c) For tax exemptions not provided working on Compact-related projects or formed under the laws of Zambia under for by means of a Statutory Instrument, activities, and will attach a copy of the Section 2.8(a) of the Compact, the the exemption will be provided by the agreement or contract under which the taxable status of such natural or legal means set out in this Annex VI, or as exempt natural person will be working. person will be based on its status at the otherwise agreed by the Parties. The letter should also include a request time it is awarded or executes a Schedule A Corporate Income Tax to exempt such natural person from any Compact-related agreement, contract, or social security and other related benefits grant, and such initial determination 1. Procedures required under the laws of Zambia. will not change regardless of: (i) The (a) The Minister of Finance and (c) Any Eligible Individual earning type of agreement, contract or grant National Planning will issue a Statutory only income derived from MCC Funding

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in Zambia in any given tax year will be respective tax return, the input VAT Excise duties are determined by exempt from the payment or imposition incurred in the course of their business, reference to weight, strength or quantity of any Zambia taxes on such income, and remit to the Zambia Revenue of the goods or products, or by reference and as such will not be required to have Authority (‘‘ZRA’’) the output VAT to their value. The excise duty is taxes withheld on any such income collected in excess of their input VAT charged on the ‘‘Excisable Value’’ (i.e., earned during the tax year. At the end paid. Therefore, registered suppliers do the customs value plus customs duty). of the tax year, such Eligible Individual not pay VAT. Fuel is generally subject to an excise will file a tax return indicating that such duty under the laws of Zambia, 2. Procedure income is not subject to taxation in including the Applicable Acts. Zambia, in accordance with the (a) For the purposes of VAT, the tax Compact, the Statutory Instrument exemption required under the Compact 2. Procedure issued by the Minister of Finance and will be provided via the zero rating of Fuel that will be purchased for official National Planning and the Compact goods or services supplied or imported use under the Compact using MCC Contract. The Eligible Individual will under a technical aid program or project Funding will be exempt from the include a copy of the applicable which is: payment or imposition of any Taxes, Compact Contract and the Statutory (i) Paid for through donor funding, including excise duties. Instrument with its tax return. such as MCC Funding through the Subject to the procedures below, ZRA (d) Any Eligible Individual earning Compact; and will advise MCA-Zambia, and each both income derived from MCC Funding (ii) Provided by the donor, or by a Eligible Entity and Eligible Individual, and non-Compact-related income in contractor of the donor, under a written of the designated fuel suppliers/filling Zambia in any given tax year will be agreement with the Government. stations where fuel is deemed to be permitted to exclude the gross amount (b) Each applicable Compact Contract supplied in bond (i.e., from bonded of personal income derived from MCC will explicitly state that goods, works or premises or filling stations). Funding for the purposes of filing his/ services purchased using MCC Funding MCA-Zambia will be listed in the her year-end individual income taxes in under the Compact are zero rated for the Third Schedule of the ‘‘Customs and Zambia for any such tax year. Such purposes of VAT. The zero rating will Excise (General) Regulations, 2000’’ (the Eligible Individual will include a copy then be implemented through the ‘‘Third Schedule’’) as exempt from of the applicable Compact Contract and issuance of Local Purchase Orders (each customs and excise taxes. Accordingly, the Statutory Instrument with its tax an ‘‘LPO’’). MCA-Zambia will be entitled to return. (c) MCA-Zambia will provide the purchase fuel free from taxation at the following information, on MCA-Zambia Schedule C Withholding Tax designated fuel suppliers/filling stations official letterhead, for each Compact when such fuel is purchased using MCC 1. Description Contract to the Permanent Secretary Funding. The withholding tax is a flat, general (Budget and Economic Affairs), Ministry With regard to Eligible Entities and tax at the rate of 15 percent withheld at of Finance and National Planning, P.O. Eligible Individuals, a letter of rebate the source of payment in connection Box 50062, Lusaka, Zambia: confirmation will be issued by the with such things as interest, dividends, (i) Name of Eligible Entity or Eligible Ministry of Finance and National royalties, rents, management and Individual; Planning to ZRA. To facilitate issuance consultancy fees, commissions and (ii) Name of the Project/Activity of this letter, MCA-Zambia will send a public entertainment fees. undertaken through Compact Contract; letter to the Ministry of Finance and (iii) Total contract value; National Planning confirming those 2. Procedure (iv) Location(s) where the goods, entities or individuals eligible for the The Minister of Finance and National works or services will be provided; and exemption, providing a copy of the Planning will issue a Statutory (v) Name and address of the senior applicable Compact Contract. Instrument to exempt Eligible Entities official of the Eligible Entity or Eligible Upon issuance of the letter of rebate and Eligible Individuals receiving MCC Individual who will be responsible and confirmation by the Ministry of Finance Funding from the requirement to have accountable for the issuance of the LPO. and National Planning, the Eligible withholding tax withheld at the source (d) The Ministry of Finance and Entity and/or Eligible Individual will be of payment for management and National Planning will direct ZRA to entitled to purchase fuel free from consultancy fees, as well as other issue an LPO booklet to the Eligible taxation at the designated fuel payments that would otherwise be Entity or Eligible Individual in the suppliers/filling stations when such fuel subject to the withholding tax that are amount of the total value of the is purchased using MCC Funding. paid with MCC Funding. For the Compact Contract. Schedule F Customs Duty and Tariff avoidance of doubt, the Statutory (e) The Eligible Entity or Eligible Taxes Instrument will also exempt MCA- Individual will pay for Compact-funded Zambia from the requirement to purchases less VAT, complete the LPO 1. Description certificate in the amount of the VAT for withhold and remit such tax. Customs duty is charged on the that particular purchase, and provide ‘‘Customs Value’’ of imported capital Schedule D Value Added Tax the LPO certificate to the vendor as equipment and raw materials (0 to 5 proof for VAT zero-rating of the 1. Description percent), intermediate goods (15 purchase. The value added tax (‘‘VAT’’) is a percent), and finished goods (25 consumption-based tax that is levied in Schedule E Excise Duty on Fuel percent). the supply chain at each point where value is added to a good or service. VAT 1. Description 2. Procedure is incurred by the final person or entity The excise duty is a tax on particular (a) Goods imported by MCA-Zambia. in the chain of supply that is not goods or products, whether imported or The Minister of Finance and National registered for VAT. Persons registered produced domestically, imposed at any Planning will issue a Statutory for VAT will claim back, through their stage of production or distribution. Instrument to list MCA-Zambia in the

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Third Schedule. The listing of MCA- Compact-related projects or activities, For equipment imported from outside Zambia in the Third Schedule will the Applicable Acts separately provide Zambia on a temporary basis (i.e., for enable MCA-Zambia to qualify for an for the temporary importation of the duration of the Compact) the exemption from the payment of customs machinery or equipment by Eligible Eligible Entity or Eligible Individual duty and tariffs on all goods that will be Entities and Eligible Individuals using must remove the equipment from imported for the official use of MCA- machinery or equipment that they Zambia within a reasonable period of Zambia for Compact-related purposes. already own, but which is located time after the end of the Compact (or the Accordingly, all imports for official outside Zambia. Such machinery or applicable period of performance) or use by MCA-Zambia will be cleared free equipment may be imported exempt pay any residual taxes that had been of customs duties and tariffs by ZRA on from the payment of custom duties or exempted (see related provisions in the basis of MCA-Zambia being listed as tariffs. Schedule F above). exempt on the Third Schedule. Subject to the conditions indicated 2. Procedure MCA-Zambia and Any (b) Goods imported by Eligible above, the procedure for the exemption Eligible Entities or Eligible Individuals Entities and Eligible Individuals. of custom duties or tariffs on machinery With regard to goods imported by and equipment imported by Eligible (a) MCA-Zambia will send letter to Eligible Entities and Eligible Entities or Eligible Individuals for use Ministry of Finance and National Individuals, a letter of rebate on Compact-related activities or projects Planning requesting exemption from confirmation will be issued by the will be as follows: import VAT, either for itself or on behalf Ministry of Finance and National • Importation of equipment on short of the Eligible Entity or the Eligible Planning to ZRA. To facilitate issuance term projects (i.e., twelve months or Individual. This letter must include: of this letter, MCA-Zambia will send a less). In such cases, machinery or (i) Copy of the Compact Contract; and letter to the Ministry of Finance and equipment can be imported into the (ii) Copy of the bill of quantities for National Planning confirming those country through a Temporal Import goods to be imported by MCA-Zambia, entities or individuals eligible for the Permit. The applicable Eligible Entity or or the Eligible Entity or Eligible exemption, providing a copy of the Eligible Individual will apply to ZRA by Individual (as the case may be). applicable Compact Contract, including providing proof (normally a copy of the the approved bills of quantities. Compact Contract, together with (b) Ministry of Finance and National Upon issuance of the letter of rebate confirmation from MCA-Zambia and Planning will direct ZRA to issue an confirmation by the Ministry of Finance any other documentation that may be exemption certificate to MCA-Zambia, and National Planning, the Eligible required) that such entity or individual or the Eligible Entity or the Eligible Entity and/or Eligible Individual will be will be carrying out Compact-related Individual (as the case may be). cleared free of customs duties and tariffs projects or activities, and that such (c) MCA-Zambia, or the Eligible Entity by ZRA to the extent of the Compact machinery or equipment is being or Eligible Individual (as the case may Contract, including the approved bill of imported for twelve months or less for be), will present the following to the quantities. the purposes of implementing such Bureau of Customs: (c) Goods imported by staff to take up Compact-related projects or activities. (i) Bill of lading; employment. • Importation of equipment on long (ii) Invoice for goods; and The ‘‘Customs and Excise (General) term projects (i.e., more than twelve Regulations, 2000’’ provides for an (iii) Certificate of exemption issued by months). In such cases, MCA-Zambia ZRA. exemption from the payment of custom will send a letter to the Ministry of (d) The Credibility and Controls Unit duties and tariffs on household and Finance and National Planning to of the Bureau of Customs is responsible personal effects, including one motor request a temporal exemption from the for clearance of the imported items. The vehicle per household, for new payment of custom duties and tariffs on Credibility and Controls Unit will issue residents in Zambia. The individual such machinery and equipment, and instructions to the Port Authority to requiring the exemption will need to will provide a copy of the applicable allow the import VAT exemption and inform ZRA on arrival in Zambia that Compact Contract, including the bill of release the goods. they are new residents and show proof quantities. (normally passport and any other In any case, the provisions of the (e) Estimated time for this clearance is documentation that may be required). ‘‘Customs and Excise (General) three (3) to four (4) days. The Applicable Acts provide that such Regulations, 2000’’ will apply to the Schedule H Medical Levy Tax persons must import these items within disposal of all machinery and six months of arrival to benefit from this equipment imported by an Eligible 1. Description rebate. Entity or an Eligible Individual in (d) Machinery and Equipment The medical levy was introduced connection with its Compact-related imported by Eligible Entities and through the ‘‘Medical Levy Act, 2003’’ projects and activities when such Eligible Individuals for use on Compact- in an effort to raise additional revenue machinery and equipment will no related projects or activities. for the health sector. Banks and other The ‘‘Customs and Excise (General) longer be used to carry out Compact- financial institutions are required to Regulations, 2000’’ provide for an related projects or activities. deduct the Medical Levy from gross exemption from payment of custom Schedule G Import VAT interest earned by any person and duties and tariffs on machinery and partnership on any savings or deposit equipment imported for any Compact- 1. Description accounts, treasury bills or government related projects or activities when such Import VAT is collected on behalf of bonds. The Medical Levy (1 percent) is machinery and equipment will remain the VAT Division and is applied to charged on all interest earnings from on the project or activity, or will be the imported goods that attract VAT. VAT is banks and other financial institutions. property of either MCA-Zambia or the charged on the ‘‘Taxable Value’’ (i.e., 2. Procedure Government at the end of the Program. the customs value plus customs duty, Regarding machinery or equipment plus excise duty, where applicable) at The Minister of Finance and National imported for use in connection with any the rate of 16 percent. Planning will issue a Statutory

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Instrument to exempt MCA-Zambia PLACE: 1325 G Street NW., Suite 800, will be considered if it is practical to do from payment of the medical levy. Boardroom, Washington, DC 20005. so, but the NRC is able to ensure [FR Doc. 2012–11993 Filed 5–16–12; 8:45 am] STATUS: Open. consideration only for comments BILLING CODE 9211–03–P CONTACT PERSON FOR MORE INFORMATION: received on or before this date. Erica Hall, Assistant Corporate Although a time limit is given, Secretary, (202) 220–2376; comments and suggestions in NATIONAL ARCHIVES AND RECORDS [email protected]. connection with items for inclusion in guides currently being developed or ADMINISTRATION AGENDA: improvements in all published guides I. Call to Order are encouraged at any time. Advisory Committee on the II. Executive Session Presidential Library-Foundation III. Employee Performance Management ADDRESSES: You may access information Partnerships System Consult and comment submissions related to IV. Policy Changes this document, which the NRC AGENCY: National Archives and Records possesses and are publicly available, by Administration. V. Human Resources Updates VI. Washington, DC Office Lease Update searching on http://www.regulations.gov ACTION: Notice of meeting. VII. Annual Report Board under Docket ID NRC–2012–0110. You may submit comments by any of the SUMMARY: In accordance with the Memberships—Officers and Board Appointees following methods: Federal Advisory Committee Act, as • Federal rulemaking Web site: Go to amended (5 U.S.C. appendix 2), the VIII. Board Elections and Appointments IX. Adjournment http://www.regulations.gov and search National Archives and Records for Docket ID NRC–2012–0110. Address Administration (NARA) announces a Erica Hall, questions about NRC dockets to Carol meeting of the Advisory Committee on Assistant Corporate Secretary. Gallagher; telephone: 301–492–3668; Presidential Library-Foundation [FR Doc. 2012–12046 Filed 5–15–12; 11:15 am] email: [email protected]. Partnerships. The meeting will be held BILLING CODE 7570–02–P • Mail comments to: Cindy Bladey, to discuss the National Archives and Chief, Rules, Announcements, and Records Administration’s budget and its Directives Branch (RADB), Office of strategic planning process as it relates to NUCLEAR REGULATORY Administration, Mail Stop: TWB–05– Presidential Libraries. The meeting will COMMISSION B01M, U.S. Nuclear Regulatory be open to the public. [NRC–2012–0110] Commission, Washington, DC 20555– DATES: The meeting will be held on 0001. Friday, June 1, 2012 from 9:00 a.m. to An Approach for Probabilistic Risk • Fax comments to: RADB at 301– 12:00 noon. Assessment in Risk-Informed 492–3446. ADDRESSES: National Archives building Decisions on Plant-Specific Changes For additional directions on accessing at 700 Pennsylvania Avenue NW., to the Licensing Basis information and submitting comments, Washington, DC, Room 105. see ‘‘Accessing Information and FOR FURTHER INFORMATION CONTACT: AGENCY: Nuclear Regulatory Submitting Comments’’ in the Denise LeBeck at 301–837–3250 or Commission. SUPPLEMENTARY INFORMATION section of [email protected]. ACTION: Draft regulatory guide; request this document. for comment. SUPPLEMENTARY INFORMATION: Meeting FOR FURTHER INFORMATION CONTACT: Robert Carpenter, U.S. Nuclear attendees may enter from the SUMMARY: The U.S. Nuclear Regulatory Pennsylvania Avenue entrance. Due to Commission (NRC or the Commission) Regulatory Commission, Washington, space limitations and access procedures, is issuing for public comment four (4) DC 20555–0001, telephone: 301–251– the name and telephone number of draft regulatory guides (DGs), DG–1285, 7483 or email: individuals planning to attend must be ‘‘An Approach for Probabilistic Risk [email protected]. submitted to the contact email listed. Assessment in Risk-Informed Decisions SUPPLEMENTARY INFORMATION: Photo identification will be required. No on Plant-Specific Changes to the I. Accessing Information and visitor parking is available at the Licensing Basis,’’ (proposed Revision 3 Submitting Comments Archives building; however there are of Regulatory Guide [RG] 1.174); DG– commercial parking lots and metered 1286, ‘‘An Approach for Plant-Specific, A. Accessing Information curb parking nearby. Risk-Informed Decisionmaking: Please refer to Docket ID NRC–2012– Dated: May 14, 2012. Inservice Testing,’’ (proposed Revision 1 0110 when contacting the NRC about Mary Ann Hadyka, of RG 1.175); DG 1287, ‘‘An Approach the availability of information regarding Committee Management Officer. for Plant-Specific, Risk-Informed this document. You may access Decisionmaking: Technical information related to this document, [FR Doc. 2012–11978 Filed 5–16–12; 8:45 am] Specifications’’ (proposed Revision 2 of BILLING CODE 7515–01–P which the NRC possesses and is RG 1.177); and DG–1288, ‘‘An Approach publicly available, by any of the for Plant-Specific Risk-Informed following methods: Decisionmaking for Inservice Inspection • Federal Rulemaking Web Site: Go to NEIGHBORHOOD REINVESTMENT of Piping’’ (proposed Revision 2 of RG CORPORATION http://www.regulations.gov and search 1.178). These guides describe methods for Docket ID NRC–2012–0110. the NRC staff considers acceptable for Sunshine Act Meeting; Corporate • NRC’s Agencywide Documents plant-specific, risk-informed Administration Committee, Board of Access and Management System decisionmaking on specific licensee Directors (ADAMS): You may access publicly activities. available documents online in the NRC TIME AND DATE: 2:00 p.m., Thursday, DATES: Submit comments by June 29, Library at http://www.nrc.gov/reading- May 24, 2012. 2012. Comments received after this date rm/adams.html. To begin the search,

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select ‘‘ADAMS Public Documents’’ and problems or postulated accidents, and assessing the impact of these changes on then select ‘‘Begin Web-based ADAMS data that the staff needs in its review of the risk associated with plant design Search.’’ For problems with ADAMS, applications for permits and licenses. and operation. One key element to this please contact the NRC’s Public These 4 draft regulatory guides are type of decisionmaking is an Document Room (PDR) reference staff at temporarily identified by their task engineering analysis of the proposed 1–800–397–4209, 301–415–4737, or by numbers, DG–1285, DG–1286, DG–1287, change. As part of the engineering email to [email protected]. The DGs and DG–1288. The focus of the revisions analysis, licensees evaluate the impact and their corresponding regulatory to these RGs addresses the of the change on maintaining adequate analysis are available electronically Commission’s Staff Requirements defense-in-depth. This proposed under the following ADAMS Accession Memorandum (SRM) (SECY–11–0014, revision incorporates additional Numbers: DG–1285 (ML12012A006 and issued 3–15–2011), titled ‘‘Use of language and specific examples of how ML12013A089), DG–1286 Containment Accident Pressure in maintaining defense-in-depth is (ML12017A053 and ML12017A052), Analyzing Emergency Core Cooling achieved when licensees use risk- DG–1287 (ML12017A054 and System and Containment Heat Removal informed analysis of proposed changes ML12017A059), and DG1288 System Pump Performance in to the plant’s licensing basis. (ML12017A076 and ML12017A077). Postulated Accidents’’ directing the staff DG–1286, is proposed revision 1 of • NRC’s PDR: You may examine and to revise the discussion on defense-in- Regulatory Guide 1.175 dated August purchase copies of public documents at depth. Specifically, the SRM stated, 1998, it provides an approach to using the NRC’s PDR, Room O1–F21, One Because the statements in Regulatory risk-informed decisionmaking in White Flint North, 11555 Rockville Guide 1.174 are subject to different developing inservice testing programs Pike, Rockville, Maryland 20852. interpretations, the staff should revise this Regulatory guides are not for nuclear power plants. This revision guide using precise language to assure that updates the defense-in-depth evaluation copyrighted, and NRC approval is not the defense-in-depth philosophy is required to reproduce them. interpreted and implemented consistently. to be consistent with the proposed To the extent that other regulatory guidance changes to Regulatory Position 2.1.1 in B. Submitting Comments refers to defense in depth, the relevant draft Regulatory Guide DG–1285, Please include Docket ID NRC–2012– documents should be updated also, as (above) which provides guidance on 0110 in the subject line of your appropriate. evaluating proposed changes to a plant’s comment submission, in order to ensure In reviewing these RGs, it was licensing basis, including changes to the that the NRC is able to make your observed that clarification could be inservice testing program. comment submission available to the added in several other places; for DG–1287, is proposed revision 2 of public in this docket. example: Regulatory Guide 1.177 dated May 2011, The NRC cautions you not to include • The use of the terms ‘‘PRA it describes a method acceptable to the identifying or contact information that technical acceptability,’’ ‘‘PRA technical NRC for using probabilistic risk analysis you do not want to be publicly adequacy,’’ and ‘‘PRA quality’’ were not to evaluate proposed changes to a disclosed in your comment submission. clear. plant’s technical specifications. As in • The NRC will post all comment References in the RGs, in places, evaluating changes to a plant’s licensing submissions at http:// have been either updated or are no basis, a key element in evaluating www.regulations.gov as well as enter the longer in use. changes to technical specifications is an comment submissions into ADAMS. Although the focus of this proposed engineering analysis of the proposed The NRC does not routinely edit revision is to revise the discussion on change. As part of the engineering comment submissions to remove defense-in-depth, the NRC staff believes analysis, licensees evaluate the impact identifying or contact information. that the identified clarifications should of the change on maintaining adequate If you are requesting or aggregating be addressed. In DG–1285 (proposed defense-in-depth. This revision updates comments from other persons for Rev. 3 of RG 1.174) the terms on PRA the defense-in-depth evaluation to be submission to the NRC, then you should technical acceptability, PRA technical consistent with the proposed changes to inform those persons not to include adequacy, and PRA quality are revised Regulatory Position 2.1.1 in draft identifying or contact information that to be consistent with RG 1.200, ‘‘An Regulatory Guide DG–1285, (above) they do not want to be publically Approach for Determining the Technical which provides guidance on evaluating disclosed in their comment submission. Adequacy of Probabilistic Risk proposed changes to the plant’s Your request should state that the NRC Assessment Results for Risk-Informed technical specifications. does not routinely edit comment Activities’’ and the references were submissions to remove such information updated. It is the intent of the staff, DG–1288, is proposed revision 2 of before making the comment following the public review and Regulatory Guide 1.178 dated submissions available to the public or comment period, to review all four RGs September 2003, it provides an entering the comment submissions into and identify administrative changes that approach to using risk-informed ADAMS. will improve the consistency, quality, decisionmaking in developing inservice and usability of each guide. inspection programs for piping in II. Further Information Stakeholders and the public are nuclear power plants. This revision The NRC is issuing for public requested to provide any input updates the defense-in-depth evaluation comment 4 draft regulatory guides in regarding areas in these DGs where to be consistent with the proposed the NRC’s ‘‘Regulatory Guide’’ series. clarification and improvements may be changes to Regulatory Position 2.1.1 in This series was developed to describe needed. draft Regulatory Guide DG–1285, which and make available to the public such DG–1285, is proposed revision 3 of provides guidance on evaluating information as methods that are Regulatory Guide 1.174 dated May 2011, proposed changes to a plant’s licensing acceptable to the NRC staff for it provides guidance on an approach the basis, including changes to the inservice implementing specific parts of the NRC finds acceptable for analyzing inspection program for piping systems. NRC’s regulations, techniques that the issues associated with proposed changes Dated at Rockville, Maryland, this 4th day staff uses in evaluating specific to a plant’s licensing basis and for of May 2012.

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For the Nuclear Regulatory Commission. contract related to the proposed new Id. at 1. The Postal Service asks the Thomas H. Boyce, product. Id., Attachment B. The instant Commission to protect customer- Chief, Regulatory Guide Development Branch, contract has been assigned Docket No. identifying information from public Division of Engineering, Office of Nuclear CP2012–24. disclosure indefinitely. Id. Request. To support its Request, the Regulatory Research. Supplemental information. The Postal Service filed the following six [FR Doc. 2012–11958 Filed 5–16–12; 8:45 am] Commission notes that the Postal BILLING CODE 7590–01–P attachments: • Attachment A—a redacted version Service contemporaneously filed five of the Governors’ Decision and other First-Class Package Service accompanying analysis. An explanation contracts in separate dockets. The POSTAL REGULATORY COMMISSION and justification is provided in the financial workpapers that support each [Docket Nos. MC2012–18 and CP2012–24; Governors’ Decision and analysis filed contract use the same volume Order No. 1341] in the unredacted version under seal; distribution percentages. Please provide • Attachment B—a redacted version the basis for the volume distribution for Product List Changes of the instant contract; each contract. Please file this • Attachment C—the proposed AGENCY: Postal Regulatory Commission. information by May 18, 2012. changes in the Mail Classification ACTION: Notice. Schedule with the addition underlined; II. Notice of Filings • Attachment D—a Statement of SUMMARY: The Commission is noticing a The Commission establishes Docket Supporting Justification as required by recently-filed Postal Service request to Nos. MC2012–18 and CP2012–24 to add First-Class Package Service Contract 39 CFR 3020.32; • Attachment E—a certification of consider the Request and the instant 2 the competitive product list. This compliance with 39 U.S.C. 3633(a)(1), contract, respectively. notice addresses procedural steps (2), and (3); and associated with this filing. Interested persons may submit • Attachment F—an application for comments on whether the Postal DATES: Supplemental Information is due non-public treatment of the materials Service’s filings in these dockets are (from Postal Service): May 18, 2012. filed under seal. The materials filed consistent with the policies of 39 U.S.C. Comments are due: May 22, 2012. under seal are the unredacted version of 3632, 3633, or 3642, 39 CFR 3015.5, and ADDRESSES: Submit comments the instant contract and the required 39 CFR part 3020, subpart B. Comments electronically via the Commission’s cost and revenue data. are due no later than May 22, 2012. The Filing Online system at http:// In the Statement of Supporting public portions of these filings can be www.prc.gov. Commenters who cannot Justification, Dennis R. Nicoski, accessed via the Commission’s Web site submit their views electronically should Manager, Field Sales Strategy and (http://www.prc.gov). contact the person identified in FOR Contracts, asserts that the instant FURTHER INFORMATION CONTACT by contract will cover its attributable costs, The Commission appoints Katalin K. telephone for advice on alternatives to make a positive contribution to cover Clendenin to serve as Public electronic filing. institutional costs, and increase Representative in these dockets. contribution toward the requisite 5.5 FOR FURTHER INFORMATION CONTACT: III. Ordering Paragraphs Stephen L. Sharfman, General Counsel percent of the Postal Service’s at 202–789–6820. institutional costs. Id., Attachment D at It is ordered: SUPPLEMENTARY INFORMATION: 1. Mr. Nicoski contends that there will be no issue of subsidization of market 1. The Commission establishes Docket Table of Contents dominant products by competitive Nos. MC2012–18 and CP2012–24 to consider the matters raised in each I. Introduction products as a result of the instant II. Notice of Filings contract. Id. docket. III. Ordering Paragraphs Instant contract. The Postal Service 2. Pursuant to 39 U.S.C. 505, Katalin included a redacted version of the K. Clendenin is appointed to serve as I. Introduction instant contract with the Request. Id., officer of the Commission (Public In accordance with 39 U.S.C. 3642 Attachment B. It is scheduled to become Representative) to represent the and 39 CFR 3020.30 et seq., the Postal effective on the day the Commission interests of the general public in these Service filed a formal request and issues all necessary regulatory approval proceedings. associated supporting information to (Effective Date). Id. at 2. It will expire add First-Class Package Service Contract 1 year from the Effective Date unless, 3. Comments by interested persons in 2 to the Competitive Product List.1 The among other things, either party these proceedings are due no later than Postal Service asserts that First-Class terminates the agreement with 30 days May 22, 2012. Package Service Contract 2 is ‘‘a written notice to the other party. Id. The 4. The supplemental information competitive product not of general Postal Service represents that the related discussed in the body of this order is applicability within the meaning of 39 contract is consistent with 39 U.S.C. due no later than May 18, 2012. U.S.C. 3632(b)(3).’’ Id. at 1. The Request 3633. Id., Attachment D. 5. The Secretary shall arrange for has been assigned Docket No. MC2012– The Postal Service filed much of the publication of this order in the Federal 18. supporting materials, including the The Postal Service unredacted version of the instant Register. contemporaneously filed a redacted contract, under seal. Id., Attachment F. By the Commission. It maintains that the unredacted Ruth Ann Abrams, 1 Request of the United States Postal Service to Governors’ Decision, the unredacted Acting Secretary. Add First-Class Package Service Contract 2 to version of the instant contract, and [FR Doc. 2012–11979 Filed 5–16–12; 8:45 am] Competitive Product List and Notice of Filing supporting documents establishing (Under Seal) of Unredacted Governors’ Decision, BILLING CODE 7710–FW–P Contract, and Supporting Data, May 9, 2012 compliance with 39 U.S.C. 3633 and 39 (Request). CFR 3015.5 should remain confidential.

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SECURITIES AND EXCHANGE Information Officer, Securities and investment companies, ‘‘Closed-End COMMISSION Exchange Commission, c/o Remi Pavlik- Funds’’) that are within and outside the Simon, 6432 General Green Way, same group of investment companies in Submission for OMB Review; Alexandria, VA 22312 or send an email excess of the limits imposed by sections Comment Request to [email protected]. Comments 12(d)(1)(A) and 12(d)(1)(C) of the Act. Upon written request, copies available must be submitted within 30 days of this notice. FILING DATES: The application was filed from: Securities and Exchange on November 16, 2010, and amended on Commission, Office of Investor Dated: May 11, 2012. May 10, 2011, November 18, 2011, Education and Advocacy, Kevin M. O’Neill, March 15, 2012, and May 7, 2012. Washington, DC 20549–0213. Deputy Secretary. HEARING OR NOTIFICATION OF HEARING: An Extension: [FR Doc. 2012–11929 Filed 5–16–12; 8:45 am] order granting the application will be Rule 15g–5; OMB Control No. 3235–0394; BILLING CODE 8011–01–P SEC File No. 270–348. issued unless the Commission orders a hearing. Interested persons may request Notice is hereby given that pursuant SECURITIES AND EXCHANGE a hearing by writing to the to the Paperwork Reduction Act of 1995 Commission’s Secretary and serving (44 U.S.C. 3501 et seq.), the Securities COMMISSION applicants with a copy of the request, and Exchange Commission [Investment Company Act Release No. personally or by mail. Hearing requests (Commission) has submitted to the 30063; 812–13846] should be received by the Commission Office of Management and Budget a by 5:30 p.m. on June 4, 2012, and request for approval of extension of the Van Eck VIP Trust, et al.; Notice of should be accompanied by proof of previously approved collection of Application service on applicants in the form of an information provided for in the May 10, 2012. affidavit or, for lawyers, a certificate of following rule: Rule 15g–5—Disclosure AGENCY: Securities and Exchange service. Hearing requests should state of compensation of associated persons Commission (‘‘Commission’’). the nature of the writer’s interest, the in connection with penny stock ACTION: reason for the request, and the issues transactions (17 CRF 240.15g–5) under Notice of an application to contested. Persons who wish to be the Securities Exchange Act of 1934 (15 amend a prior order under section 12(d)(1)(J) of the Investment Company notified of a hearing may request U.S.C. 78a et seq.). Rule 15g–5 requires brokers and Act of 1940 (‘‘Act’’) for an exemption notification by writing to the dealers to disclose to customers the from sections 12(d)(1)(A) and (C) of the Commission’s Secretary. Act. amount of compensation to be received ADDRESSES: Elizabeth M. Murphy, by their sales agents in connection with APPLICANTS: Van Eck VIP Trust (f/k/a Secretary, U.S. Securities and Exchange penny stock transactions. The purpose Van Eck Worldwide Insurance Trust) Commission, 100 F Street NE., of the rule is to increase the level of (‘‘VIP’’), Van Eck Funds, Market Vectors Washington, DC 20549–1090; disclosure to investors concerning ETF Trust (each, a ‘‘Trust’’ and Applicants, 335 Madison Avenue 19th penny stocks generally and specific collectively, the ‘‘Trusts’’), and Van Eck Floor, New York, New York 10017. penny stock transactions. Associates Corporation (the ‘‘Adviser’’). The Commission estimates that FOR FURTHER INFORMATION CONTACT: Jill SUMMARY OF THE APPLICATION: approximately 209 broker-dealers will Ehrlich, Senior Counsel, at (202) 551– spend an average of 87 hours annually Applicants previously obtained an order 6819, or David P. Bartels, Branch Chief, to comply with the rule. Thus, the total (‘‘Prior Order’’) permitting certain at (202) 551–6821 (Division of registered open-end management compliance burden is approximately Investment Management, Office of investment companies to acquire shares 18,183 burden-hours per year. Investment Company Regulation). of other registered open-end Rule 15g–5 contains record retention SUPPLEMENTARY INFORMATION: The requirements. Compliance with the rule management investment companies and unit investment trusts that are within following is a summary of the is mandatory. application. The complete application The Commission may not conduct or and outside the same group of investment companies in excess of the may be obtained via the Commission’s sponsor collection of information unless Web site by searching for the file it displays a currently valid control limits imposed by sections 12(d)(1)(A) and 12(d)(1)(B) of the Act.1 Applicants number, or for an applicant using the number. No person shall be subject to Company name box, at http:// any penalty for failing to comply with request an order (‘‘Order’’) that would amend the Prior Order by also www.sec.gov/search/search.htm or by a collection of information subject to the calling (202) 551–8090. PRA that does not display a valid Office permitting such registered open-end of Management and Budget (OMB) management investment companies to Applicants’ Representations control number. acquire shares of registered closed-end Background documentation for this investment companies and business 1. Each Trust is registered under the information collection may be viewed at development companies as defined by Act as an open-end management the following Web site, section 2(a)(48) of the Act (‘‘business investment company. The shares of each www.reginfo.gov. Comments should be development companies,’’ and, series of VIP currently are offered and directed to: (i) Desk Officer for the collectively with registered closed-end sold through registered separate Securities and Exchange Commission, accounts of insurance companies that 1 In the Matter of Van Eck Worldwide Insurance are not affiliates of the Adviser Office of Information and Regulatory Trust, et al., Investment Company Act Release Nos. Affairs, Office of Management and 27820 (May 9, 2007) (notice) and 27849 (June 1, (‘‘Registered Separate Accounts’’) and Budget, Room 10102, New Executive 2007) (order). Van Eck Funds, Inc. was a party to unregistered separate accounts of Office Building, Washington, DC 20503 the application for the Prior Order but is not among insurance companies that are not or by sending an email to: the applicants for the Application (as defined affiliates of the Adviser (‘‘Unregistered _ below) because Van Eck Funds, Inc. was Shagufta [email protected]; and (ii) deregistered on June 25, 2008 (under the name Van Separate Accounts’’ and, together with Thomas Bayer, Director/Chief Eck Funds II, Inc.). the Registered Separate Accounts, the

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‘‘Separate Accounts’’).2 The Adviser is assets of the acquiring company, or, securities. Rather, applicants state that registered with the Commission as an together with the securities of any other sales will only be effected through investment adviser under the investment companies, more than 10% transactions in the secondary market.6 Investment Advisers Act of 1940 and is of the value of the total assets of the Applicants state that, because these the investment adviser for each of the acquiring company. Section 12(d)(1)(C) sales would not require the Closed-End Funds (as defined below). prohibits an investment company from Fund to alter its investments or deplete 2. The Prior Order permits certain acquiring any security issued by a its assets, a Fund of Funds should not series of the Trusts (‘‘Funds’’) to operate registered closed-end investment be able to influence the management or as funds of funds (‘‘Funds of Funds’’) company if such acquisition would operation of a Closed-End Fund through that will invest in other Funds that are result in the acquiring company, any threats of sales of shares. part of the same ‘‘group of investment other investment companies having the 5. However, applicants state that there companies’’ (as defined in section same investment adviser, and may be a greater opportunity for a Fund 12(d)(1)(G) of the Act) as the Fund of companies controlled by such of Funds to exercise influence over the Funds and also in other registered open- investment companies, collectively, management and operations of a Closed- end management investment companies owning more than 10% of the End Fund through voting power than is and unit investment trusts that are not outstanding voting stock of the the case with respect to open-end funds. part of the same group of investment registered closed-end investment To address this concern, applicants companies (as defined in section company. submit that, with respect to a Fund of 12(d)(1)(G) of the Act) as the Fund of 2. Section 12(d)(1)(J) of the Act Funds’ investment in an Unaffiliated Funds.3 Applicants request an Order provides that the Commission may Underlying Fund that is a Closed-End under section 12(d)(1)(J) that would exempt any person, security, or Fund, (i) each member of the Group or amend the Prior Order by also transaction, or any class or classes of the Subadviser Group that is an permitting the Funds of Funds to invest persons, securities or transactions, from investment company or an issuer that in excess of the limits imposed by any provision of section 12(d)(1) if the would be an investment company but sections 12(d)(1)(A) and 12(d)(1)(C) of exemption is consistent with the public for section 3(c)(1) or 3(c)(7) of the Act the Act in securities issued by Closed- interest and the protection of investors. will vote its shares of the Closed-End End Funds that may or may not be part 3. Applicants state that the terms and Fund in the manner prescribed by of the same group of investment conditions of the Prior Order would section 12(d)(1)(E) of the Act and (ii) 4 5 companies as the Fund of Funds. largely address the concerns underlying each other member of the Group or the section 12(d)(1) with respect to the Applicants’ Legal Analysis Subadviser Group will vote its shares of acquisition by a Fund of Funds of shares the Closed-End Fund in the same 1. Section 12(d)(1)(A) of the Act of Closed-End Funds, which include proportion as the vote of all other prohibits a registered investment concerns about undue influence by a holders of the same type of such Closed- company from acquiring shares of an fund of funds over underlying funds, End Fund’s shares (except that any investment company if the securities excessive layering of fees, and overly member of the Group or Subadviser represent more than 3% of the total complex fund structures. For example, Group that is a Separate Account will outstanding voting stock of the acquired applicants state that, pursuant to instead be subject to the voting company, more than 5% of the total condition 8 of the Prior Order, as procedures described in Condition 1 amended, prior to an investment in below). Applicants state that this would 2 Capitalized terms not otherwise defined in this shares of a Closed-End Fund in excess preclude the Group and Subadviser notice have the same meaning ascribed to them in of the limit in section 12(d)(l)(A)(i), the the application for the Order (‘‘Application’’). To Group from influencing the Fund of Funds and the Closed-End ensure that the Closed-End Funds are covered by management or operation of a Closed- the terms and conditions of the Prior Order, as Fund will execute a Participation amended by the Application, applicants have Agreement. Applicants also state that an End Fund, including the outcome of a proposed modifying the terms ‘‘Affiliated Unaffiliated Fund (including a Closed- shareholder proposal, through voting by Underlying Funds,’’ ‘‘Unaffiliated Underlying End Fund) would retain its right to a Fund of Funds of shares. Funds’’ and ‘‘Unaffiliated Funds’’ to include 6. Accordingly, applicants believe relevant Closed-End Funds. reject any initial investment by a Fund 3 Each Fund of Funds will comply with the terms of Funds in excess of the limits in that the requested exemption is and conditions of the Prior Order, as amended by section 12(d)(1)(A)(i) of the Act by consistent with the public interest and the Application. All entities that currently intend the protection of investors. to rely on the requested Order have been named as declining to execute the Participation applicants and any other entity that relies on the Agreement with the Fund of Funds. In Applicants’ Conditions Order in the future will comply with the terms and addition, applicants state that, subject conditions of the Application. Applicants request solely to the giving of notice to the Fund Applicants agree that the Order that the relief also apply to any other existing or granting the requested relief would be future registered open-end management investment of Funds and the passage of a reasonable notice period, an Unaffiliated Fund subject to the same conditions as those company that is part of the same group of imposed by the Prior Order, except for investment companies, as defined in section (including a Closed-End Fund) could 12(d)(1)(G) of the Act, as the Funds. terminate a Participation Agreement condition 1 to the Prior Order, which 4 For purposes of the Application, the term with the Fund of Funds. would be revised as follows: ‘‘group of investment companies’’ means any two The members of the Group will not or more registered investment companies, including 4. Furthermore, applicants believe closed-end investment companies, that hold that a Fund of Fund’s investments in control (individually or in the aggregate) themselves out to investors as related companies for Closed-End Funds raise less potential an Unaffiliated Underlying Fund within purposes of investment and investor services. for a fund to exercise undue influence 5 With respect to investments in business 6 Applicants note that a Fund of Funds would development companies, applicants only seek an over the management and operation of purchase and sell shares of a Closed-End Fund exemption from section 12(d)(1)(A) of the Act, not an Underlying Fund through the threat through secondary market transactions at market section 12(d)(1)(C). Applicants state that, for of large scale redemptions. Applicants prices rather than through principal transactions purposes of the Application, investments in state that this concern is not applicable with the Closed-End Fund at net asset value. business development companies do not present Applicants are not requesting section 17(a) relief to any particular considerations or concerns that may to a Fund of Funds’ investments in acquire shares of Closed-End Funds and will not be different from those presented by investments in Closed-End Funds because Closed-End rely on the section 17(a) relief granted in the Prior registered closed-end investment companies. Funds do not issue redeemable Order for such purpose.

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the meaning of section 2(a)(9) of the Act. instructions from its contract holders I. Description and Purpose of the The members of a Subadviser Group and vote its shares in accordance with Amendment will not control (individually or in the the instructions received and vote those The current Participants in the aggregate) an Unaffiliated Underlying shares for which no instructions were Linkage Plan are C2, CBOE, BATS, ISE, Fund within the meaning of section received in the same proportion as the Nasdaq, BOX, Phlx, NYSE Amex, and 2(a)(9) of the Act. With respect to a shares for which instructions were NYSE Arca. The proposed amendment Fund of Funds’ investment in an received. to the Plan would add BOX Options as Unaffiliated Underlying Fund that is a For the Commission, by the Division of a Participant in the Plan. BOX Options Closed-End Fund (i) each member of the has submitted a signed copy of the Plan Group or the Subadviser Group that is Investment Management, pursuant to delegated authority. to the Commission in accordance with an investment company or an issuer that the procedures set forth in the Plan would be an investment company but Kevin M. O’Neill, regarding new Participants. Section 3(c) for section 3(c)(1) or 3(c)(7) of the Act Deputy Secretary. of the Plan provides for the entry of new will vote its shares of the Closed-End [FR Doc. 2012–11930 Filed 5–16–12; 8:45 am] Participants to the Plan. Specifically an Fund in the manner prescribed by BILLING CODE 8011–01–P Eligible Exchange 5 may become a section 12(d)(1)(E) of the Act and (ii) Participant in the Plan by: (i) Executing each other member of the Group or the a copy of the Plan, as then in effect; (ii) Subadviser Group will vote its shares of SECURITIES AND EXCHANGE providing each current Participant with the Closed-End Fund in the same COMMISSION a copy of such executed Plan; (iii) proportion as the vote of all other effecting an amendment to the Plan, as holders of the same type of such Closed- [Release No. 34–66969; File No. 4–546] specified in Sections 3(c) and 4(b) of the End Fund’s shares (except that any Plan. member of the Group or Subadviser Joint Industry Plan; Notice of Filing Section 4(b) of the Plan puts forth the Group that is a Separate Account will and Immediate Effectiveness of process by which an Eligible Exchange instead be subject to the voting Amendment to the Options Order may effect an amendment to the Plan. procedures described below). If, as a Protection and Locked/Crossed Market Specifically, an Eligible Exchange must: result of a decrease in the outstanding Plan To Add the BOX Options (a) Execute a copy of the Plan with the voting securities of any other Exchange LLC as a Participant only change being the addition of the Unaffiliated Underlying Fund, the new participant’s name in Section 3(a) Group or a Subadviser Group, each in May 11, 2012. of the Plan; and (b) submit the executed the aggregate, becomes a holder of more Plan to the Commission. The Plan then Pursuant to Section 11A(a)(3) of the than 25% of the outstanding voting provides that such an amendment will securities of such Unaffiliated Securities Exchange Act of 1934 be effective when the amendment is 1 2 Underlying Fund, then the Group or the (‘‘Act’’) and Rule 608 thereunder, approved by the Commission or Subadviser Group (except for any notice is hereby given that on May 4, otherwise becomes effective pursuant to member of the Group or Subadviser 2012, BOX Options Exchange LLC Section 11A of the Act and Rule 608 Group that is a Separate Account) will (‘‘BOX Options’’ or ‘‘Exchange’’) filed thereunder. vote its shares of the Unaffiliated with the Securities and Exchange II. Effectiveness of the Proposed Underlying Fund in the same Commission (‘‘Commission’’) an Linkage Plan Amendment proportion as the vote of all other amendment to the Options Order holders of the Unaffiliated Underlying Protection and Locked/Crossed Market The foregoing proposed Plan Fund’s shares. This condition will not Plan (‘‘Plan’’).3 The amendment amendment has become effective apply to a Subadviser Group with proposes to add BOX Options as a pursuant to Rule 608(b)(3)(iii) of the respect to an Unaffiliated Underlying Participant 4 to the Plan. The Act 6 because it involves solely Fund for which the Fund of Funds Commission is publishing this notice to technical or ministerial matters. At any Subadviser or a person controlling, solicit comments on the proposed rule time within sixty days of the filing of controlled by or under common control change from interested persons. this amendment, the Commission may with the Fund of Funds Subadviser acts summarily abrogate the amendment and require that it be refiled pursuant to as the investment adviser within the 1 15 U.S.C. 78k–1(a)(3). 7 meaning of section 2(a)(20)(A) of the Act 2 17 CFR 242.608. paragraph (b)(1) of Rule 608, if it (in the case of an Unaffiliated Fund) or 3 On July 30, 2009, the Commission approved a appears to the Commission that such the sponsor (in the case of an national market system plan relating to Options Unaffiliated Trust). Order Protection and Locked/Crossed Markets 5 Section 2(6) of the Plan defines an ‘‘Eligible proposed by Chicago Board Options Exchange, Exchange’’ as a national securities exchange A Registered Separate Account will Incorporated (‘‘CBOE’’), International Securities registered with the Commission pursuant to Section seek voting instructions from its Exchange, LLC (‘‘ISE’’), The NASDAQ Stock Market 6(a) of the Act, 15 U.S.C. 78f(a), that: (a) Is a contract holders and will vote its shares LLC (‘‘Nasdaq’’), NASDAQ OMX BX, Inc. (‘‘BOX’’), ‘‘Participant Exchange’’ in the Options Clearing NASDAQ OMX PHLX, Inc. (‘‘Phlx’’), NYSE Amex, Corporation (‘‘OCC’’) (as defined in OCC By-laws, of an Unaffiliated Underlying Fund in LLC (‘‘NYSE Amex’’), and NYSE Arca, Inc. (‘‘NYSE Section VII); (b) is a party to the Options Price accordance with the instructions Arca’’). See Securities Exchange Act Release No. Reporting Authority (‘‘OPRA’’) Plan (as defined in received and will vote those shares for 60405 (July 30, 2009), 74 FR 39362 (August 6, the OPRA Plan, Section 1); and (c) if the national which no instructions were received in 2009). See also Securities Exchange Act Release securities exchange chooses not to become part to the same proportion as the shares for Nos. 61546 (February 19, 2010), 75 FR 8762 this Plan, is a participant in another plan approved (February 25, 2010) (adding BATS Exchange, Inc. by the Commission providing for comparable which instructions were received. An (‘‘BATS’’) as a Participant); 63119 (October 15, Trade-Through and Locked and Crossed Market Unregistered Separate Account will 2010), 75 FR 65536 (October 25, 2010) (adding C2 protection. BOX Options has represented that it has either (a) vote its shares of the Options Exchange, Incorporated (‘‘C2’’) as a met the requirements for being considered an Unaffiliated Underlying Fund in the Participant). Eligible Exchange. See letter from Lisa J. Fall, 4 The term ‘‘Participant’’ is defined as an Eligible President, BOX Options, to Elizabeth Murphy, same proportion as the vote of all other Exchange whose participation in the Plan has Secretary, Commission, dated May 3, 2012. holders of the Unaffiliated Underlying become effective pursuant to Section 3(c) of the 6 17 CFR 242.608(b)(3)(iii). Fund’s shares or (b) seek voting Plan. 7 17 CFR 242.608(b)(1).

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action is necessary or appropriate in the For the Commission, by the Division of II. Background 4 public interest, for the protection of Trading and Markets, pursuant to delegated a. The Exchange investors or the maintenance of fair and authority.8 orderly markets, to remove impediments Kevin M. O’Neill, The Exchange is registered as a to, and perfect the mechanisms of, a Deputy Secretary. national securities exchange under Section 6 of the Exchange Act.5 The national market system or otherwise in [FR Doc. 2012–11924 Filed 5–16–12; 8:45 am] furtherance of the purposes of the Act. Participants of the Exchange consist of BILLING CODE 8011–01–P broker-dealers registered with the III. Solicitation of Comments Exchange, as Participants, for the Interested persons are invited to purposes of participating in options SECURITIES AND EXCHANGE submit written data, views and trading. Participants are entitled to enter COMMISSION arguments concerning the foregoing, orders in, and receive executions including whether the amendment is through, the BOX Book or otherwise. consistent with the Act. Comments may [Release No. 34–66976] BOX, an options trading facility of the be submitted by any of the following Exchange under Section 3(a)(2) of the methods: Order Granting Application of BOX Exchange Act, will operate the BOX Options Exchange, LLC for a Limited Electronic Comments Book for orders with a continuous, Exemption From Exchange Act Rule • automated matching function, in Use the Commission’s Internet 10b–10(a)(2)(i)(A) Pursuant to Rule compliance with the Exchange’s rules comment form (http://www.sec.gov/ 10b–10(f) and Regulation NMS under the rules/sro.shtml); or Exchange Act (‘‘Regulation NMS’’).6 • Send an email to rule- May 11, 2012. Liquidity will be derived from orders to [email protected]. Please include File buy and orders to sell submitted to BOX Number 4–546 on the subject line. I. Introduction electronically by Participants from Paper Comments By letter dated May 11, 2012 (‘‘the remote locations. • Send paper comments in triplicate Application’’), BOX Options Exchange The BOX Book and the Exchange to Elizabeth M. Murphy, Secretary, LLC (the ‘‘Exchange’’) requests a limited rules provide for strict price-time Securities and Exchange Commission, exemption from the requirements of priority execution.7 Under Exchange 100 F Street NE., Washington, DC Rule 10b–10(a)(2)(i)(A) under the Rule 7130, orders will be prioritized on 20549–1090. Securities Exchange Act of 1934 a strict price-time basis, first by price All submissions should refer to File (‘‘Exchange Act’’) on behalf of its and then by time. Incoming orders will Number 4–546. This file number should Options Participants that execute trades be first matched for execution against be included on the subject line if email as agent for their customers orders in the BOX Book. Orders that is used. To help the Commission (‘‘Participants’’) 1 on BOX Market LLC, cannot be executed are eligible for 8 process and review your comments an options trading facility of the routing to away trading centers. All more efficiently, please use only one Exchange under Section 3(a)(2) of the trades will be executed through the method. The Commission will post all Exchange Act (‘‘BOX’’). As discussed in Trading System on an anonymous basis, 9 comments on the Commission’s Internet the Application, BOX will operate a except for Directed Orders. The Web site (http://www.sec.gov/rules/ fully automated electronic book (‘‘BOX transaction reports produced by the sro.shtml). Copies of the submission, all Book’’) for orders to buy or sell Trading System will indicate the details of transactions executed in the Trading subsequent amendments, all written securities (‘‘orders’’) with a continuous, System, but shall not reveal contra party statements with respect to the proposed automated matching function which identities. Transactions executed in the rule change that are filed with the will provide for strict price-time priority Commission, and all written 2 Trading System will also be cleared and execution (‘‘Trading System’’). The settled anonymously.10 communications relating to the BOX Book and the Exchange Rules proposed rule change between the provide for post trade anonymity 4 Commission and any person, other than Background information is derived from the through settlement for trades executed Application. those that may be withheld from the on BOX.3 5 The Exchange received approval of its public in accordance with the application for registration as a national securities provisions of 5 U.S.C. 552, will be exchange on April 27, 2012. See Securities available for Web site viewing and 8 17 CFR 200.30–3(a)(29). Exchange Act Release No. 66871 (April 27, 2012). 1 Exchange rules cited herein were approved as part printing in the Commission’s Public Unless otherwise defined in this order, defined of that application. terms used have the same meaning as described in Reference Room, 100 F Street NE., 6 See 17 CFR 242.600 et seq. the Exchange Rules. Washington, DC 20549, on official 7 See supra note 2. According to the Exchange, business days between the hours of 2 See Exchange Rule 7130. The Exchange notes executions through the PIP, as set forth in Exchange 10:00 a.m. and 3:00 p.m. Copies of such that executions through the Price Improvement Rules 7130 and 7150, are an exception to the price- Period (‘‘PIP’’) as set forth in Exchange Rule 7150 time priority execution that occurs on the BOX filing also will be available for are an exception to the strict price-time priority Book. inspection and copying at the principal execution that occurs on the BOX Book. 8 See Exchange Rule 15030. The Exchange office of BOX Options. All comments 3 As explained in the Application, the Exchange understands that the exemptive relief would not received will be posted without change; does not request an exemption from Rule 10b– apply to any situation in which the Trading System routes an order to all away trading centers for 10(a)(2)(i)(A) for when it reveals the identity of a the Commission does not edit personal execution, as such executions would be governed Participant or a Participant’s clearing firm: (i) For identifying information from by the rules of the away trading center. regulatory purposes or to comply with an order of submissions. You should submit only 9 See Exchange Rule 8040(d)(1). Directed Orders information that you wish to make a court or arbitrator; or (ii) when a Clearing on BOX are not anonymous. The identity of the Corporation or Clearing Participant (such as the available publicly. All submissions Participant sending the Directed Order is provided Options Clearing Corporation) ceases to act for a to the Market Maker recipient. As explained in the should refer to File Number 4–546 and Participant or the Participant’s clearing firm, and Application, Directed Orders would not be subject should be submitted on or before June determines not to guarantee the settlement of the to the requested relief. 7, 2012. Participant’s trades. 10 See Exchange Rule 7130(a)(6).

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The BOX Book’s matching system Participants would not be able to The General Counsel of the algorithm permits orders originated by a comply with the Contra-Party Identity Commission, or his designee, has Participant to execute against other Requirement of Rule 10b–10. To permit certified that, in his opinion, one or orders from the same Participant on the Participants to utilize BOX without more of the exemptions as set forth in same basis as orders from other violating Rule 10b–10, the Exchange, on 5 U.S.C. 552b(c)(4) and (8) and 17 CFR Participants. In the BOX Book’s behalf of such Participants, is seeking an 200.402(a)(4) and (8), permit handling of displayed orders, which is exemption under Rule 10b–10(f), from consideration of the scheduled matter at based on strict price-time priority, a the Contra-Party Identity Requirement the Closed Meeting. Certain staff Participant could receive an execution of Rule 10b–10 when Participants members who have an interest in the against itself, and under the Exchange’s execute transactions on BOX, as matter also may be present. Rules, the Participant would not know described in the Application. Commissioner Gallagher, as duty that it was the contra-side of the trade IV. Conclusion officer, voted to consider the item listed at the time of execution. BOX does, for the Closed Meeting in closed however, permit a Participant to prevent Based on the facts and representations session, and determined that no earlier its incoming orders from being executed contained in the Application, we find notice thereof was possible. against its own trading interest. that it is appropriate and in the public The subject matter of the May 15, Specifically, Participants have the interest and consistent with the 2012 Closed Meeting will be an ability to use Participant match trade protection of investors to grant the examination of a financial institution. prevention. A Participant may direct Exchange, on behalf of its Participants, that its Market Maker or Principal a limited exemption from the Contra- At times, changes in Commission Orders entered on BOX not execute Party Identity Requirement in Rule 10b– priorities require alterations in the against its own Market Maker quotes or 10(a)(2)(i)(A). scheduling of meeting items. For further orders, or its Principal Orders that are It is hereby ordered, pursuant to Rule information and to ascertain what, if resting on the BOX Book. In such a case, 10b–10(f) of the Exchange Act, that any, matters have been added, deleted the quantity of the incoming order that Exchange Participants, based on the or postponed, please contact the Office would otherwise trade against the representations and facts contained in of the Secretary at (202) 551–5400. quote/order from the same Participant the Application, are exempt from the Dated: May 15, 2012. will be cancelled back to the entering requirements of Rule 10b–10(a)(2)(i)(A) Kevin M. O’Neill, party.11 of the Exchange Act, to the extent that Deputy Secretary. b. Rule 10b–10 Participants execute trades for their [FR Doc. 2012–12093 Filed 5–15–12; 4:15 pm] customers on the Exchange using the Rule 10b–10 under the Exchange Act BILLING CODE 8011–01–P generally requires broker-dealers BOX Trading System. This exemption is effecting a customer transaction in limited to trades that Participants securities (other than U.S. savings bonds execute on BOX using the post trade SECURITIES AND EXCHANGE or municipal securities) 12 to provide a anonymity feature described in the COMMISSION 14 written notification to its customer, at or Application. Sunshine Act Meeting before completion of a securities The foregoing exemption is subject to modification or revocation if at any time transaction, that discloses information Notice is hereby given, pursuant to specific to the transaction. In particular, the Commission determines that such action is necessary or appropriate in the provisions of the Government in the under Rule 10b–10(a)(2)(i)(A), when a Sunshine Act, Public Law 94–409, that broker-dealer acts as agent for a furtherance of the purposes of the Exchange Act. the Securities and Exchange customer, some other person, or for both Commission held a Closed Meeting on the customer and some other person, the For the Commission, by the Division of Saturday, May 12, 2012 at 11:00 a.m. broker-dealer must disclose ‘‘[t]he name Trading and Markets, pursuant to delegated of the person from whom the security authority.15 The General Counsel of the was purchased, or to whom it was sold, Kevin M. O’Neill, Commission, or his designee, has for such customer or the fact that the Deputy Secretary. certified that, in his opinion, one or information will be furnished upon more of the exemptions as set forth in [FR Doc. 2012–11931 Filed 5–16–12; 8:45 am] 5 U.S.C. 552b(c)(4) and (8) and 17 CFR written request of such customer’’ (the BILLING CODE 8011–01–P ‘‘Contra-Party Identity Requirement’’). 200.402(a)(4) and (8), permit consideration of the scheduled matter at III. Relief Sought SECURITIES AND EXCHANGE the Closed Meeting. Certain staff As explained in the Application, COMMISSION members who have an interest in the trades are executed with total matter also were present. anonymity on BOX, where the identity Sunshine Act Meeting Commissioner Gallagher, as duty of the actual contra-party is not revealed officer, voted to consider the item listed when the trade is executed, except with Notice is hereby given, pursuant to for the Closed Meeting in closed respect to Directed Orders.13 Because of the provisions of the Government in the session, and determined that no earlier this, Participants will not know the Sunshine Act, Public Law 94–409, that notice thereof was possible. the Securities and Exchange identity of the party to whom they sold The subject matter of the May 12, Commission will hold a Closed Meeting securities or from whom they purchased 2012 Closed Meeting was an on Tuesday, May 15, 2012 at 2:00 p.m. securities. Without this information, examination of a financial institution.

11 See Exchange Rule 7130(a)(4). 14 This exemption does not apply: (a) To orders Dated: May 14, 2012. 12 Municipal securities are subject to the routed to an away trading center for execution; (b) Kevin M. O’Neill, transaction confirmations requirements under Rule to Directed Orders; (c) under the situation described Deputy Secretary. G–15 of the Municipal Securities Rulemaking in note 3 supra; or (d) to the situation described in Board. note 13 of the Application. [FR Doc. 2012–12020 Filed 5–15–12; 11:15 am] 13 See supra note 9. 15 17 CFR 200.30–3(32). BILLING CODE 8011–01–P

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SECURITIES AND EXCHANGE concerning the securities of Ainslie have arisen as to its operating status, if COMMISSION Corp. because questions have arisen as any. Asante Technologies, Inc. is quoted to its operating status, if any. Ainslie on OTC Link operated by OTC Markets [File No. 500–1] Corp. is quoted on OTC Link operated Group, Inc. under the ticker symbol by OTC Markets Group, Inc. under the ‘‘ASNL.’’ Order of Suspension of Trading; In the ticker symbol ‘‘ANSE.’’ It appears to the Securities and Matter of 1–800–ATTORNEY, Inc., et al. It appears to the Securities and Exchange Commission that there is a May 14, 2012. Exchange Commission that there is a lack of current and accurate information It appears to the Securities and lack of current and accurate information concerning the securities of ASFG, Inc. Exchange Commission that there is a concerning the securities of American because questions have arisen as to its lack of current and accurate information Cattle Co., Inc. because questions have operating status, if any. ASFG, Inc. is concerning the securities of 1–800– arisen as to its operating status, if any. quoted on OTC Link operated by OTC ATTORNEY, Inc. because questions American Cattle Co., Inc. is quoted on Markets Group, Inc. under the ticker have arisen as to its operating status, if OTC Link operated by OTC Markets symbol ‘‘ASFJ.’’ It appears to the Securities and any. 1–800–ATTORNEY, Inc. is quoted Group, Inc. under the ticker symbol Exchange Commission that there is a on OTC Link operated by OTC Markets ‘‘ALCC.’’ It appears to the Securities and lack of current and accurate information Group, Inc. under the ticker symbol Exchange Commission that there is a concerning the securities of Asia Pacific ‘‘ATTY.’’ lack of current and accurate information Engineering Solutions International, Inc. It appears to the Securities and concerning the securities of American because questions have arisen as to its Exchange Commission that there is a Interactive Media, Inc. because operating status, if any. Asia Pacific lack of current and accurate information questions have arisen as to its operating Engineering Solutions International, Inc. concerning the securities of Accessible status, if any. American Interactive is quoted on OTC Link operated by OTC Software Inc. because questions have Media, Inc. is quoted on OTC Link Markets Group, Inc. under the ticker arisen as to its operating status, if any. operated by OTC Markets Group, Inc. symbol ‘‘APCI.’’ Accessible Software Inc. is quoted on under the ticker symbol ‘‘AIME.’’ It appears to the Securities and OTC Link operated by OTC Markets It appears to the Securities and Exchange Commission that there is a Group, Inc. under the ticker symbol Exchange Commission that there is a lack of current and accurate information ‘‘ASWE.’’ lack of current and accurate information concerning the securities of Atlantic It appears to the Securities and concerning the securities of AmeriStar Central Enterprise Ltd. because Exchange Commission that there is a International Holdings Corp. because questions have arisen as to its operating lack of current and accurate information questions have arisen as to its operating status, if any. Atlantic Central concerning the securities of Accom, Inc. status, if any. AmeriStar International Enterprise Ltd. is quoted on OTC Link because questions have arisen as to its Holdings Corp. is quoted on OTC Link operated by OTC Markets Group, Inc. operating status, if any. Accom, Inc. is operated by OTC Markets Group, Inc. under the ticker symbol ‘‘ALCN.’’ quoted on OTC Link operated by OTC under the ticker symbol ‘‘AIHC.’’ It appears to the Securities and Markets Group, Inc. under the ticker It appears to the Securities and Exchange Commission that there is a symbol ‘‘ACMM.’’ Exchange Commission that there is a lack of current and accurate information It appears to the Securities and lack of current and accurate information concerning the securities of ATM Exchange Commission that there is a concerning the securities of Angeles Capitol Co. because questions have lack of current and accurate information Corp. because questions have arisen as arisen as to its operating status, if any. concerning the securities of AccuHealth, to its operating status, if any. Angeles ATM Capitol Co. is quoted on OTC Link Inc. because questions have arisen as to Corp. is quoted on OTC Link operated operated by OTC Markets Group, Inc. its operating status, if any. AccuHealth, by OTC Markets Group, Inc. under the under the ticker symbol ‘‘ATMA.’’ Inc. is quoted on OTC Link operated by ticker symbol ‘‘ANGC.’’ It appears to the Securities and OTC Markets Group, Inc. under the It appears to the Securities and Exchange Commission that there is a ticker symbol ‘‘AHLHQ.’’ Exchange Commission that there is a lack of current and accurate information It appears to the Securities and lack of current and accurate information concerning the securities of Avatex Exchange Commission that there is a concerning the securities of Aprogenex, Corp. because questions have arisen as lack of current and accurate information Inc. because questions have arisen as to to its operating status, if any. Avatex concerning the securities of Adaptive its operating status, if any. Aprogenex, Corp. is quoted on OTC Link operated Solutions, Inc. because questions have Inc. is quoted on OTC Link operated by by OTC Markets Group, Inc. under the arisen as to its operating status, if any. OTC Markets Group, Inc. under the ticker symbol ‘‘AVATQ.’’ Adaptive Solutions, Inc. is quoted on ticker symbol ‘‘APGX.’’ It appears to the Securities and OTC Link operated by OTC Markets It appears to the Securities and Exchange Commission that there is a Group, Inc. under the ticker symbol Exchange Commission that there is a lack of current and accurate information ‘‘ADPVQ.’’ lack of current and accurate information concerning the securities of Avisana It appears to the Securities and concerning the securities of Ardent Corp. because questions have arisen as Exchange Commission that there is a Communications, Inc. because questions to its operating status, if any. Avisana lack of current and accurate information have arisen as to its operating status, if Corp. is quoted on OTC Link operated concerning the securities of AHSI, Inc. any. Ardent Communications, Inc. is by OTC Markets Group, Inc. under the because questions have arisen as to its quoted on OTC Link operated by OTC ticker symbol ‘‘AVSA.’’ operating status, if any. AHSI, Inc. is Markets Group, Inc. under the ticker It appears to the Securities and quoted on OTC Link operated by OTC symbol ‘‘ARDTQ.’’ Exchange Commission that there is a Markets Group, Inc. under the ticker It appears to the Securities and lack of current and accurate information symbol ‘‘AHSI.’’ Exchange Commission that there is a concerning the securities of Axtive It appears to the Securities and lack of current and accurate information Corporation because questions have Exchange Commission that there is a concerning the securities of Asante arisen as to its operating status, if any. lack of current and accurate information Technologies, Inc. because questions Axtive Corporation is quoted on OTC

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Link operated by OTC Markets Group, It appears to the Securities and Media Group Ltd. because questions Inc. under the ticker symbol ‘‘AXTC.’’ Exchange Commission that there is a have arisen as to its operating status, if It appears to the Securities and lack of current and accurate information any. Capital Media Group Ltd. is quoted Exchange Commission that there is a concerning the securities of BMJ on OTC Link operated by OTC Markets lack of current and accurate information Medical Management, Inc. because Group, Inc. under the ticker symbol concerning the securities of questions have arisen as to its operating ‘‘CPMG.’’ Batterymarch Trust because questions status, if any. BMJ Medical It appears to the Securities and have arisen as to its operating status, if Management, Inc. is quoted on OTC Exchange Commission that there is a any. Batterymarch Trust is quoted on Link operated by OTC Markets Group, lack of current and accurate information OTC Link operated by OTC Markets Inc. under the ticker symbol ‘‘BONSQ.’’ concerning the securities of Capitol First Group, Inc. under the ticker symbol It appears to the Securities and Corp. because questions have arisen as ‘‘BTYM.’’ Exchange Commission that there is a to its operating status, if any. Capitol It appears to the Securities and lack of current and accurate information First Corp. is quoted on OTC Link Exchange Commission that there is a concerning the securities of Bon Coeur, operated by OTC Markets Group, Inc. lack of current and accurate information Inc. because questions have arisen as to under the ticker symbol ‘‘CFCO.’’ concerning the securities of Bedford its operating status, if any. Bon Coeur, It appears to the Securities and Holdings, Inc. because questions have Inc. is quoted on OTC Link operated by Exchange Commission that there is a arisen as to its operating status, if any. OTC Markets Group, Inc. under the lack of current and accurate information Bedford Holdings, Inc. is quoted on ticker symbol ‘‘BOCU.’’ concerning the securities of Cartis, Inc. OTC Link operated by OTC Markets It appears to the Securities and because questions have arisen as to its Group, Inc. under the ticker symbol Exchange Commission that there is a operating status, if any. Cartis, Inc. is ‘‘BFHI.’’ lack of current and accurate information quoted on OTC Link operated by OTC It appears to the Securities and concerning the securities of BRIAZZ, Markets Group, Inc. under the ticker Exchange Commission that there is a Inc. because questions have arisen as to symbol ‘‘CARI.’’ lack of current and accurate information its operating status, if any. BRIAZZ, Inc. It appears to the Securities and concerning the securities of Beijing is quoted on OTC Link operated by OTC Exchange Commission that there is a Logistic, Inc. because questions have Markets Group, Inc. under the ticker lack of current and accurate information arisen as to its operating status, if any. symbol ‘‘BRZZQ.’’ concerning the securities of CCI Group, Beijing Logistic, Inc. is quoted on OTC It appears to the Securities and Inc. because questions have arisen as to Link operated by OTC Markets Group, Exchange Commission that there is a its operating status, if any. CCI Group, Inc. under the ticker symbol ‘‘BJGL.’’ lack of current and accurate information Inc. is quoted on OTC Link operated by It appears to the Securities and concerning the securities of Buffalo, Inc. OTC Markets Group, Inc. under the Exchange Commission that there is a because questions have arisen as to its ticker symbol ‘‘CCIG.’’ lack of current and accurate information operating status, if any. Buffalo, Inc. is It appears to the Securities and concerning the securities of Belle Isle quoted on OTC Link operated by OTC Exchange Commission that there is a Corp. because questions have arisen as Markets Group, Inc. under the ticker lack of current and accurate information to its operating status, if any. Belle Isle symbol ‘‘BUFO.’’ concerning the securities of Centra Corp. is quoted on OTC Link operated It appears to the Securities and Capital Corp. because questions have by OTC Markets Group, Inc. under the Exchange Commission that there is a arisen as to its operating status, if any. ticker symbol ‘‘BILSU.’’ lack of current and accurate information Centra Capital Corp. is quoted on OTC It appears to the Securities and concerning the securities of Burr Oak Link operated by OTC Markets Group, Exchange Commission that there is a Coal Corp. because questions have Inc. under the ticker symbol ‘‘CENC.’’ lack of current and accurate information arisen as to its operating status, if any. It appears to the Securities and concerning the securities of Ben Ezra, Burr Oak Coal Corp. is quoted on OTC Exchange Commission that there is a Weinstein & Co. because questions have Link operated by OTC Markets Group, lack of current and accurate information arisen as to its operating status, if any. Inc. under the ticker symbol ‘‘BOAK.’’ concerning the securities of CES Ben Ezra, Weinstein & Co. is quoted on It appears to the Securities and International, Inc. because questions OTC Link operated by OTC Markets Exchange Commission that there is a have arisen as to its operating status, if Group, Inc. under the ticker symbol lack of current and accurate information any. CES International, Inc. is quoted on ‘‘BNEZ.’’ concerning the securities of Cabo Group, OTC Link operated by OTC Markets It appears to the Securities and Ltd. (The) because questions have arisen Group, Inc. under the ticker symbol Exchange Commission that there is a as to its operating status, if any. Cabo ‘‘CSNL.’’ lack of current and accurate information Group, Ltd. (The) is quoted on OTC It appears to the Securities and concerning the securities of Bestway Link operated by OTC Markets Group, Exchange Commission that there is a Coach Express, Inc. because questions Inc. under the ticker symbol ‘‘CGLT.’’ lack of current and accurate information have arisen as to its operating status, if It appears to the Securities and concerning the securities of any. Bestway Coach Express, Inc. is Exchange Commission that there is a Chambersburg Engineering Co. because quoted on OTC Link operated by OTC lack of current and accurate information questions have arisen as to its operating Markets Group, Inc. under the ticker concerning the securities of status, if any. Chambersburg symbol ‘‘BWCX.’’ CallNOW.com, Inc. because questions Engineering Co. is quoted on OTC Link It appears to the Securities and have arisen as to its operating status, if operated by OTC Markets Group, Inc. Exchange Commission that there is a any. CallNOW.com, Inc. is quoted on under the ticker symbol ‘‘CEGR.’’ lack of current and accurate information OTC Link operated by OTC Markets It appears to the Securities and concerning the securities of Biomedtex, Group, Inc. under the ticker symbol Exchange Commission that there is a Inc. because questions have arisen as to ‘‘CALN.’’ lack of current and accurate information its operating status, if any. Biomedtex, It appears to the Securities and concerning the securities of Chariot Inc. is quoted on OTC Link operated by Exchange Commission that there is a Group, Inc. because questions have OTC Markets Group, Inc. under the lack of current and accurate information arisen as to its operating status, if any. ticker symbol ‘‘BMDX.’’ concerning the securities of Capital Chariot Group, Inc. is quoted on OTC

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Link operated by OTC Markets Group, operated by OTC Markets Group, Inc. operated by OTC Markets Group, Inc. Inc. under the ticker symbol ‘‘CGRU.’’ under the ticker symbol ‘‘CIAQQ.’’ under the ticker symbol ‘‘CMTI.’’ It appears to the Securities and It appears to the Securities and It appears to the Securities and Exchange Commission that there is a Exchange Commission that there is a Exchange Commission that there is a lack of current and accurate information lack of current and accurate information lack of current and accurate information concerning the securities of Chemicorp concerning the securities of Clarent concerning the securities of Computer International, Inc. because questions Corp. because questions have arisen as Learning Centers, Inc. because questions have arisen as to its operating status, if to its operating status, if any. Clarent have arisen as to its operating status, if any. Chemicorp International, Inc. is Corp. is quoted on OTC Link operated any. Computer Learning Centers, Inc. is quoted on OTC Link operated by OTC by OTC Markets Group, Inc. under the quoted on OTC Link operated by OTC Markets Group, Inc. under the ticker ticker symbol ‘‘CLRN.’’ Markets Group, Inc. under the ticker symbol ‘‘CHEM.’’ It appears to the Securities and symbol ‘‘CLCXQ.’’ It appears to the Securities and Exchange Commission that there is a It appears to the Securities and Exchange Commission that there is a lack of current and accurate information Exchange Commission that there is a lack of current and accurate information concerning the securities of Clinicorp, lack of current and accurate information concerning the securities of Chemtrak, Inc. because questions have arisen as to concerning the securities of Inc. because questions have arisen as to its operating status, if any. Clinicorp, Computerized Thermal Imaging, Inc. its operating status, if any. Chemtrak, Inc. is quoted on OTC Link operated by because questions have arisen as to its Inc. is quoted on OTC Link operated by OTC Markets Group, Inc. under the operating status, if any. Computerized OTC Markets Group, Inc. under the ticker symbol ‘‘CLNI.’’ Thermal Imaging, Inc. is quoted on OTC ticker symbol ‘‘CTKI.’’ It appears to the Securities and Link operated by OTC Markets Group, Inc. under the ticker symbol ‘‘COIB.’’ It appears to the Securities and Exchange Commission that there is a It appears to the Securities and Exchange Commission that there is a lack of current and accurate information Exchange Commission that there is a concerning the securities of CNF lack of current and accurate information lack of current and accurate information concerning the securities of China Cable Technologies, Inc. because questions concerning the securities of Condor & Communication, Inc. because have arisen as to its operating status, if Technology Solutions, Inc. because questions have arisen as to its operating any. CNF Technologies, Inc. is quoted questions have arisen as to its operating status, if any. China Cable & on OTC Link operated by OTC Markets status, if any. Condor Technology Communication, Inc. is quoted on OTC Group, Inc. under the ticker symbol Solutions, Inc. is quoted on OTC Link Link operated by OTC Markets Group, ‘‘CNFT.’’ operated by OTC Markets Group, Inc. Inc. under the ticker symbol ‘‘CCCI.’’ It appears to the Securities and under the ticker symbol ‘‘CTSI.’’ It appears to the Securities and Exchange Commission that there is a It appears to the Securities and Exchange Commission that there is a lack of current and accurate information Exchange Commission that there is a lack of current and accurate information concerning the securities of Columbia lack of current and accurate information concerning the securities of China Management Co. because questions have concerning the securities of Continental TianRen Organic Food, Inc. because arisen as to its operating status, if any. Information Systems Corp. because questions have arisen as to its operating Columbia Management Co. is quoted on questions have arisen as to its operating status, if any. China TianRen Organic OTC Link operated by OTC Markets status, if any. Continental Information Food, Inc. is quoted on OTC Link Group, Inc. under the ticker symbol Systems Corp. is quoted on OTC Link operated by OTC Markets Group, Inc. ‘‘CLMB.’’ operated by OTC Markets Group, Inc. under the ticker symbol ‘‘CTRI.’’ It appears to the Securities and under the ticker symbol ‘‘CISC.’’ It appears to the Securities and Exchange Commission that there is a It appears to the Securities and Exchange Commission that there is a lack of current and accurate information Exchange Commission that there is a lack of current and accurate information concerning the securities of Columbia lack of current and accurate information concerning the securities of Ventures, Inc. because questions have concerning the securities of Conversion ChinaMallUSA.com, Inc. because arisen as to its operating status, if any. Industries, Inc. because questions have questions have arisen as to its operating Columbia Ventures, Inc. is quoted on arisen as to its operating status, if any. status, if any. ChinaMallUSA.com, Inc. OTC Link operated by OTC Markets Conversion Industries, Inc. is quoted on is quoted on OTC Link operated by OTC Group, Inc. under the ticker symbol OTC Link operated by OTC Markets Markets Group, Inc. under the ticker ‘‘COVE.’’ Group, Inc. under the ticker symbol symbol ‘‘CHML.’’ It appears to the Securities and ‘‘CVII.’’ It appears to the Securities and Exchange Commission that there is a It appears to the Securities and Exchange Commission that there is a lack of current and accurate information Exchange Commission that there is a lack of current and accurate information concerning the securities of lack of current and accurate information concerning the securities of Christian Commonwealth Oil Refining Co., Inc. concerning the securities of Country Brothers, Inc. because questions have because questions have arisen as to its Maid Financial, Inc. because questions arisen as to its operating status, if any. operating status, if any. Commonwealth have arisen as to its operating status, if Christian Brothers, Inc. is quoted on Oil Refining Co., Inc. is quoted on OTC any. Country Maid Financial, Inc. is OTC Link operated by OTC Markets Link operated by OTC Markets Group, quoted on OTC Link operated by OTC Group, Inc. under the ticker symbol Inc. under the ticker symbol ‘‘CWLO.’’ Markets Group, Inc. under the ticker ‘‘CHBI.’’ It appears to the Securities and symbol ‘‘CMFI.’’ It appears to the Securities and Exchange Commission that there is a It appears to the Securities and Exchange Commission that there is a lack of current and accurate information Exchange Commission that there is a lack of current and accurate information concerning the securities of Community lack of current and accurate information concerning the securities of Ciao Cucina Medical Transport, Inc. because concerning the securities of C–Phone Corp. because questions have arisen as questions have arisen as to its operating Corp. because questions have arisen as to its operating status, if any. Ciao status, if any. Community Medical to its operating status, if any. C–Phone Cucina Corp. is quoted on OTC Link Transport, Inc. is quoted on OTC Link Corp. is quoted on OTC Link operated

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by OTC Markets Group, Inc. under the It appears to the Securities and It appears to the Securities and ticker symbol ‘‘CFON.’’ Exchange Commission that there is a Exchange Commission that there is a It appears to the Securities and lack of current and accurate information lack of current and accurate information Exchange Commission that there is a concerning the securities of Crown concerning the securities of Digital lack of current and accurate information Financial Holdings, Inc. because Armor Inc. because questions have concerning the securities of Cray questions have arisen as to its operating arisen as to its operating status, if any. Computer Corp. because questions have status, if any. Crown Financial Digital Armor Inc. is quoted on OTC arisen as to its operating status, if any. Holdings, Inc. is quoted on OTC Link Link operated by OTC Markets Group, Cray Computer Corp. is quoted on OTC operated by OTC Markets Group, Inc. Inc. under the ticker symbol ‘‘DTALQ.’’ Link operated by OTC Markets Group, under the ticker symbol ‘‘CFGI.’’ It appears to the Securities and Inc. under the ticker symbol ‘‘CRYYQ.’’ It appears to the Securities and Exchange Commission that there is a It appears to the Securities and Exchange Commission that there is a lack of current and accurate information Exchange Commission that there is a lack of current and accurate information concerning the securities of DNA lack of current and accurate information concerning the securities of CTI Medical Technologies, Inc. because concerning the securities of Creative Technology, Inc. because questions have questions have arisen as to its operating Gourmet, Inc. because questions have arisen as to its operating status, if any. status, if any. DNA Medical arisen as to its operating status, if any. CTI Technology, Inc. is quoted on OTC Technologies, Inc. is quoted on OTC Creative Gourmet, Inc. is quoted on OTC Link operated by OTC Markets Group, Link operated by OTC Markets Group, Link operated by OTC Markets Group, Inc. under the ticker symbol ‘‘CTIT.’’ Inc. under the ticker symbol ‘‘DNAT.’’ Inc. under the ticker symbol ‘‘CGOM.’’ It appears to the Securities and It appears to the Securities and It appears to the Securities and Exchange Commission that there is a Exchange Commission that there is a lack of current and accurate information Exchange Commission that there is a lack of current and accurate information concerning the securities of dot1Web, lack of current and accurate information concerning the securities of Inc. because questions have arisen as to concerning the securities of Credit CybeRecord, Inc. because questions its operating status, if any. Dot1Web, Depot Corp. because questions have have arisen as to its operating status, if Inc. is quoted on OTC Link operated by arisen as to its operating status, if any. any. CybeRecord, Inc. is quoted on OTC OTC Markets Group, Inc. under the Credit Depot Corp. is quoted on OTC Link operated by OTC Markets Group, ticker symbol ‘‘DTWB.’’ Link operated by OTC Markets Group, Inc. under the ticker symbol ‘‘CYRD.’’ It appears to the Securities and Inc. under the ticker symbol ‘‘CDDJ.’’ It appears to the Securities and Exchange Commission that there is a It appears to the Securities and Exchange Commission that there is a lack of current and accurate information Exchange Commission that there is a lack of current and accurate information concerning the securities of dotwap.com lack of current and accurate information concerning the securities of Data Holdings Corp. because questions have concerning the securities of Crowley Systems of Oregon because questions arisen as to its operating status, if any. Maritime Corp. because questions have have arisen as to its operating status, if Dotwap.com Holdings Corp. is quoted arisen as to its operating status, if any. any. Data Systems of Oregon is quoted on OTC Link operated by OTC Markets Crowley Maritime Corp. is quoted on on OTC Link operated by OTC Markets Group, Inc. under the ticker symbol OTC Link operated by OTC Markets Group, Inc. under the ticker symbol ‘‘DWAP.’’ Group, Inc. under the ticker symbol ‘‘DSTO.’’ It appears to the Securities and ‘‘CWLM.’’ It appears to the Securities and Exchange Commission that there is a It appears to the Securities and Exchange Commission that there is a lack of current and accurate information Exchange Commission that there is a lack of current and accurate information concerning the securities of DualStar lack of current and accurate information concerning the securities of Datatrend Technologies Corp. because questions concerning the securities of Crowley Services, Inc. because questions have have arisen as to its operating status, if Milner & Company because questions arisen as to its operating status, if any. any. DualStar Technologies Corp. is have arisen as to its operating status, if Datatrend Services, Inc. is quoted on quoted on OTC Link operated by OTC any. Crowley Milner & Company is OTC Link operated by OTC Markets Markets Group, Inc. under the ticker quoted on OTC Link operated by OTC Group, Inc. under the ticker symbol symbol ‘‘DSTR.’’ Markets Group, Inc. under the ticker ‘‘DATV.’’ It appears to the Securities and symbol ‘‘CWYM.’’ It appears to the Securities and Exchange Commission that there is a It appears to the Securities and Exchange Commission that there is a lack of current and accurate information Exchange Commission that there is a lack of current and accurate information concerning the securities of Duncan Hill lack of current and accurate information concerning the securities of Defense Co., Ltd. because questions have arisen concerning the securities of Crown Technology Systems, Inc. because as to its operating status, if any. Duncan Andersen Inc. because questions have questions have arisen as to its operating Hill Co., Ltd. is quoted on OTC Link arisen as to its operating status, if any. status, if any. Defense Technology operated by OTC Markets Group, Inc. Crown Andersen Inc. is quoted on OTC Systems, Inc. is quoted on OTC Link under the ticker symbol ‘‘DUNC.’’ Link operated by OTC Markets Group, operated by OTC Markets Group, Inc. It appears to the Securities and Inc. under the ticker symbol ‘‘CRAN.’’ under the ticker symbol ‘‘DFTS.’’ Exchange Commission that there is a It appears to the Securities and It appears to the Securities and lack of current and accurate information Exchange Commission that there is a Exchange Commission that there is a concerning the securities of Dunes Hotel lack of current and accurate information lack of current and accurate information & Casinos, Inc. because questions have concerning the securities of Crown City concerning the securities of Design arisen as to its operating status, if any. Plating Co. because questions have Media Technology, Inc. because Dunes Hotel & Casinos, Inc. is quoted on arisen as to its operating status, if any. questions have arisen as to its operating OTC Link operated by OTC Markets Crown City Plating Co. is quoted on status, if any. Design Media Technology, Group, Inc. under the ticker symbol OTC Link operated by OTC Markets Inc. is quoted on OTC Link operated by ‘‘DUNE.’’ Group, Inc. under the ticker symbol OTC Markets Group, Inc. under the It appears to the Securities and ‘‘CCPGQ.’’ ticker symbol ‘‘DMTK.’’ Exchange Commission that there is a

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lack of current and accurate information concerning the securities of Elsinore any. ETI International, Inc. is quoted on concerning the securities of Dynamic Corp. because questions have arisen as OTC Link operated by OTC Markets Leisure Corp. because questions have to its operating status, if any. Elsinore Group, Inc. under the ticker symbol arisen as to its operating status, if any. Corp. is quoted on OTC Link operated ‘‘ETIC.’’ Dynamic Leisure Corp. is quoted on by OTC Markets Group, Inc. under the It appears to the Securities and OTC Link operated by OTC Markets ticker symbol ‘‘ELSO.’’ Exchange Commission that there is a Group, Inc. under the ticker symbol It appears to the Securities and lack of current and accurate information ‘‘DYLI.’’ Exchange Commission that there is a concerning the securities of Excal It appears to the Securities and lack of current and accurate information Enterprises, Inc. because questions have Exchange Commission that there is a concerning the securities of Emergisoft arisen as to its operating status, if any. lack of current and accurate information Holding, Inc. because questions have Excal Enterprises, Inc. is quoted on OTC concerning the securities of EAC arisen as to its operating status, if any. Link operated by OTC Markets Group, Industries, Inc. because questions have Emergisoft Holding, Inc. is quoted on Inc. under the ticker symbol ‘‘EXCL.’’ arisen as to its operating status, if any. OTC Link operated by OTC Markets It appears to the Securities and EAC Industries, Inc. is quoted on OTC Group, Inc. under the ticker symbol Exchange Commission that there is a Link operated by OTC Markets Group, ‘‘ESHG.’’ lack of current and accurate information Inc. under the ticker symbol ‘‘EACI.’’ It appears to the Securities and concerning the securities of Fastlane It appears to the Securities and Exchange Commission that there is a Footwear, Inc. because questions have Exchange Commission that there is a lack of current and accurate information arisen as to its operating status, if any. lack of current and accurate information concerning the securities of E– Fastlane Footwear, Inc. is quoted on concerning the securities of Eagle-Picher Monee.com, Inc. because questions have OTC Link operated by OTC Markets Industries, Inc. because questions have arisen as to its operating status, if any. Group, Inc. under the ticker symbol arisen as to its operating status, if any. E–Monee.com, Inc. is quoted on OTC ‘‘FSLF.’’ Link operated by OTC Markets Group, Eagle-Picher Industries, Inc. is quoted It appears to the Securities and on OTC Link operated by OTC Markets Inc. under the ticker symbol ‘‘EMNC.’’ Exchange Commission that there is a Group, Inc. under the ticker symbol It appears to the Securities and lack of current and accurate information ‘‘EGLP.’’ Exchange Commission that there is a It appears to the Securities and lack of current and accurate information concerning the securities of Firamada Exchange Commission that there is a concerning the securities of Enerphaze Inc. because questions have arisen as to lack of current and accurate information Corp. because questions have arisen as its operating status, if any. Firamada concerning the securities of eChapman, to its operating status, if any. Enerphaze Inc. is quoted on OTC Link operated by Inc. because questions have arisen as to Corp. is quoted on OTC Link operated OTC Markets Group, Inc. under the its operating status, if any. eChapman, by OTC Markets Group, Inc. under the ticker symbol ‘‘FAMH.’’ Inc. is quoted on OTC Link operated by ticker symbol ‘‘EPHZ.’’ It appears to the Securities and OTC Markets Group, Inc. under the It appears to the Securities and Exchange Commission that there is a ticker symbol ‘‘ECMN.’’ Exchange Commission that there is a lack of current and accurate information It appears to the Securities and lack of current and accurate information concerning the securities of Firebrand Exchange Commission that there is a concerning the securities of Enhance Financial Group, Inc. because questions lack of current and accurate information Biotech, Inc. because questions have have arisen as to its operating status, if concerning the securities of EGM arisen as to its operating status, if any. any. Firebrand Financial Group, Inc. is International, Inc. because questions Enhance Biotech, Inc. is quoted on OTC quoted on OTC Link operated by OTC have arisen as to its operating status, if Link operated by OTC Markets Group, Markets Group, Inc. under the ticker any. EGM International, Inc. is quoted Inc. under the ticker symbol ‘‘EBOI.’’ symbol ‘‘FFGI.’’ on OTC Link operated by OTC Markets It appears to the Securities and It appears to the Securities and Group, Inc. under the ticker symbol Exchange Commission that there is a Exchange Commission that there is a ‘‘EGML.’’ lack of current and accurate information lack of current and accurate information It appears to the Securities and concerning the securities of Enviro concerning the securities of First Look Exchange Commission that there is a Global Corp. because questions have Media, Inc. because questions have lack of current and accurate information arisen as to its operating status, if any. arisen as to its operating status, if any. concerning the securities of Electro Enviro Global Corp. is quoted on OTC First Look Media, Inc. is quoted on OTC Brain International Corp. because Link operated by OTC Markets Group, Link operated by OTC Markets Group, questions have arisen as to its operating Inc. under the ticker symbol ‘‘ENVG.’’ Inc. under the ticker symbol ‘‘FRST.’’ status, if any. Electro Brain International It appears to the Securities and It appears to the Securities and Corp. is quoted on OTC Link operated Exchange Commission that there is a Exchange Commission that there is a by OTC Markets Group, Inc. under the lack of current and accurate information lack of current and accurate information ticker symbol ‘‘EBIC.’’ concerning the securities of concerning the securities of First It appears to the Securities and Environmental Asset Management Inc. Medical Group, Inc. because questions Exchange Commission that there is a because questions have arisen as to its have arisen as to its operating status, if lack of current and accurate information operating status, if any. Environmental any. First Medical Group, Inc. is quoted concerning the securities of Electronic Asset Management Inc. is quoted on on OTC Link operated by OTC Markets Transmission Corp. because questions OTC Link operated by OTC Markets Group, Inc. under the ticker symbol have arisen as to its operating status, if Group, Inc. under the ticker symbol ‘‘FMDG.’’ any. Electronic Transmission Corp. is ‘‘EVAM.’’ It appears to the Securities and quoted on OTC Link operated by OTC It appears to the Securities and Exchange Commission that there is a Markets Group, Inc. under the ticker Exchange Commission that there is a lack of current and accurate information symbol ‘‘ETSM.’’ lack of current and accurate information concerning the securities of First Sun It appears to the Securities and concerning the securities of ETI South Corp. because questions have Exchange Commission that there is a International, Inc. because questions arisen as to its operating status, if any. lack of current and accurate information have arisen as to its operating status, if First Sun South Corp. is quoted on OTC

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Link operated by OTC Markets Group, It appears to the Securities and It appears to the Securities and Inc. under the ticker symbol ‘‘FSSU.’’ Exchange Commission that there is a Exchange Commission that there is a It appears to the Securities and lack of current and accurate information lack of current and accurate information Exchange Commission that there is a concerning the securities of General concerning the securities of Grant lack of current and accurate information Broadcasting Inc. because questions Enterprise, Ltd. because questions have concerning the securities of Florida have arisen as to its operating status, if arisen as to its operating status, if any. Development Fund (1995), Inc. because any. General Broadcasting Inc. is quoted Grant Enterprise, Ltd. is quoted on OTC questions have arisen as to its operating on OTC Link operated by OTC Markets Link operated by OTC Markets Group, status, if any. Florida Development Group, Inc. under the ticker symbol Inc. under the ticker symbol ‘‘GRET.’’ Fund (1995), Inc. is quoted on OTC Link ‘‘GNBR.’’ It appears to the Securities and operated by OTC Markets Group, Inc. It appears to the Securities and Exchange Commission that there is a under the ticker symbol ‘‘FLDV.’’ Exchange Commission that there is a lack of current and accurate information It appears to the Securities and lack of current and accurate information concerning the securities of Great Train Exchange Commission that there is a concerning the securities of General Store Co. (The) because questions have lack of current and accurate information Store International Corp. (The) because arisen as to its operating status, if any. concerning the securities of Florida questions have arisen as to its operating Great Train Store Co. (The) is quoted on Partners Corp. because questions have status, if any. General Store OTC Link operated by OTC Markets arisen as to its operating status, if any. International Corp. (The) is quoted on Group, Inc. under the ticker symbol Florida Partners Corp. is quoted on OTC OTC Link operated by OTC Markets ‘‘GTRNQ.’’ Link operated by OTC Markets Group, Group, Inc. under the ticker symbol It appears to the Securities and Inc. under the ticker symbol ‘‘FPCO.’’ ‘‘GSIL.’’ Exchange Commission that there is a It appears to the Securities and It appears to the Securities and lack of current and accurate information Exchange Commission that there is a Exchange Commission that there is a concerning the securities of Greenleaf lack of current and accurate information lack of current and accurate information Technologies Corp. because questions concerning the securities of Georgia 400 concerning the securities of Florsheim have arisen as to its operating status, if Industries, Inc. because questions have Group, Inc. (FGI Group, Inc.) because any. Greenleaf Technologies Corp. is arisen as to its operating status, if any. questions have arisen as to its operating quoted on OTC Link operated by OTC Georgia 400 Industries, Inc. is quoted on status, if any. Florsheim Group, Inc. Markets Group, Inc. under the ticker OTC Link operated by OTC Markets (FGI Group, Inc.) is quoted on OTC Link symbol ‘‘GLFC.’’ Group, Inc. under the ticker symbol operated by OTC Markets Group, Inc. It appears to the Securities and ‘‘GAID.’’ under the ticker symbol ‘‘FLSCQ.’’ It appears to the Securities and Exchange Commission that there is a It appears to the Securities and Exchange Commission that there is a lack of current and accurate information Exchange Commission that there is a lack of current and accurate information concerning the securities of GreyStone lack of current and accurate information concerning the securities of Glengarry Digital Technology, Inc. because concerning the securities of Fone Holdings Ltd. because questions have questions have arisen as to its operating America, Inc. because questions have arisen as to its operating status, if any. status, if any. GreyStone Digital arisen as to its operating status, if any. Glengarry Holdings Ltd. is quoted on Technology, Inc. is quoted on OTC Link Fone America, Inc. is quoted on OTC OTC Link operated by OTC Markets operated by OTC Markets Group, Inc. Link operated by OTC Markets Group, Group, Inc. under the ticker symbol under the ticker symbol ‘‘GSTN.’’ Inc. under the ticker symbol ‘‘FONM.’’ ‘‘GLGH.’’ It appears to the Securities and It appears to the Securities and It appears to the Securities and Exchange Commission that there is a Exchange Commission that there is a Exchange Commission that there is a lack of current and accurate information lack of current and accurate information lack of current and accurate information concerning the securities of Harriet & concerning the securities of Fruehauf concerning the securities of Global Henderson Yarns, Inc. because Trailer Corp. because questions have iTechnology, Inc. because questions questions have arisen as to its operating arisen as to its operating status, if any. have arisen as to its operating status, if status, if any. Harriet & Henderson Fruehauf Trailer Corp. is quoted on OTC any. Global iTechnology, Inc. is quoted Yarns, Inc. is quoted on OTC Link Link operated by OTC Markets Group, on OTC Link operated by OTC Markets operated by OTC Markets Group, Inc. Inc. under the ticker symbol ‘‘FTCFQ.’’ Group, Inc. under the ticker symbol under the ticker symbol ‘‘HHYN.’’ It appears to the Securities and ‘‘GITN.’’ It appears to the Securities and Exchange Commission that there is a It appears to the Securities and Exchange Commission that there is a lack of current and accurate information Exchange Commission that there is a lack of current and accurate information concerning the securities of Future lack of current and accurate information concerning the securities of Hartz Healthcare, Inc. because questions have concerning the securities of Global Restaurants International, Inc. because arisen as to its operating status, if any. Teledata Corp. because questions have questions have arisen as to its operating Future Healthcare, Inc. is quoted on arisen as to its operating status, if any. status, if any. Hartz Restaurants OTC Link operated by OTC Markets Global Teledata Corp. is quoted on OTC International, Inc. is quoted on OTC Group, Inc. under the ticker symbol Link operated by OTC Markets Group, Link operated by OTC Markets Group, ‘‘FHCI.’’ Inc. under the ticker symbol ‘‘GDAC.’’ Inc. under the ticker symbol ‘‘HRII.’’ It appears to the Securities and It appears to the Securities and It appears to the Securities and Exchange Commission that there is a Exchange Commission that there is a Exchange Commission that there is a lack of current and accurate information lack of current and accurate information lack of current and accurate information concerning the securities of Gargoyles, concerning the securities of Gold Lake concerning the securities of Hayden Inc. because questions have arisen as to Mines, Inc. because questions have Hall, Inc. because questions have arisen its operating status, if any. Gargoyles, arisen as to its operating status, if any. as to its operating status, if any. Hayden Inc. is quoted on OTC Link operated by Gold Lake Mines, Inc. is quoted on OTC Hall, Inc. is quoted on OTC Link OTC Markets Group, Inc. under the Link operated by OTC Markets Group, operated by OTC Markets Group, Inc. ticker symbol ‘‘GOYL.’’ Inc. under the ticker symbol ‘‘GOLM.’’ under the ticker symbol ‘‘HYDN.’’

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It appears to the Securities and It appears to the Securities and It appears to the Securities and Exchange Commission that there is a Exchange Commission that there is a Exchange Commission that there is a lack of current and accurate information lack of current and accurate information lack of current and accurate information concerning the securities of HealthRenu concerning the securities of Home State concerning the securities of HyperSecur Medical, Inc. because questions have Holdings, Inc. because questions have Corp. because questions have arisen as arisen as to its operating status, if any. arisen as to its operating status, if any. to its operating status, if any. HealthRenu Medical, Inc. is quoted on Home State Holdings, Inc. is quoted on HyperSecur Corp. is quoted on OTC OTC Link operated by OTC Markets OTC Link operated by OTC Markets Link operated by OTC Markets Group, Group, Inc. under the ticker symbol Group, Inc. under the ticker symbol Inc. under the ticker symbol ‘‘HYUR.’’ ‘‘HRUM’’ ‘‘HOMH.’’ It appears to the Securities and It appears to the Securities and It appears to the Securities and Exchange Commission that there is a Exchange Commission that there is a Exchange Commission that there is a lack of current and accurate information lack of current and accurate information lack of current and accurate information concerning the securities of iBX Group, concerning the securities of Helionetics, concerning the securities of HomeGold Inc. because questions have arisen as to Inc. because questions have arisen as to Financial, Inc. because questions have its operating status, if any. iBX Group, its operating status, if any. Helionetics, arisen as to its operating status, if any. Inc. is quoted on OTC Link operated by Inc. is quoted on OTC Link operated by HomeGold Financial, Inc. is quoted on OTC Markets Group, Inc. under the OTC Markets Group, Inc. under the OTC Link operated by OTC Markets ticker symbol ‘‘IBXG.’’ ticker symbol ‘‘HLXC.’’ Group, Inc. under the ticker symbol It appears to the Securities and It appears to the Securities and ‘‘HGFNQ.’’ Exchange Commission that there is a Exchange Commission that there is a It appears to the Securities and lack of current and accurate information lack of current and accurate information Exchange Commission that there is a concerning the securities of IFS concerning the securities of Henley lack of current and accurate information International Holdings, Inc. because Healthcare, Inc. because questions have concerning the securities of Homeland questions have arisen as to its operating arisen as to its operating status, if any. Holding Corp. because questions have status, if any. IFS International Henley Healthcare, Inc. is quoted on arisen as to its operating status, if any. Holdings, Inc. is quoted on OTC Link OTC Link operated by OTC Markets Homeland Holding Corp. is quoted on operated by OTC Markets Group, Inc. Group, Inc. under the ticker symbol OTC Link operated by OTC Markets under the ticker symbol ‘‘IFSH.’’ ‘‘HENL.’’ Group, Inc. under the ticker symbol It appears to the Securities and It appears to the Securities and ‘‘HMLD.’’ Exchange Commission that there is a Exchange Commission that there is a It appears to the Securities and lack of current and accurate information lack of current and accurate information Exchange Commission that there is a concerning the securities of IGIA, Inc. concerning the securities of Hi-Rise lack of current and accurate information because questions have arisen as to its Recycling Systems, Inc. because concerning the securities of Hubco operating status, if any. IGIA, Inc. is questions have arisen as to its operating Exploration, Inc. because questions have quoted on OTC Link operated by OTC status, if any. Hi-Rise Recycling arisen as to its operating status, if any. Markets Group, Inc. under the ticker Systems, Inc. is quoted on OTC Link Hubco Exploration, Inc. is quoted on symbol ‘‘IGAI.’’ operated by OTC Markets Group, Inc. OTC Link operated by OTC Markets It appears to the Securities and under the ticker symbol ‘‘HIRI.’’ Group, Inc. under the ticker symbol Exchange Commission that there is a It appears to the Securities and ‘‘HBCE.’’ lack of current and accurate information Exchange Commission that there is a It appears to the Securities and concerning the securities of lack of current and accurate information Exchange Commission that there is a ImageMatrix Corp. because questions concerning the securities of Home lack of current and accurate information have arisen as to its operating status, if Energy Savings Corp. because questions concerning the securities of Hungarian any. ImageMatrix Corp. is quoted on have arisen as to its operating status, if Broadcasting Corp. because questions OTC Link operated by OTC Markets any. Home Energy Savings Corp. is have arisen as to its operating status, if Group, Inc. under the ticker symbol quoted on OTC Link operated by OTC any. Hungarian Broadcasting Corp. is ‘‘IMCX.’’ Markets Group, Inc. under the ticker quoted on OTC Link operated by OTC It appears to the Securities and symbol ‘‘HESV.’’ Markets Group, Inc. under the ticker Exchange Commission that there is a It appears to the Securities and symbol ‘‘HBCO.’’ lack of current and accurate information Exchange Commission that there is a It appears to the Securities and concerning the securities of IMC lack of current and accurate information Exchange Commission that there is a Mortgage Co. because questions have concerning the securities of Home lack of current and accurate information arisen as to its operating status, if any. Security International, Inc. because concerning the securities of Huntco, Inc. IMC Mortgage Co. is quoted on OTC questions have arisen as to its operating because questions have arisen as to its Link operated by OTC Markets Group, status, if any. Home Security operating status, if any. Huntco, Inc. is Inc. under the ticker symbol ‘‘IMCC.’’ International, Inc. is quoted on OTC quoted on OTC Link operated by OTC It appears to the Securities and Link operated by OTC Markets Group, Markets Group, Inc. under the ticker Exchange Commission that there is a Inc. under the ticker symbol ‘‘HMSI.’’ symbol ‘‘HCOIQ.’’ lack of current and accurate information It appears to the Securities and It appears to the Securities and concerning the securities of IMP, Inc. Exchange Commission that there is a Exchange Commission that there is a because questions have arisen as to its lack of current and accurate information lack of current and accurate information operating status, if any. IMP, Inc. is concerning the securities of Home concerning the securities of HyperFeed quoted on OTC Link operated by OTC Solutions Health, Inc. because questions Technologies, Inc. because questions Markets Group, Inc. under the ticker have arisen as to its operating status, if have arisen as to its operating status, if symbol ‘‘IMPX.’’ any. Home Solutions Health, Inc. is any. HyperFeed Technologies, Inc. is It appears to the Securities and quoted on OTC Link operated by OTC quoted on OTC Link operated by OTC Exchange Commission that there is a Markets Group, Inc. under the ticker Markets Group, Inc. under the ticker lack of current and accurate information symbol ‘‘HSHL.’’ symbol ‘‘HYPRQ.’’ concerning the securities of Imperial

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Credit Industries, Inc. because questions have arisen as to its operating status, if questions have arisen as to its operating have arisen as to its operating status, if any. Instruments For Industry, Inc is status, if any. Interactive Television any. Imperial Credit Industries, Inc. is quoted on OTC Link operated by OTC Networks, Inc. is quoted on OTC Link quoted on OTC Link operated by OTC Markets Group, Inc. under the ticker operated by OTC Markets Group, Inc. Markets Group, Inc. under the ticker symbol ‘‘INSF.’’ under the ticker symbol ‘‘ITTV.’’ symbol ‘‘ICII.’’ It appears to the Securities and It appears to the Securities and It appears to the Securities and Exchange Commission that there is a Exchange Commission that there is a Exchange Commission that there is a lack of current and accurate information lack of current and accurate information lack of current and accurate information concerning the securities of In-Systcom, concerning the securities of concerning the securities of IMT, Inc. Inc. because questions have arisen as to Intercontinental Holdings, Inc. because because questions have arisen as to its its operating status, if any. In-Systcom, questions have arisen as to its operating operating status, if any. IMT, Inc. is Inc. is quoted on OTC Link operated by status, if any. Intercontinental Holdings, quoted on OTC Link operated by OTC OTC Markets Group, Inc. under the Inc. is quoted on OTC Link operated by Markets Group, Inc. under the ticker ticker symbol ‘‘ISYX.’’ OTC Markets Group, Inc. under the symbol ‘‘IMIT.’’ It appears to the Securities and ticker symbol ‘‘ICLH.’’ It appears to the Securities and Exchange Commission that there is a It appears to the Securities and Exchange Commission that there is a lack of current and accurate information Exchange Commission that there is a lack of current and accurate information concerning the securities of Integrated lack of current and accurate information concerning the securities of Inamco Information Systems, Inc. because concerning the securities of International Corp. because questions questions have arisen as to its operating International Building Concepts Ltd. have arisen as to its operating status, if status, if any. Integrated Information because questions have arisen as to its any. Inamco International Corp. is Systems, Inc. is quoted on OTC Link operating status, if any. International quoted on OTC Link operated by OTC operated by OTC Markets Group, Inc. Building Concepts Ltd. is quoted on Markets Group, Inc. under the ticker under the ticker symbol ‘‘IISX.’’ OTC Link operated by OTC Markets symbol ‘‘IICC.’’ It appears to the Securities and Group, Inc. under the ticker symbol It appears to the Securities and Exchange Commission that there is a ‘‘IBDG.’’ Exchange Commission that there is a lack of current and accurate information It appears to the Securities and lack of current and accurate information concerning the securities of Integrated Exchange Commission that there is a concerning the securities of Incomnet, Services Group, Inc. because questions lack of current and accurate information Inc. because questions have arisen as to have arisen as to its operating status, if concerning the securities of its operating status, if any. Incomnet, any. Integrated Services Group, Inc. is International Capital Equipment, Ltd. Inc. is quoted on OTC Link operated by quoted on OTC Link operated by OTC because questions have arisen as to its OTC Markets Group, Inc. under the Markets Group, Inc. under the ticker operating status, if any. International ticker symbol ‘‘ICNT.’’ symbol ‘‘ISVG.’’ Capital Equipment, Ltd. is quoted on It appears to the Securities and It appears to the Securities and OTC Link operated by OTC Markets Exchange Commission that there is a Exchange Commission that there is a Group, Inc. under the ticker symbol lack of current and accurate information lack of current and accurate information ‘‘ICQLF.’’ concerning the securities of Industrial concerning the securities of Integrated It appears to the Securities and Imaging Corp. because questions have Waste Services, Inc. because questions Exchange Commission that there is a arisen as to its operating status, if any. have arisen as to its operating status, if lack of current and accurate information Industrial Imaging Corp. is quoted on any. Integrated Waste Services, Inc. is concerning the securities of Interpharm OTC Link operated by OTC Markets quoted on OTC Link operated by OTC Holdings, Inc. because questions have Group, Inc. under the ticker symbol Markets Group, Inc. under the ticker arisen as to its operating status, if any. ‘‘INIM.’’ symbol ‘‘IWSI.’’ Interpharm Holdings, Inc. is quoted on It appears to the Securities and It appears to the Securities and OTC Link operated by OTC Markets Exchange Commission that there is a Exchange Commission that there is a Group, Inc. under the ticker symbol lack of current and accurate information lack of current and accurate information ‘‘IPAH.’’ concerning the securities of Industrial concerning the securities of INTER*ACT It appears to the Securities and Technologies, Inc. because questions Communications, Inc. because questions Exchange Commission that there is a have arisen as to its operating status, if have arisen as to its operating status, if lack of current and accurate information any. Industrial Technologies, Inc. is any. INTER*ACT Communications, Inc. concerning the securities of Interspeed, quoted on OTC Link operated by OTC is quoted on OTC Link operated by OTC Inc. because questions have arisen as to Markets Group, Inc. under the ticker Markets Group, Inc. under the ticker its operating status, if any. Interspeed, symbol ‘‘INTE.’’ symbol ‘‘IAMM.’’ Inc. is quoted on OTC Link operated by It appears to the Securities and It appears to the Securities and OTC Markets Group, Inc. under the Exchange Commission that there is a Exchange Commission that there is a ticker symbol ‘‘ISPD.’’ lack of current and accurate information lack of current and accurate information It appears to the Securities and concerning the securities of Innovative concerning the securities of Interactive Exchange Commission that there is a Materials, Inc. because questions have Media Technologies, Inc. because lack of current and accurate information arisen as to its operating status, if any. questions have arisen as to its operating concerning the securities of InterWorld Innovative Materials, Inc. is quoted on status, if any. Interactive Media Corp. because questions have arisen as OTC Link operated by OTC Markets Technologies, Inc. is quoted on OTC to its operating status, if any. InterWorld Group, Inc. under the ticker symbol Link operated by OTC Markets Group, Corp. is quoted on OTC Link operated ‘‘INOMA.’’ Inc. under the ticker symbol ‘‘IMDI.’’ by OTC Markets Group, Inc. under the It appears to the Securities and It appears to the Securities and ticker symbol ‘‘ITWR.’’ Exchange Commission that there is a Exchange Commission that there is a It appears to the Securities and lack of current and accurate information lack of current and accurate information Exchange Commission that there is a concerning the securities of Instruments concerning the securities of Interactive lack of current and accurate information For Industry, Inc because questions Television Networks, Inc. because concerning the securities of Intrenet,

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Inc. because questions have arisen as to quoted on OTC Link operated by OTC Markets Group, Inc. under the ticker its operating status, if any. Intrenet, Inc. Markets Group, Inc. under the ticker symbol ‘‘LEXI.’’ is quoted on OTC Link operated by OTC symbol ‘‘JPEI.’’ It appears to the Securities and Markets Group, Inc. under the ticker It appears to the Securities and Exchange Commission that there is a symbol ‘‘IRNE.’’ Exchange Commission that there is a lack of current and accurate information It appears to the Securities and lack of current and accurate information concerning the securities of Liberate Exchange Commission that there is a concerning the securities of Kentucky Technologies because questions have lack of current and accurate information Central Life Insurance Co. because arisen as to its operating status, if any. concerning the securities of IPTV Corp. questions have arisen as to its operating Liberate Technologies is quoted on OTC because questions have arisen as to its status, if any. Kentucky Central Life Link operated by OTC Markets Group, operating status, if any. IPTV Corp. is Insurance Co. is quoted on OTC Link Inc. under the ticker symbol ‘‘LBTE.’’ quoted on OTC Link operated by OTC operated by OTC Markets Group, Inc. It appears to the Securities and Markets Group, Inc. under the ticker under the ticker symbol ‘‘KENCA.’’ Exchange Commission that there is a symbol ‘‘IPTV.’’ It appears to the Securities and lack of current and accurate information It appears to the Securities and Exchange Commission that there is a concerning the securities of Liberty Exchange Commission that there is a lack of current and accurate information Group Holdings, Inc. because questions lack of current and accurate information concerning the securities of Krause’s have arisen as to its operating status, if concerning the securities of Iridium Furniture, Inc. because questions have any. Liberty Group Holdings, Inc. is World Communications Ltd. because arisen as to its operating status, if any. quoted on OTC Link operated by OTC questions have arisen as to its operating Krause’s Furniture, Inc. is quoted on Markets Group, Inc. under the ticker status, if any. Iridium World OTC Link operated by OTC Markets symbol ‘‘LGHI.’’ It appears to the Securities and Communications Ltd. is quoted on OTC Group, Inc. under the ticker symbol Exchange Commission that there is a Link operated by OTC Markets Group, ‘‘KAUSQ.’’ Inc. under the ticker symbol ‘‘IRIDQ.’’ lack of current and accurate information It appears to the Securities and It appears to the Securities and concerning the securities of Liberty Exchange Commission that there is a Exchange Commission that there is a International Entertainment, Inc. lack of current and accurate information lack of current and accurate information because questions have arisen as to its concerning the securities of Istec- concerning the securities of Kuala operating status, if any. Liberty Industries & Technologies, Ltd. because Healthcare, Inc. because questions have International Entertainment, Inc. is questions have arisen as to its operating arisen as to its operating status, if any. quoted on OTC Link operated by OTC status, if any. Istec-Industries & Kuala Healthcare, Inc. is quoted on OTC Markets Group, Inc. under the ticker Technologies, Ltd. is quoted on OTC Link operated by OTC Markets Group, symbol ‘‘LIEI.’’ Link operated by OTC Markets Group, Inc. under the ticker symbol ‘‘KUAL.’’ It appears to the Securities and Inc. under the ticker symbol ‘‘ISEF.’’ It appears to the Securities and Exchange Commission that there is a It appears to the Securities and Exchange Commission that there is a lack of current and accurate information Exchange Commission that there is a lack of current and accurate information concerning the securities of LINC lack of current and accurate information concerning the securities of L.A. Gear, Capital, Inc. because questions have concerning the securities of IT Group Inc. because questions have arisen as to arisen as to its operating status, if any. Holdings, Inc. because questions have its operating status, if any. L.A. Gear, LINC Capital, Inc. is quoted on OTC arisen as to its operating status, if any. Inc. is quoted on OTC Link operated by Link operated by OTC Markets Group, IT Group Holdings, Inc. is quoted on OTC Markets Group, Inc. under the Inc. under the ticker symbol ‘‘LNCC.’’ OTC Link operated by OTC Markets ticker symbol ‘‘LAGR.’’ It appears to the Securities and Group, Inc. under the ticker symbol It appears to the Securities and Exchange Commission that there is a ‘‘ITGL.’’ Exchange Commission that there is a lack of current and accurate information It appears to the Securities and lack of current and accurate information concerning the securities of Link Exchange Commission that there is a concerning the securities of Lady Energy, LLC because questions have lack of current and accurate information Baltimore Foods, Inc. because questions arisen as to its operating status, if any. concerning the securities of J.Rish have arisen as to its operating status, if Link Energy, LLC is quoted on OTC Group, Inc. (The) because questions any. Lady Baltimore Foods, Inc. is Link operated by OTC Markets Group, have arisen as to its operating status, if quoted on OTC Link operated by OTC Inc. under the ticker symbol ‘‘LNKE.’’ any. J.Rish Group, Inc. (The) is quoted Markets Group, Inc. under the ticker It appears to the Securities and on OTC Link operated by OTC Markets symbol ‘‘LDYBA.’’ Exchange Commission that there is a Group, Inc. under the ticker symbol It appears to the Securities and lack of current and accurate information ‘‘RISH.’’ Exchange Commission that there is a concerning the securities of It appears to the Securities and lack of current and accurate information LogicalOptions International, Inc. Exchange Commission that there is a concerning the securities of LeaseSmart, because questions have arisen as to its lack of current and accurate information Inc. because questions have arisen as to operating status, if any. LogicalOptions concerning the securities of JEC Lasers, its operating status, if any. LeaseSmart, International, Inc. is quoted on OTC Inc. because questions have arisen as to Inc. is quoted on OTC Link operated by Link operated by OTC Markets Group, its operating status, if any. JEC Lasers, OTC Markets Group, Inc. under the Inc. under the ticker symbol ‘‘LOGO.’’ Inc. is quoted on OTC Link operated by ticker symbol ‘‘LSMJ.’’ It appears to the Securities and OTC Markets Group, Inc. under the It appears to the Securities and Exchange Commission that there is a ticker symbol ‘‘JECL.’’ Exchange Commission that there is a lack of current and accurate information It appears to the Securities and lack of current and accurate information concerning the securities of LogiMetrics, Exchange Commission that there is a concerning the securities of Lexington Inc. because questions have arisen as to lack of current and accurate information Healthcare Group Inc. because questions its operating status, if any. LogiMetrics, concerning the securities of JPE, Inc. have arisen as to its operating status, if Inc. is quoted on OTC Link operated by because questions have arisen as to its any. Lexington Healthcare Group Inc. is OTC Markets Group, Inc. under the operating status, if any. JPE, Inc. is quoted on OTC Link operated by OTC ticker symbol ‘‘LGMTA.’’

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It appears to the Securities and concerning the securities of Malibu lack of current and accurate information Exchange Commission that there is a Entertainment Worldwide, Inc. because concerning the securities of lack of current and accurate information questions have arisen as to its operating MaxWorldwide, Inc. because questions concerning the securities of Lois/USA, status, if any. Malibu Entertainment have arisen as to its operating status, if Inc. because questions have arisen as to Worldwide, Inc. is quoted on OTC Link any. MaxWorldwide, Inc. is quoted on its operating status, if any. Lois/USA, operated by OTC Markets Group, Inc. OTC Link operated by OTC Markets Inc. is quoted on OTC Link operated by under the ticker symbol ‘‘MBEW.’’ Group, Inc. under the ticker symbol OTC Markets Group, Inc. under the It appears to the Securities and ‘‘MAXW.’’ ticker symbol ‘‘LSUS.’’ Exchange Commission that there is a It appears to the Securities and It appears to the Securities and lack of current and accurate information Exchange Commission that there is a Exchange Commission that there is a concerning the securities of Marine lack of current and accurate information lack of current and accurate information Management Systems, Inc. because concerning the securities of concerning the securities of Louisiana questions have arisen as to its operating Meadowbrook Golf Group Inc. because Central Oil & Gas Co. because questions status, if any. Marine Management questions have arisen as to its operating have arisen as to its operating status, if Systems, Inc. is quoted on OTC Link status, if any. Meadowbrook Golf Group any. Louisiana Central Oil & Gas Co. is operated by OTC Markets Group, Inc. Inc. is quoted on OTC Link operated by quoted on OTC Link operated by OTC under the ticker symbol ‘‘MMSY.’’ OTC Markets Group, Inc. under the Markets Group, Inc. under the ticker It appears to the Securities and ticker symbol ‘‘MGGI.’’ symbol ‘‘LCNTU.’’ Exchange Commission that there is a It appears to the Securities and It appears to the Securities and lack of current and accurate information Exchange Commission that there is a Exchange Commission that there is a concerning the securities of Marine lack of current and accurate information lack of current and accurate information Sports, Inc. because questions have concerning the securities of Media 100, concerning the securities of arisen as to its operating status, if any. Inc. because questions have arisen as to LoyaltyPoint, Inc. because questions Marine Sports, Inc. is quoted on OTC its operating status, if any. Media 100, have arisen as to its operating status, if Link operated by OTC Markets Group, Inc. is quoted on OTC Link operated by any. LoyaltyPoint, Inc. is quoted on Inc. under the ticker symbol ‘‘MRSP.’’ OTC Markets Group, Inc. under the OTC Link operated by OTC Markets It appears to the Securities and ticker symbol ‘‘MDEA.’’ Group, Inc. under the ticker symbol Exchange Commission that there is a It appears to the Securities and ‘‘LYLP.’’ lack of current and accurate information Exchange Commission that there is a It appears to the Securities and concerning the securities of Marnetics lack of current and accurate information Exchange Commission that there is a Broadband Technologies Ltd. because concerning the securities of Media lack of current and accurate information questions have arisen as to its operating Logic, Inc. because questions have concerning the securities of LTI status, if any. Marnetics Broadband arisen as to its operating status, if any. Technologies, Inc. because questions Technologies Ltd. is quoted on OTC Media Logic, Inc. is quoted on OTC Link have arisen as to its operating status, if Link operated by OTC Markets Group, operated by OTC Markets Group, Inc. any. LTI Technologies, Inc. is quoted on Inc. under the ticker symbol ‘‘MXBTF.’’ under the ticker symbol ‘‘MDLG.’’ OTC Link operated by OTC Markets It appears to the Securities and It appears to the Securities and Group, Inc. under the ticker symbol Exchange Commission that there is a Exchange Commission that there is a ‘‘LTTI.’’ lack of current and accurate information lack of current and accurate information It appears to the Securities and concerning the securities of Master concerning the securities of MediaWorx, Exchange Commission that there is a Woodcraft, Inc. because questions have Inc. because questions have arisen as to lack of current and accurate information arisen as to its operating status, if any. its operating status, if any. MediaWorx, concerning the securities of LTWC Corp. Master Woodcraft, Inc. is quoted on Inc. is quoted on OTC Link operated by because questions have arisen as to its OTC Link operated by OTC Markets OTC Markets Group, Inc. under the operating status, if any. LTWC Corp. is Group, Inc. under the ticker symbol ticker symbol ‘‘MEWX.’’ quoted on OTC Link operated by OTC ‘‘MCFL.’’ It appears to the Securities and Markets Group, Inc. under the ticker It appears to the Securities and Exchange Commission that there is a symbol ‘‘LTWC.’’ Exchange Commission that there is a lack of current and accurate information It appears to the Securities and lack of current and accurate information concerning the securities of Medical Exchange Commission that there is a concerning the securities of Materials Sciences, Inc. because questions have lack of current and accurate information Protection Technologies Inc. because arisen as to its operating status, if any. concerning the securities of Lucille questions have arisen as to its operating Medical Sciences, Inc. is quoted on OTC Farms, Inc. because questions have status, if any. Materials Protection Link operated by OTC Markets Group, arisen as to its operating status, if any. Technologies Inc. is quoted on OTC Inc. under the ticker symbol ‘‘MCLS.’’ Lucille Farms, Inc. is quoted on OTC Link operated by OTC Markets Group, It appears to the Securities and Link operated by OTC Markets Group, Inc. under the ticker symbol ‘‘MTXLF.’’ Exchange Commission that there is a Inc. under the ticker symbol ‘‘LUCY.’’ It appears to the Securities and lack of current and accurate information It appears to the Securities and Exchange Commission that there is a concerning the securities of Medical Exchange Commission that there is a lack of current and accurate information Technology Products, Inc. because lack of current and accurate information concerning the securities of Matrix questions have arisen as to its operating concerning the securities of M.POS Inc. Denture Systems International, Inc. status, if any. Medical Technology because questions have arisen as to its because questions have arisen as to its Products, Inc. is quoted on OTC Link operating status, if any. M.POS Inc. is operating status, if any. Matrix Denture operated by OTC Markets Group, Inc. quoted on OTC Link operated by OTC Systems International, Inc. is quoted on under the ticker symbol ‘‘MTPX.’’ Markets Group, Inc. under the ticker OTC Link operated by OTC Markets It appears to the Securities and symbol ‘‘MPSN.’’ Group, Inc. under the ticker symbol Exchange Commission that there is a It appears to the Securities and ‘‘MDSI.’’ lack of current and accurate information Exchange Commission that there is a It appears to the Securities and concerning the securities of Medra Corp. lack of current and accurate information Exchange Commission that there is a because questions have arisen as to its

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operating status, if any. Medra Corp. is Group, Inc. under the ticker symbol Link operated by OTC Markets Group, quoted on OTC Link operated by OTC ‘‘MIDS.’’ Inc. under the ticker symbol ‘‘NCAB.’’ Markets Group, Inc. under the ticker It appears to the Securities and It appears to the Securities and symbol ‘‘MDRA.’’ Exchange Commission that there is a Exchange Commission that there is a It appears to the Securities and lack of current and accurate information lack of current and accurate information Exchange Commission that there is a concerning the securities of MIIX concerning the securities of National lack of current and accurate information Group, Inc. (The) because questions Terminals Corp. because questions have concerning the securities of Mega have arisen as to its operating status, if arisen as to its operating status, if any. Group, Inc. because questions have any. MIIX Group, Inc. (The) is quoted on National Terminals Corp. is quoted on arisen as to its operating status, if any. OTC Link operated by OTC Markets OTC Link operated by OTC Markets Mega Group, Inc. is quoted on OTC Link Group, Inc. under the ticker symbol Group, Inc. under the ticker symbol operated by OTC Markets Group, Inc. ‘‘MIIX.’’ ‘‘NTRM.’’ under the ticker symbol ‘‘MGINQ.’’ It appears to the Securities and It appears to the Securities and It appears to the Securities and Exchange Commission that there is a Exchange Commission that there is a Exchange Commission that there is a lack of current and accurate information lack of current and accurate information lack of current and accurate information concerning the securities of Miniscribe concerning the securities of Nelson concerning the securities of Mellin Corp. because questions have arisen as (L.B.) Corp. because questions have Industries, Inc. because questions have to its operating status, if any. Miniscribe arisen as to its operating status, if any. arisen as to its operating status, if any. Corp. is quoted on OTC Link operated Nelson (L.B.) Corp. is quoted on OTC Mellin Industries, Inc. is quoted on OTC by OTC Markets Group, Inc. under the Link operated by OTC Markets Group, Link operated by OTC Markets Group, ticker symbol ‘‘MINY.’’ Inc. under the ticker symbol ‘‘NLBC.’’ It appears to the Securities and Inc. under the ticker symbol ‘‘MELL.’’ It appears to the Securities and Exchange Commission that there is a It appears to the Securities and Exchange Commission that there is a lack of current and accurate information lack of current and accurate information Exchange Commission that there is a concerning the securities of NetImpact lack of current and accurate information concerning the securities of Miravant Holdings, Inc. because questions have concerning the securities of Meridian Medical Technologies because questions arisen as to its operating status, if any. Software, Inc. because questions have have arisen as to its operating status, if NetImpact Holdings, Inc. is quoted on arisen as to its operating status, if any. any. Miravant Medical Technologies is OTC Link operated by OTC Markets Meridian Software, Inc. is quoted on quoted on OTC Link operated by OTC Group, Inc. under the ticker symbol OTC Link operated by OTC Markets Markets Group, Inc. under the ticker ‘‘NTHD.’’ Group, Inc. under the ticker symbol symbol ‘‘MRVT.’’ It appears to the Securities and ‘‘MSWI.’’ It appears to the Securities and Exchange Commission that there is a It appears to the Securities and Exchange Commission that there is a lack of current and accurate information Exchange Commission that there is a lack of current and accurate information concerning the securities of NetObjects, lack of current and accurate information concerning the securities of Mobile Inc. because questions have arisen as to concerning the securities of Merit Ready Entertainment Corp. because its operating status, if any. NetObjects, Studios, Inc. because questions have questions have arisen as to its operating Inc. is quoted on OTC Link operated by arisen as to its operating status, if any. status, if any. Mobile Ready OTC Markets Group, Inc. under the Merit Studios, Inc. is quoted on OTC Entertainment Corp. is quoted on OTC ticker symbol ‘‘NETO.’’ Link operated by OTC Markets Group, Link operated by OTC Markets Group, It appears to the Securities and Inc. under the ticker symbol ‘‘MRITQ.’’ Inc. under the ticker symbol ‘‘MRDY.’’ Exchange Commission that there is a It appears to the Securities and It appears to the Securities and lack of current and accurate information Exchange Commission that there is a Exchange Commission that there is a concerning the securities of Netplex lack of current and accurate information lack of current and accurate information Group, Inc. (The) because questions concerning the securities of Metals concerning the securities of have arisen as to its operating status, if Research Group Corp. because questions MyGlobalConcierge.com, Inc. because any. Netplex Group, Inc. (The) is quoted have arisen as to its operating status, if questions have arisen as to its operating on OTC Link operated by OTC Markets any. Metals Research Group Corp. is status, if any. MyGlobalConcierge.com, Group, Inc. under the ticker symbol quoted on OTC Link operated by OTC Inc. is quoted on OTC Link operated by ‘‘NTPL.’’ Markets Group, Inc. under the ticker OTC Markets Group, Inc. under the It appears to the Securities and symbol ‘‘MLRA.’’ ticker symbol ‘‘MGCG.’’ Exchange Commission that there is a It appears to the Securities and It appears to the Securities and lack of current and accurate information Exchange Commission that there is a Exchange Commission that there is a concerning the securities of Network lack of current and accurate information lack of current and accurate information Connection, Inc. (The) because concerning the securities of Metro concerning the securities of Nahdree questions have arisen as to its operating Airlines, Inc. because questions have Group Ltd. (The). because questions status, if any. Network Connection, Inc. arisen as to its operating status, if any. have arisen as to its operating status, if (The) is quoted on OTC Link operated Metro Airlines, Inc. is quoted on OTC any. Nahdree Group Ltd. (The) is quoted by OTC Markets Group, Inc. under the Link operated by OTC Markets Group, on OTC Link operated by OTC Markets ticker symbol ‘‘TNCXQ.’’ Inc. under the ticker symbol ‘‘MEAI.’’ Group, Inc. under the ticker symbol It appears to the Securities and It appears to the Securities and ‘‘NDRE.’’ Exchange Commission that there is a Exchange Commission that there is a It appears to the Securities and lack of current and accurate information lack of current and accurate information Exchange Commission that there is a concerning the securities of Neuro concerning the securities of lack of current and accurate information Bioscience, Inc. because questions have MidasTrade.com, Inc. because questions concerning the securities of National arisen as to its operating status, if any. have arisen as to its operating status, if Cable, Inc. because questions have Neuro Bioscience, Inc. is quoted on OTC any. MidasTrade.com, Inc. is quoted on arisen as to its operating status, if any. Link operated by OTC Markets Group, OTC Link operated by OTC Markets National Cable, Inc. is quoted on OTC Inc. under the ticker symbol ‘‘NRBO.’’

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It appears to the Securities and Group, Inc. under the ticker symbol Group, Inc. under the ticker symbol Exchange Commission that there is a ‘‘NPNTQ.’’ ‘‘OWDN.’’ lack of current and accurate information It appears to the Securities and It appears to the Securities and concerning the securities of New York & Exchange Commission that there is a Exchange Commission that there is a Harlem Railroad Co. because questions lack of current and accurate information lack of current and accurate information have arisen as to its operating status, if concerning the securities of Nuko concerning the securities of Oneita any. New York & Harlem Railroad Co. Information Systems, Inc. because Industries, Inc. because questions have is quoted on OTC Link operated by OTC questions have arisen as to its operating arisen as to its operating status, if any. Markets Group, Inc. under the ticker status, if any. Nuko Information Oneita Industries, Inc. is quoted on OTC symbol ‘‘NYHA.’’ Systems, Inc. is quoted on OTC Link Link operated by OTC Markets Group, It appears to the Securities and operated by OTC Markets Group, Inc. Inc. under the ticker symbol ‘‘ONTAQ.’’ Exchange Commission that there is a under the ticker symbol ‘‘NUKO.’’ It appears to the Securities and lack of current and accurate information It appears to the Securities and Exchange Commission that there is a concerning the securities of NewGen Exchange Commission that there is a lack of current and accurate information Technologies, Inc. because questions lack of current and accurate information concerning the securities of OneLink have arisen as to its operating status, if concerning the securities of nVIEW Corp. because questions have arisen as any. NewGen Technologies, Inc. is Corp. because questions have arisen as to its operating status, if any. OneLink quoted on OTC Link operated by OTC to its operating status, if any. nVIEW Corp. is quoted on OTC Link operated Markets Group, Inc. under the ticker Corp. is quoted on OTC Link operated by OTC Markets Group, Inc. under the symbol ‘‘NWGN.’’ by OTC Markets Group, Inc. under the ticker symbol ‘‘OLNK.’’ It appears to the Securities and ticker symbol ‘‘NVUE.’’ It appears to the Securities and Exchange Commission that there is a It appears to the Securities and Exchange Commission that there is a lack of current and accurate information Exchange Commission that there is a lack of current and accurate information concerning the securities of Next lack of current and accurate information concerning the securities of OneSource Generation Technolgy Holdings, Inc. concerning the securities of Ocean Technologies, Inc. because questions because questions have arisen as to its Power Corp. because questions have have arisen as to its operating status, if operating status, if any. Next Generation arisen as to its operating status, if any. any. OneSource Technologies, Inc. is Technology Holdings, Inc. is quoted on Ocean Power Corp. is quoted on OTC quoted on OTC Link operated by OTC OTC Link operated by OTC Markets Link operated by OTC Markets Group, Markets Group, Inc. under the ticker Group, Inc. under the ticker symbol Inc. under the ticker symbol ‘‘PWREQ.’’ symbol ‘‘OSRC.’’ ‘‘NGTHQ.’’ It appears to the Securities and It appears to the Securities and It appears to the Securities and Exchange Commission that there is a Exchange Commission that there is a Exchange Commission that there is a lack of current and accurate information lack of current and accurate information lack of current and accurate information concerning the securities of Nextrata concerning the securities of Ohmstar concerning the securities of Open Plan Energy Inc. because questions have Home Lending LLC because questions Systems, Inc. because questions have arisen as to its operating status, if any. have arisen as to its operating status, if arisen as to its operating status, if any. Nextrata Energy Inc. is quoted on OTC any. Ohmstar Home Lending LLC is Open Plan Systems, Inc. is quoted on Link operated by OTC Markets Group, quoted on OTC Link operated by OTC OTC Link operated by OTC Markets Inc. under the ticker symbol ‘‘NXTA.’’ Markets Group, Inc. under the ticker Group, Inc. under the ticker symbol It appears to the Securities and symbol ‘‘OMST.’’ ‘‘PLANQ.’’ Exchange Commission that there is a It appears to the Securities and It appears to the Securities and lack of current and accurate information Exchange Commission that there is a Exchange Commission that there is a concerning the securities of North lack of current and accurate information lack of current and accurate information American Building, Inc. because concerning the securities of Omega concerning the securities of Optomedic questions have arisen as to its operating Ventures Group, Inc. because questions Medical Technologies Ltd. because status, if any. North American Building, have arisen as to its operating status, if questions have arisen as to its operating Inc. is quoted on OTC Link operated by any. Omega Ventures Group, Inc. is status, if any. Optomedic Medical OTC Markets Group, Inc. under the quoted on OTC Link operated by OTC Technologies Ltd. is quoted on OTC ticker symbol ‘‘NABD.’’ Markets Group, Inc. under the ticker Link operated by OTC Markets Group, It appears to the Securities and symbol ‘‘OMGV.’’ Inc. under the ticker symbol ‘‘KPLNF.’’ Exchange Commission that there is a It appears to the Securities and It appears to the Securities and lack of current and accurate information Exchange Commission that there is a Exchange Commission that there is a concerning the securities of Northeast lack of current and accurate information lack of current and accurate information Digital Networks, Inc. because questions concerning the securities of Omni concerning the securities of Oriole have arisen as to its operating status, if Multimedia Group, Inc. because Systems, Inc. because questions have any. Northeast Digital Networks, Inc. is questions have arisen as to its operating arisen as to its operating status, if any. quoted on OTC Link operated by OTC status, if any. Omni Multimedia Group, Oriole Systems, Inc. is quoted on OTC Markets Group, Inc. under the ticker Inc. is quoted on OTC Link operated by Link operated by OTC Markets Group, symbol ‘‘GSMI.’’ OTC Markets Group, Inc. under the Inc. under the ticker symbol ‘‘ORLSF.’’ It appears to the Securities and ticker symbol ‘‘OMMG.’’ It appears to the Securities and Exchange Commission that there is a It appears to the Securities and Exchange Commission that there is a lack of current and accurate information Exchange Commission that there is a lack of current and accurate information concerning the securities of NorthPoint lack of current and accurate information concerning the securities of OTC Communications Group, Inc. because concerning the securities of One World Wireless, Inc. because questions have questions have arisen as to its operating Nutrition, Inc. because questions have arisen as to its operating status, if any. status, if any. NorthPoint arisen as to its operating status, if any. OTC Wireless, Inc. is quoted on OTC Communications Group, Inc. is quoted One World Nutrition, Inc. is quoted on Link operated by OTC Markets Group, on OTC Link operated by OTC Markets OTC Link operated by OTC Markets Inc. under the ticker symbol ‘‘OTCL.’’

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It appears to the Securities and It appears to the Securities and Corp. because questions have arisen as Exchange Commission that there is a Exchange Commission that there is a to its operating status, if any. Presidion lack of current and accurate information lack of current and accurate information Corp. is quoted on OTC Link operated concerning the securities of OTR concerning the securities of Plastic by OTC Markets Group, Inc. under the Express, Inc. because questions have Recycling, Inc. because questions have ticker symbol ‘‘PSDI.’’ arisen as to its operating status, if any. arisen as to its operating status, if any. It appears to the Securities and OTR Express, Inc. is quoted on OTC Plastic Recycling, Inc. is quoted on OTC Exchange Commission that there is a Link operated by OTC Markets Group, Link operated by OTC Markets Group, lack of current and accurate information Inc. under the ticker symbol ‘‘OTRX.’’ Inc. under the ticker symbol ‘‘PLTK.’’ concerning the securities of Pressure It appears to the Securities and It appears to the Securities and Piping Components, Inc. because Exchange Commission that there is a Exchange Commission that there is a questions have arisen as to its operating lack of current and accurate information lack of current and accurate information status, if any. Pressure Piping concerning the securities of Panama concerning the securities of PlayNet Components, Inc. is quoted on OTC Coca-Cola Bottling Co., Inc. because Technologies, Inc. because questions Link operated by OTC Markets Group, questions have arisen as to its operating have arisen as to its operating status, if Inc. under the ticker symbol ‘‘PPCI.’’ status, if any. Panama Coca-Cola any. PlayNet Technologies, Inc. is It appears to the Securities and Bottling Co., Inc. is quoted on OTC Link quoted on OTC Link operated by OTC Exchange Commission that there is a operated by OTC Markets Group, Inc. Markets Group, Inc. under the ticker lack of current and accurate information under the ticker symbol ‘‘PCOK.’’ symbol ‘‘PLYI.’’ concerning the securities of Prestige It appears to the Securities and It appears to the Securities and Graphics, Inc. because questions have Exchange Commission that there is a Exchange Commission that there is a arisen as to its operating status, if any. lack of current and accurate information lack of current and accurate information Prestige Graphics, Inc. is quoted on OTC Link operated by OTC Markets Group, concerning the securities of Paper concerning the securities of Pluma, Inc. because questions have arisen as to its Inc. under the ticker symbol ‘‘PGPI.’’ Warehouse, Inc. because questions have operating status, if any. Pluma, Inc. is It appears to the Securities and arisen as to its operating status, if any. quoted on OTC Link operated by OTC Exchange Commission that there is a Paper Warehouse, Inc. is quoted on OTC Markets Group, Inc. under the ticker lack of current and accurate information Link operated by OTC Markets Group, symbol ‘‘PLUAQ.’’ concerning the securities of PreventCo, Inc. under the ticker symbol ‘‘PWHSQ.’’ It appears to the Securities and Inc. because questions have arisen as to It appears to the Securities and Exchange Commission that there is a its operating status, if any. PreventCo, Exchange Commission that there is a lack of current and accurate information Inc. is quoted on OTC Link operated by lack of current and accurate information concerning the securities of PMD OTC Markets Group, Inc. under the concerning the securities of Pentronics Investment Co. because questions have ticker symbol ‘‘PREV.’’ Industries, Inc. because questions have arisen as to its operating status, if any. It appears to the Securities and arisen as to its operating status, if any. PMD Investment Co. is quoted on OTC Exchange Commission that there is a Pentronics Industries, Inc. is quoted on Link operated by OTC Markets Group, lack of current and accurate information OTC Link operated by OTC Markets Inc. under the ticker symbol ‘‘PMDI.’’ concerning the securities of PrimePlayer Group, Inc. under the ticker symbol It appears to the Securities and Incorporated because questions have ‘‘PNTN.’’ Exchange Commission that there is a arisen as to its operating status, if any. It appears to the Securities and lack of current and accurate information PrimePlayer Incorporated is quoted on Exchange Commission that there is a concerning the securities of Portivity, OTC Link operated by OTC Markets lack of current and accurate information Inc. because questions have arisen as to Group, Inc. under the ticker symbol concerning the securities of Phoenix its operating status, if any. Portivity, Inc. ‘‘PPYR.’’ Gold International, Inc. because is quoted on OTC Link operated by OTC It appears to the Securities and questions have arisen as to its operating Markets Group, Inc. under the ticker Exchange Commission that there is a status, if any. Phoenix Gold symbol ‘‘BRLS.’’ lack of current and accurate information International, Inc. is quoted on OTC It appears to the Securities and concerning the securities of Princeton Link operated by OTC Markets Group, Exchange Commission that there is a American Corp. because questions have Inc. under the ticker symbol ‘‘PGLD.’’ lack of current and accurate information arisen as to its operating status, if any. It appears to the Securities and concerning the securities of Precision Princeton American Corp. is quoted on Exchange Commission that there is a Optics, Inc. because questions have OTC Link operated by OTC Markets lack of current and accurate information arisen as to its operating status, if any. Group, Inc. under the ticker symbol concerning the securities of Pilot Precision Optics, Inc. is quoted on OTC ‘‘PAMC.’’ Therapeutics Holdings, Inc. because Link operated by OTC Markets Group, It appears to the Securities and questions have arisen as to its operating Inc. under the ticker symbol ‘‘PREO.’’ Exchange Commission that there is a status, if any. Pilot Therapeutics It appears to the Securities and lack of current and accurate information Holdings, Inc. is quoted on OTC Link Exchange Commission that there is a concerning the securities of Princeton operated by OTC Markets Group, Inc. lack of current and accurate information Chemical Research, Inc. because under the ticker symbol ‘‘PLTT.’’ concerning the securities of Preiss questions have arisen as to its operating It appears to the Securities and Byron Multimedia, Inc. because status, if any. Princeton Chemical Exchange Commission that there is a questions have arisen as to its operating Research, Inc. is quoted on OTC Link lack of current and accurate information status, if any. Preiss Byron Multimedia, operated by OTC Markets Group, Inc. concerning the securities of Pioneer Inc. is quoted on OTC Link operated by under the ticker symbol ‘‘PRCH.’’ Commercial Funding Corp. because OTC Markets Group, Inc. under the It appears to the Securities and questions have arisen as to its operating ticker symbol ‘‘RSVP.’’ Exchange Commission that there is a status, if any. Pioneer Commercial It appears to the Securities and lack of current and accurate information Funding Corp. is quoted on OTC Link Exchange Commission that there is a concerning the securities of ProMedCo operated by OTC Markets Group, Inc. lack of current and accurate information Management Co. because questions have under the ticker symbol ‘‘PCFC.’’ concerning the securities of Presidion arisen as to its operating status, if any.

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ProMedCo Management Co. is quoted Inc. is quoted on OTC Link operated by quoted on OTC Link operated by OTC on OTC Link operated by OTC Markets OTC Markets Group, Inc. under the Markets Group, Inc. under the ticker Group, Inc. under the ticker symbol ticker symbol ‘‘RCRS.’’ symbol ‘‘RPAML.’’ ‘‘PMCOQ.’’ It appears to the Securities and It appears to the Securities and It appears to the Securities and Exchange Commission that there is a Exchange Commission that there is a Exchange Commission that there is a lack of current and accurate information lack of current and accurate information lack of current and accurate information concerning the securities of Regent concerning the securities of R–Tec concerning the securities of Proterion Assisted Living, Inc. because questions Holding, Inc. because questions have Corporation because questions have have arisen as to its operating status, if arisen as to its operating status, if any. arisen as to its operating status, if any. any. Regent Assisted Living, Inc. is R–Tec Holding, Inc. is quoted on OTC Proterion Corporation is quoted on OTC quoted on OTC Link operated by OTC Link operated by OTC Markets Group, Link operated by OTC Markets Group, Markets Group, Inc. under the ticker Inc. under the ticker symbol ‘‘RTHG.’’ Inc. under the ticker symbol ‘‘PROI.’’ symbol ‘‘RGNT.’’ It appears to the Securities and It appears to the Securities and It appears to the Securities and Exchange Commission that there is a Exchange Commission that there is a Exchange Commission that there is a lack of current and accurate information lack of current and accurate information lack of current and accurate information concerning the securities of RxBazaar, concerning the securities of Public concerning the securities of Renaissance Inc. because questions have arisen as to Service Investment & Management Corp. Capital Group, Inc. because questions its operating status, if any. RxBazaar, because questions have arisen as to its have arisen as to its operating status, if Inc. is quoted on OTC Link operated by operating status, if any. Public Service any. Renaissance Capital Group, Inc. is OTC Markets Group, Inc. under the Investment & Management Corp. is quoted on OTC Link operated by OTC ticker symbol ‘‘RXBZ.’’ quoted on OTC Link operated by OTC Markets Group, Inc. under the ticker It appears to the Securities and Markets Group, Inc. under the ticker symbol ‘‘RNCG.’’ Exchange Commission that there is a symbol ‘‘PSIM.’’ It appears to the Securities and lack of current and accurate information It appears to the Securities and Exchange Commission that there is a concerning the securities of Sanders Exchange Commission that there is a lack of current and accurate information Confectionary Products, Inc. because lack of current and accurate information concerning the securities of Response questions have arisen as to its operating concerning the securities of Publishers Oncology, Inc. because questions have status, if any. Sanders Confectionary Equipment Corp. because questions arisen as to its operating status, if any. Products, Inc. is quoted on OTC Link have arisen as to its operating status, if Response Oncology, Inc. is quoted on operated by OTC Markets Group, Inc. any. Publishers Equipment Corp. is OTC Link operated by OTC Markets under the ticker symbol ‘‘SDCF.’’ quoted on OTC Link operated by OTC Group, Inc. under the ticker symbol It appears to the Securities and Markets Group, Inc. under the ticker ‘‘ROIX.’’ Exchange Commission that there is a symbol ‘‘PEQU.’’ It appears to the Securities and lack of current and accurate information It appears to the Securities and Exchange Commission that there is a concerning the securities of Security Exchange Commission that there is a lack of current and accurate information Asset Capital Corporation because lack of current and accurate information concerning the securities of Robomatix questions have arisen as to its operating concerning the securities of Pure Vanilla Technologies Ltd. because questions status, if any. Security Asset Capital eXchange, Inc. because questions have have arisen as to its operating status, if Corporation is quoted on OTC Link arisen as to its operating status, if any. any. Robomatix Technologies Ltd. is operated by OTC Markets Group, Inc. Pure Vanilla eXchange, Inc. is quoted on quoted on OTC Link operated by OTC under the ticker symbol ‘‘SCYA.’’ OTC Link operated by OTC Markets Markets Group, Inc. under the ticker It appears to the Securities and Group, Inc. under the ticker symbol symbol ‘‘RBMXF.’’ Exchange Commission that there is a ‘‘PVNX.’’ It appears to the Securities and lack of current and accurate information It appears to the Securities and Exchange Commission that there is a concerning the securities of Seiler Exchange Commission that there is a lack of current and accurate information Pollution Control Systems, Inc. because lack of current and accurate information concerning the securities of Rodman & questions have arisen as to its operating concerning the securities of Quality Renshaw Capital Group, Inc. because status, if any. Seiler Pollution Control Data Processing, Inc. because questions questions have arisen as to its operating Systems, Inc. is quoted on OTC Link have arisen as to its operating status, if status, if any. Rodman & Renshaw operated by OTC Markets Group, Inc. any. Quality Data Processing, Inc. is Capital Group, Inc. is quoted on OTC under the ticker symbol ‘‘SEPE.’’ quoted on OTC Link operated by OTC Link operated by OTC Markets Group, It appears to the Securities and Markets Group, Inc. under the ticker Inc. under the ticker symbol ‘‘RRSHQ.’’ Exchange Commission that there is a symbol ‘‘QDTA.’’ It appears to the Securities and lack of current and accurate information It appears to the Securities and Exchange Commission that there is a concerning the securities of Sequel Exchange Commission that there is a lack of current and accurate information Technology Corp. because questions lack of current and accurate information concerning the securities of Room Plus, have arisen as to its operating status, if concerning the securities of Radio Inc. because questions have arisen as to any. Sequel Technology Corp. is quoted World Corp. because questions have its operating status, if any. Room Plus, on OTC Link operated by OTC Markets arisen as to its operating status, if any. Inc. is quoted on OTC Link operated by Group, Inc. under the ticker symbol Radio World Corp. is quoted on OTC OTC Markets Group, Inc. under the ‘‘SEQL.’’ Link operated by OTC Markets Group, ticker symbol ‘‘PLSSQ.’’ It appears to the Securities and Inc. under the ticker symbol ‘‘RAWO.’’ It appears to the Securities and Exchange Commission that there is a It appears to the Securities and Exchange Commission that there is a lack of current and accurate information Exchange Commission that there is a lack of current and accurate information concerning the securities of Shallbetter lack of current and accurate information concerning the securities of Royal Palm Industries, Inc. because questions have concerning the securities of Receptors, Beach Colony, L.P. because questions arisen as to its operating status, if any. Inc. because questions have arisen as to have arisen as to its operating status, if Shallbetter Industries, Inc. is quoted on its operating status, if any. Receptors, any. Royal Palm Beach Colony, L.P. is OTC Link operated by OTC Markets

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Group, Inc. under the ticker symbol It appears to the Securities and concerning the securities of Spotlight ‘‘SBNS.’’ Exchange Commission that there is a Homes, Inc. because questions have It appears to the Securities and lack of current and accurate information arisen as to its operating status, if any. Exchange Commission that there is a concerning the securities of Smith Spotlight Homes, Inc. is quoted on OTC lack of current and accurate information Corona Corp. because questions have Link operated by OTC Markets Group, concerning the securities of Silverado arisen as to its operating status, if any. Inc. under the ticker symbol ‘‘SPHM.’’ Foods, Inc. because questions have Smith Corona Corp. is quoted on OTC It appears to the Securities and arisen as to its operating status, if any. Link operated by OTC Markets Group, Exchange Commission that there is a Silverado Foods, Inc. is quoted on OTC Inc. under the ticker symbol ‘‘SITM.’’ lack of current and accurate information Link operated by OTC Markets Group, It appears to the Securities and concerning the securities of Star Inc. under the ticker symbol ‘‘SVFO.’’ Exchange Commission that there is a Entertainment Group, Inc. because It appears to the Securities and lack of current and accurate information questions have arisen as to its operating Exchange Commission that there is a concerning the securities of Smith status, if any. Star Entertainment Group, lack of current and accurate information Technology Corp. because questions Inc. is quoted on OTC Link operated by concerning the securities of Silvercrest have arisen as to its operating status, if OTC Markets Group, Inc. under the Corp. because questions have arisen as any. Smith Technology Corp. is quoted ticker symbol ‘‘SREN.’’ to its operating status, if any. Silvercrest on OTC Link operated by OTC Markets It appears to the Securities and Corp. is quoted on OTC Link operated Group, Inc. under the ticker symbol Exchange Commission that there is a by OTC Markets Group, Inc. under the ‘‘SMTQQ.’’ lack of current and accurate information ticker symbol ‘‘SLVI.’’ It appears to the Securities and concerning the securities of Stars To Go, It appears to the Securities and Exchange Commission that there is a Inc. because questions have arisen as to its operating status, if any. Stars To Go, Exchange Commission that there is a lack of current and accurate information concerning the securities of SMX Corp. Inc. is quoted on OTC Link operated by lack of current and accurate information because questions have arisen as to its OTC Markets Group, Inc. under the concerning the securities of Simmons- operating status, if any. SMX Corp. is ticker symbol ‘‘STGO.’’ Boardman Publishing Corp. because quoted on OTC Link operated by OTC It appears to the Securities and questions have arisen as to its operating Markets Group, Inc. under the ticker Exchange Commission that there is a status, if any. Simmons-Boardman symbol ‘‘SMXP.’’ lack of current and accurate information Publishing Corp. is quoted on OTC Link It appears to the Securities and concerning the securities of Sterling operated by OTC Markets Group, Inc. Exchange Commission that there is a Business Solutions Inc. because under the ticker symbol ‘‘SBPG.’’ lack of current and accurate information questions have arisen as to its operating It appears to the Securities and concerning the securities of Solo Serve status, if any. Sterling Business Exchange Commission that there is a Corp. because questions have arisen as Solutions Inc. is quoted on OTC Link lack of current and accurate information to its operating status, if any. Solo Serve operated by OTC Markets Group, Inc. concerning the securities of Corp. is quoted on OTC Link operated under the ticker symbol ‘‘STLB.’’ SimPlayer.com Ltd. because questions by OTC Markets Group, Inc. under the It appears to the Securities and have arisen as to its operating status, if ticker symbol ‘‘SSVR.’’ Exchange Commission that there is a any. SimPlayer.com Ltd. is quoted on It appears to the Securities and lack of current and accurate information OTC Link operated by OTC Markets Exchange Commission that there is a concerning the securities of Storage Group, Inc. under the ticker symbol lack of current and accurate information Computer Corp. because questions have ‘‘SMPLF.’’ concerning the securities of Speaking arisen as to its operating status, if any. It appears to the Securities and Roses International, Inc. because Storage Computer Corp. is quoted on Exchange Commission that there is a questions have arisen as to its operating OTC Link operated by OTC Markets lack of current and accurate information status, if any. Speaking Roses Group, Inc. under the ticker symbol concerning the securities of SISCOM, International, Inc. is quoted on OTC ‘‘SOSO.’’ Inc. because questions have arisen as to Link operated by OTC Markets Group, It appears to the Securities and its operating status, if any. SISCOM, Inc. Inc. under the ticker symbol ‘‘SRII.’’ Exchange Commission that there is a is quoted on OTC Link operated by OTC It appears to the Securities and lack of current and accurate information Markets Group, Inc. under the ticker Exchange Commission that there is a concerning the securities of Stratcomm symbol ‘‘SATI.’’ lack of current and accurate information Media Ltd. because questions have It appears to the Securities and concerning the securities of Specialty arisen as to its operating status, if any. Exchange Commission that there is a Chemical Resources, Inc. because Stratcomm Media Ltd. is quoted on OTC lack of current and accurate information questions have arisen as to its operating Link operated by OTC Markets Group, concerning the securities of SiVault status, if any. Specialty Chemical Inc. under the ticker symbol ‘‘SMMT.’’ Systems, Inc. because questions have Resources, Inc. is quoted on OTC Link It appears to the Securities and arisen as to its operating status, if any. operated by OTC Markets Group, Inc. Exchange Commission that there is a SiVault Systems, Inc. is quoted on OTC under the ticker symbol ‘‘SCCS.’’ lack of current and accurate information Link operated by OTC Markets Group, It appears to the Securities and concerning the securities of Summit Life Inc. under the ticker symbol ‘‘SVTLQ.’’ Exchange Commission that there is a Corporation because questions have It appears to the Securities and lack of current and accurate information arisen as to its operating status, if any. Exchange Commission that there is a concerning the securities of Spectrum Summit Life Corporation is quoted on lack of current and accurate information Oil Corp. because questions have arisen OTC Link operated by OTC Markets concerning the securities of SmarTalk as to its operating status, if any. Group, Inc. under the ticker symbol TeleServices, Inc. because questions Spectrum Oil Corp. is quoted on OTC ‘‘SMLF.’’ have arisen as to its operating status, if Link operated by OTC Markets Group, It appears to the Securities and any. SmarTalk TeleServices, Inc. is Inc. under the ticker symbol ‘‘SPOC.’’ Exchange Commission that there is a quoted on OTC Link operated by OTC It appears to the Securities and lack of current and accurate information Markets Group, Inc. under the ticker Exchange Commission that there is a concerning the securities of Sundance symbol ‘‘STKTQ.’’ lack of current and accurate information Homes, Inc. because questions have

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arisen as to its operating status, if any. OTC Markets Group, Inc. under the Link operated by OTC Markets Group, Sundance Homes, Inc. is quoted on OTC ticker symbol ‘‘TLDG.’’ Inc. under the ticker symbol ‘‘TCRTS.’’ Link operated by OTC Markets Group, It appears to the Securities and It appears to the Securities and Inc. under the ticker symbol ‘‘SDHM.’’ Exchange Commission that there is a Exchange Commission that there is a It appears to the Securities and lack of current and accurate information lack of current and accurate information Exchange Commission that there is a concerning the securities of Teletrak concerning the securities of Trans- lack of current and accurate information Environmental Systems, Inc. because Industries, Inc. because questions have concerning the securities of Sungroup, questions have arisen as to its operating arisen as to its operating status, if any. Inc. because questions have arisen as to status, if any. Teletrak Environmental Trans-Industries, Inc. is quoted on OTC its operating status, if any. Sungroup, Systems, Inc. is quoted on OTC Link Link operated by OTC Markets Group, Inc. is quoted on OTC Link operated by operated by OTC Markets Group, Inc. Inc. under the ticker symbol ‘‘TRNIQ.’’ OTC Markets Group, Inc. under the under the ticker symbol ‘‘TAES.’’ It appears to the Securities and ticker symbol ‘‘SGUP.’’ It appears to the Securities and Exchange Commission that there is a It appears to the Securities and Exchange Commission that there is a lack of current and accurate information Exchange Commission that there is a lack of current and accurate information concerning the securities of lack of current and accurate information concerning the securities of Tellurian, Transportation Components, Inc. concerning the securities of Sunstyle Inc. because questions have arisen as to because questions have arisen as to its Corp. because questions have arisen as its operating status, if any. Tellurian, operating status, if any. Transportation to its operating status, if any. Sunstyle Inc. is quoted on OTC Link operated by Components, Inc. is quoted on OTC Corp. is quoted on OTC Link operated OTC Markets Group, Inc. under the Link operated by OTC Markets Group, by OTC Markets Group, Inc. under the ticker symbol ‘‘TLRN.’’ Inc. under the ticker symbol ‘‘TUIC.’’ It appears to the Securities and ticker symbol ‘‘SSCO.’’ It appears to the Securities and Exchange Commission that there is a It appears to the Securities and Exchange Commission that there is a lack of current and accurate information Exchange Commission that there is a lack of current and accurate information concerning the securities of TRISM, Inc. lack of current and accurate information concerning the securities of TeraForce because questions have arisen as to its concerning the securities of SVC Technology Corp. because questions operating status, if any. TRISM, Inc. is Financial Services, Inc. because have arisen as to its operating status, if quoted on OTC Link operated by OTC questions have arisen as to its operating any. TeraForce Technology Corp. is Markets Group, Inc. under the ticker status, if any. SVC Financial Services, quoted on OTC Link operated by OTC symbol ‘‘TSMX.’’ Inc. is quoted on OTC Link operated by Markets Group, Inc. under the ticker It appears to the Securities and OTC Markets Group, Inc. under the symbol ‘‘TERA.’’ Exchange Commission that there is a ticker symbol ‘‘SVCX.’’ It appears to the Securities and lack of current and accurate information It appears to the Securities and Exchange Commission that there is a concerning the securities of TVC Exchange Commission that there is a lack of current and accurate information Telecom, Inc. because questions have lack of current and accurate information concerning the securities of Terminal arisen as to its operating status, if any. concerning the securities of Sykes Applications Group, Inc. because TVC Telecom, Inc. is quoted on OTC Datatronics, Inc. because questions have questions have arisen as to its operating Link operated by OTC Markets Group, arisen as to its operating status, if any. status, if any. Terminal Applications Inc. under the ticker symbol ‘‘TVCE.’’ Sykes Datatronics, Inc. is quoted on Group, Inc. is quoted on OTC Link It appears to the Securities and OTC Link operated by OTC Markets operated by OTC Markets Group, Inc. Exchange Commission that there is a Group, Inc. under the ticker symbol under the ticker symbol ‘‘TAGI.’’ lack of current and accurate information ‘‘PSYC.’’ It appears to the Securities and concerning the securities of U.S.A. It appears to the Securities and Exchange Commission that there is a Floral Products, Inc. because questions Exchange Commission that there is a lack of current and accurate information have arisen as to its operating status, if lack of current and accurate information concerning the securities of Top Air any. U.S.A. Floral Products, Inc. is concerning the securities of TechLite, Manufacturing, Inc. because questions quoted on OTC Link operated by OTC Inc. because questions have arisen as to have arisen as to its operating status, if Markets Group, Inc. under the ticker its operating status, if any. TechLite, any. Top Air Manufacturing, Inc. is symbol ‘‘ROSI.’’ Inc. is quoted on OTC Link operated by quoted on OTC Link operated by OTC It appears to the Securities and OTC Markets Group, Inc. under the Markets Group, Inc. under the ticker Exchange Commission that there is a ticker symbol ‘‘THLT.’’ symbol ‘‘TPAM.’’ lack of current and accurate information It appears to the Securities and It appears to the Securities and concerning the securities of UMC Exchange Commission that there is a Exchange Commission that there is a Electronics Co. because questions have lack of current and accurate information lack of current and accurate information arisen as to its operating status, if any. concerning the securities of Telcoa concerning the securities of Trans UMC Electronics Co. is quoted on OTC International Corp. because questions World Airlines, Inc. because questions Link operated by OTC Markets Group, have arisen as to its operating status, if have arisen as to its operating status, if Inc. under the ticker symbol ‘‘UMCE.’’ any. Telcoa International Corp. is any. Trans World Airlines, Inc. is It appears to the Securities and quoted on OTC Link operated by OTC quoted on OTC Link operated by OTC Exchange Commission that there is a Markets Group, Inc. under the ticker Markets Group, Inc. under the ticker lack of current and accurate information symbol ‘‘TCOA.’’ symbol ‘‘TWAIQ.’’ concerning the securities of UniCapital It appears to the Securities and It appears to the Securities and Corp. because questions have arisen as Exchange Commission that there is a Exchange Commission that there is a to its operating status, if any. UniCapital lack of current and accurate information lack of current and accurate information Corp. is quoted on OTC Link operated concerning the securities of Teledigital, concerning the securities of Transco by OTC Markets Group, Inc. under the Inc. because questions have arisen as to Realty Trust because questions have ticker symbol ‘‘UCPC.’’ its operating status, if any. Teledigital, arisen as to its operating status, if any. It appears to the Securities and Inc. is quoted on OTC Link operated by Transco Realty Trust is quoted on OTC Exchange Commission that there is a

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lack of current and accurate information lack of current and accurate information lack of current and accurate information concerning the securities of concerning the securities of VECTRA concerning the securities of Vision Uniglobe.com Inc. because questions Technologies, Inc. because questions Twenty-One, Inc. because questions have arisen as to its operating status, if have arisen as to its operating status, if have arisen as to its operating status, if any. Uniglobe.com Inc. is quoted on any. VECTRA Technologies, Inc. is any. Vision Twenty-One, Inc. is quoted OTC Link operated by OTC Markets quoted on OTC Link operated by OTC on OTC Link operated by OTC Markets Group, Inc. under the ticker symbol Markets Group, Inc. under the ticker Group, Inc. under the ticker symbol ‘‘UGTRF.’’ symbol ‘‘VCTRQ.’’ ‘‘EYES.’’ It appears to the Securities and It appears to the Securities and It appears to the Securities and Exchange Commission that there is a Exchange Commission that there is a Exchange Commission that there is a lack of current and accurate information lack of current and accurate information lack of current and accurate information concerning the securities of UnionFed concerning the securities of VIA concerning the securities of Vistula Financial Corp. because questions have NET.WORKS, Inc. because questions Communications Services, Inc. because arisen as to its operating status, if any. have arisen as to its operating status, if questions have arisen as to its operating UnionFed Financial Corp. is quoted on any. VIA NET.WORKS, Inc. is quoted on status, if any. Vistula Communications OTC Link operated by OTC Markets OTC Link operated by OTC Markets Services, Inc. is quoted on OTC Link Group, Inc. under the ticker symbol Group, Inc. under the ticker symbol operated by OTC Markets Group, Inc. ‘‘UNFD.’’ ‘‘VNWI.’’ under the ticker symbol ‘‘VSTL.’’ It appears to the Securities and It appears to the Securities and It appears to the Securities and Exchange Commission that there is a Exchange Commission that there is a Exchange Commission that there is a lack of current and accurate information lack of current and accurate information lack of current and accurate information concerning the securities of Unison concerning the securities of Vie concerning the securities of VR Business HealthCare Corp. because questions Financial Group, Inc. because questions Brokers, Inc. because questions have have arisen as to its operating status, if have arisen as to its operating status, if arisen as to its operating status, if any. any. Unison HealthCare Corp. is quoted any. Vie Financial Group, Inc. is quoted VR Business Brokers, Inc. is quoted on on OTC Link operated by OTC Markets on OTC Link operated by OTC Markets OTC Link operated by OTC Markets Group, Inc. under the ticker symbol Group, Inc. under the ticker symbol Group, Inc. under the ticker symbol ‘‘UNHC.’’ ‘‘VIFI.’’ ‘‘VRBB.’’ It appears to the Securities and It appears to the Securities and It appears to the Securities and Exchange Commission that there is a Exchange Commission that there is a Exchange Commission that there is a lack of current and accurate information lack of current and accurate information lack of current and accurate information concerning the securities of Unitel concerning the securities of Viral concerning the securities of Washtenaw Video, Inc. because questions have Response Systems, Inc. because Group, Inc. (The) because questions arisen as to its operating status, if any. questions have arisen as to its operating have arisen as to its operating status, if Unitel Video, Inc. is quoted on OTC status, if any. Viral Response Systems, any. Washtenaw Group, Inc. (The) is Link operated by OTC Markets Group, Inc. is quoted on OTC Link operated by quoted on OTC Link operated by OTC Inc. under the ticker symbol ‘‘UTLV.’’ OTC Markets Group, Inc. under the Markets Group, Inc. under the ticker It appears to the Securities and ticker symbol ‘‘VRSI.’’ symbol ‘‘TWHR.’’ Exchange Commission that there is a It appears to the Securities and It appears to the Securities and lack of current and accurate information Exchange Commission that there is a Exchange Commission that there is a concerning the securities of UniverCell lack of current and accurate information lack of current and accurate information Holdings, Inc. because questions have concerning the securities of Viseon, Inc. concerning the securities of Watchit arisen as to its operating status, if any. because questions have arisen as to its Media, Inc. because questions have UniverCell Holdings, Inc. is quoted on operating status, if any. Viseon, Inc. is arisen as to its operating status, if any. OTC Link operated by OTC Markets quoted on OTC Link operated by OTC Watchit Media, Inc. is quoted on OTC Group, Inc. under the ticker symbol Markets Group, Inc. under the ticker Link operated by OTC Markets Group, ‘‘UVCL.’’ symbol ‘‘VSNI.’’ Inc. under the ticker symbol ‘‘WMDA.’’ It appears to the Securities and It appears to the Securities and It appears to the Securities and Exchange Commission that there is a Exchange Commission that there is a Exchange Commission that there is a lack of current and accurate information lack of current and accurate information lack of current and accurate information concerning the securities of Universal concerning the securities of Visicom concerning the securities of Wavex Automotive Industries, Inc. because International, Inc. because questions International Inc. because questions questions have arisen as to its operating have arisen as to its operating status, if have arisen as to its operating status, if status, if any. Universal Automotive any. Visicom International, Inc. is any. Wavex International Inc. is quoted Industries, Inc. is quoted on OTC Link quoted on OTC Link operated by OTC on OTC Link operated by OTC Markets operated by OTC Markets Group, Inc. Markets Group, Inc. under the ticker Group, Inc. under the ticker symbol under the ticker symbol ‘‘UVSLQ.’’ symbol ‘‘VSCM.’’ ‘‘WVXI.’’ It appears to the Securities and It appears to the Securities and It appears to the Securities and Exchange Commission that there is a Exchange Commission that there is a Exchange Commission that there is a lack of current and accurate information lack of current and accurate information lack of current and accurate information concerning the securities of Value concerning the securities of Vision concerning the securities of Wayne’s Added Communications, Inc. because Technology Corp. because questions Famous Phillies, Inc. because questions questions have arisen as to its operating have arisen as to its operating status, if have arisen as to its operating status, if status, if any. Value Added any. Vision Technology Corp. is quoted any. Wayne’s Famous Phillies, Inc. is Communications, Inc. is quoted on OTC on OTC Link operated by OTC Markets quoted on OTC Link operated by OTC Link operated by OTC Markets Group, Group, Inc. under the ticker symbol Markets Group, Inc. under the ticker Inc. under the ticker symbol ‘‘VACI.’’ ‘‘VSTCQ.’’ symbol ‘‘WFPI.’’ It appears to the Securities and It appears to the Securities and It appears to the Securities and Exchange Commission that there is a Exchange Commission that there is a Exchange Commission that there is a

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lack of current and accurate information lack of current and accurate information Research Corp. because questions have concerning the securities of West Coast concerning the securities of arisen as to its operating status, if any. Entertainment Corp. because questions WorldModal Network Services, Inc. York Research Corp. is quoted on OTC have arisen as to its operating status, if because questions have arisen as to its Link operated by OTC Markets Group, any. West Coast Entertainment Corp. is operating status, if any. WorldModal Inc. under the ticker symbol ‘‘YORK.’’ quoted on OTC Link operated by OTC Network Services, Inc. is quoted on OTC It appears to the Securities and Markets Group, Inc. under the ticker Link operated by OTC Markets Group, Exchange Commission that there is a symbol ‘‘WCEC.’’ Inc. under the ticker symbol ‘‘WMDL.’’ lack of current and accurate information It appears to the Securities and It appears to the Securities and concerning the securities of Exchange Commission that there is a Exchange Commission that there is a ZeroPlus.com, Inc. because questions lack of current and accurate information lack of current and accurate information have arisen as to its operating status, if concerning the securities of Westbury concerning the securities of Worldwide any. ZeroPlus.com, Inc. is quoted on Metals Group, Inc. because questions Data, Inc. because questions have arisen OTC Link operated by OTC Markets have arisen as to its operating status, if as to its operating status, if any. Group, Inc. under the ticker symbol any. Westbury Metals Group, Inc. is Worldwide Data, Inc. is quoted on OTC ‘‘ZPLSQ.’’ quoted on OTC Link operated by OTC Link operated by OTC Markets Group, The Commission is of the opinion that Markets Group, Inc. under the ticker Inc. under the ticker symbol ‘‘WWDI.’’ the public interest and the protection of symbol ‘‘WMET.’’ It appears to the Securities and investors require a suspension of trading It appears to the Securities and Exchange Commission that there is a in the securities of the above-listed Exchange Commission that there is a lack of current and accurate information companies. lack of current and accurate information concerning the securities of Wright Therefore, it is ordered, pursuant to concerning the securities of Wilshire (G.F.) Steel & Wire Co. because Section 12(k) of the Securities Exchange Technologies, Inc. because questions questions have arisen as to its operating Act of 1934, that trading in the have arisen as to its operating status, if status, if any. Wright (G.F.) Steel & Wire securities of the above-listed companies any. Wilshire Technologies, Inc. is Co. is quoted on OTC Link operated by is suspended for the period from quoted on OTC Link operated by OTC OTC Markets Group, Inc. under the 9:30 a.m. EDT on May 14, 2012 through Markets Group, Inc. under the ticker ticker symbol ‘‘WRGFP.’’ 11:59 p.m. EDT on May 25, 2012. symbol ‘‘WILK.’’ It appears to the Securities and It appears to the Securities and Exchange Commission that there is a By the Commission. Exchange Commission that there is a lack of current and accurate information Jill M. Peterson, lack of current and accurate information concerning the securities of Wright Assistant Secretary. concerning the securities of Winfield (G.F.) Steel & Wire Co. because [FR Doc. 2012–11962 Filed 5–14–12; 4:15 pm] Capital Corp. because questions have questions have arisen as to its operating BILLING CODE 8011–01–P arisen as to its operating status, if any. status, if any. Wright (G.F.) Steel & Wire Winfield Capital Corp. is quoted on Co. is quoted on OTC Link operated by OTC Link operated by OTC Markets OTC Markets Group, Inc. under the SECURITIES AND EXCHANGE Group, Inc. under the ticker symbol ticker symbol ‘‘WRGF.’’ COMMISSION ‘‘WCAP.’’ It appears to the Securities and It appears to the Securities and Exchange Commission that there is a [Release No. 34–66965; File No. SR– Exchange Commission that there is a lack of current and accurate information NYSEARCA–2012–38] lack of current and accurate information concerning the securities of Wright concerning the securities of Wismer- Brothers Energy, Inc. because questions Self-Regulatory Organizations; NYSE Martin, Inc. because questions have have arisen as to its operating status, if Arca, Inc.; Notice of Filing and arisen as to its operating status, if any. any. Wright Brothers Energy, Inc. is Immediate Effectiveness of Proposed Wismer-Martin, Inc. is quoted on OTC quoted on OTC Link operated by OTC Rule Change To Amend NYSE Arca Link operated by OTC Markets Group, Markets Group, Inc. under the ticker Equities Rule 5.2(j)(1), the Exchange’s Inc. under the ticker symbol ‘‘WSMM.’’ symbol ‘‘WOIL.’’ ‘‘Other Securities’’ Listing Standard, It appears to the Securities and It appears to the Securities and To Delete a Provision Providing That If Exchange Commission that there is a Exchange Commission that there is a a Security Listed Under the Rule lack of current and accurate information lack of current and accurate information Contains Redemption Provisions, the concerning the securities of Womens concerning the securities of XI Tec, Inc. Redemption Price Must Be at Least Golf Unlimited, Inc. because questions because questions have arisen as to its $3.00 Per Unit have arisen as to its operating status, if operating status, if any. XI Tec, Inc. is any. Womens Golf Unlimited, Inc. is quoted on OTC Link operated by OTC May 11, 2012. quoted on OTC Link operated by OTC Markets Group, Inc. under the ticker Pursuant to Section 19(b)(1) of the Markets Group, Inc. under the ticker symbol ‘‘XTIC.’’ Securities Exchange Act of 1934 symbol ‘‘WGLF.’’ It appears to the Securities and (‘‘Act’’) 1 and Rule 19b–4 thereunder,2 It appears to the Securities and Exchange Commission that there is a notice is hereby given that, on April 30, Exchange Commission that there is a lack of current and accurate information 2012, NYSE Arca, Inc. (‘‘Exchange’’ or lack of current and accurate information concerning the securities of Xpedior, ‘‘NYSE Arca’’) filed with the Securities concerning the securities of Woodroast Inc. because questions have arisen as to and Exchange Commission Systems, Inc. because questions have its operating status, if any. Xpedior, Inc. (‘‘Commission’’) the proposed rule arisen as to its operating status, if any. is quoted on OTC Link operated by OTC change as described in Items I and II Woodroast Systems, Inc. is quoted on Markets Group, Inc. under the ticker below, which Items have been prepared OTC Link operated by OTC Markets symbol ‘‘XPDR.’’ by the self-regulatory organization. The Group, Inc. under the ticker symbol It appears to the Securities and Commission is publishing this notice to ‘‘WRSI.’’ Exchange Commission that there is a It appears to the Securities and lack of current and accurate information 1 15 U.S.C.78s(b)(1). Exchange Commission that there is a concerning the securities of York 2 17 CFR 240.19b–4.

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solicit comments on the proposed rule like certain other national securities issues that contain redemption change from interested persons. exchanges, refers to such securities as provisions.7 5 The third and final extension of the I. Self-Regulatory Organization’s ‘‘Other Securities.’’ In addition, NYSE Arca Equities Rule 5.2(j)(4) (‘‘Index- Pilot Program expired on November 30, Statement of the Terms of Substance of 2008. After the final extension of the the Proposed Rule Change linked Exchangeable Notes’’) and NYSE Arca Equities Rule 5.2(j)(6) (‘‘Equity Pilot Program in 2008, NYSE Euronext, The Exchange proposes to amend Index-Linked Securities, Commodity- the ultimate parent company of NYSE NYSE Arca Equities Rule 5.2(j)(1), the Linked Securities, Currency-Linked Arca decided to discontinue initial Exchange’s ‘‘Other Securities’’ listing listing of equity securities of operating standard, to delete a provision Securities, Fixed Income Index-Linked Securities, Futures-Linked Securities companies on NYSE Arca. The listing providing that if a security listed under standards adopted under the Pilot and Multifactor Index-Linked the rule contains redemption provisions Program, as amended, were not adopted Securities’’) (securities listed under any the redemption price must be at least on a permanent basis prior to the $3.00 per unit. The text of the proposed of these rules and securities listed under expiration of the Pilot Program because rule change is available at the Exchange, NYSE Arca Equities Rule 5.2(j)(1) shall of that decision. the Commission’s Public Reference be referred to herein as ‘‘hybrid The Exchange now proposes to amend Room, and www.nyse.com. securities’’) require that, in the case of its rules to delete NYSE Arca Equities securities listed under those rules, both II. Self-Regulatory Organization’s Rule 5.2(j)(1)(E), which provides that the issue and the issuer must comply Statement of the Purpose of, and the redemption price must be at least Statutory Basis for, the Proposed Rule with the requirements of NYSE Arca $3.00 per unit for those issues that Change Equities Rule 5.2(j)(1), except to the contain redemption provisions. The extent that those rules explicitly provide Exchange proposes to delete this In its filing with the Commission, the otherwise. provision in order to bring the NYSE self-regulatory organization included Arca Equities rule in line with those of statements concerning the purpose of, The Exchange amended its initial and continued listing standards for other exchanges and, therefore, to and basis for, the proposed rule change remain competitive in the marketplace.8 and discussed any comments it received operating companies on a pilot program basis in 2006 (the ‘‘Pilot Program’’) and The Exchange notes that, while it does on the proposed rule change. The text not at this time list any securities under subsequently extended that Pilot of those statements may be examined at NYSE Arca Equities Rule 5.2(j)(1), NYSE Program three times.6 The Pilot Program the places specified in Item IV below. Arca Rule 5.2(j)(4) and NYSE Arca The Exchange has prepared summaries, also made minor changes to a number Equities Rule 5.2(j)(6) both incorporate set forth in sections A, B, and C below, of other rules, including NYSE Arca certain requirements from NYSE Arca of the most significant parts of such Equities Rule 5.2(j)(1), which was Equities Rule 5.2(j)(1), including those statements. amended to (i) add a pre-tax income the Exchange proposes to delete A. Self-Regulatory Organization’s initial listing requirement of $1,000,000 pursuant to this filing. As the Exchange Statement of the Purpose of, and the and (ii) to make some minor non- continues to regularly list securities Statutory Basis for, the Proposed Rule substantive stylistic changes. The under NYSE Arca Equities 5.2(j)(6), the Change Exchange amended rules included in proposed amendment has significant the Pilot Program on several occasions implications for the Exchange’s 1. Purpose while the Pilot Program was competitive position. The Exchange proposes to amend operational, including by means of a When the Exchange first adopted its NYSE Arca Equities Rule 5.2(j)(1), the rule filing approved by the SEC in ‘‘Other Securities’’ listing standard in Exchange’s initial listing standard for which the Exchange deleted NYSE Arca 1994, it adopted a standard that was the ‘‘Other Securities,’’ 3 as set forth below. Equities Rule 5.2(j)(1)(E), which same in all material respects as the Under NYSE Arca Equities Rule provided that the redemption price standard adopted by the American 5.2(j)(1), the Exchange may approve for must be at least $3.00 per unit for those Stock Exchange (‘‘Amex’’) (predecessor listing and trading securities which to NYSE Amex) in 1990. At the time cannot be readily categorized under the 5 NYSE Amex’s initial listing standards for ‘‘Other that the Amex adopted its ‘‘Other listing criteria for common and Securities’’ are set forth in Section 107A of the Securities’’ standard, the market for preferred stocks, bonds, debentures, NYSE Amex Company Guide. See Securities exchange-traded hybrid securities was warrants, contingent value rights, and Exchange Act Release No. 27753 (March 1, 1990), in its infancy. The Exchange unit investment trusts.4 The Exchange, 55 FR 8626 (March 8, 1990) (SR–Amex–89–29) understands that there was a concern (approving the initial listing criteria for ‘‘Other Securities’’). that investors did not have a 3 See Securities Exchange Act Release No. 34429 6 The Commission initially approved the Pilot sophisticated enough understanding of (July 22, 1994), 59 FR 38998 (August 1, 1994) (SR– Program for six months, until May 29, 2007. See how hybrid securities performed and it PSE–93–12) (approving, among other things, the Securities Exchange Act Release No. 54796 initial listing standards for ‘‘Other Securities’’ of the was believed that it was therefore Pacific Stock Exchange (‘‘PCX’’), the predecessor (November 20, 2006), 71 FR 69166 (November 29, necessary to protect investors against entity to NYSE Arca). 2006) (SR–NYSEArca–2006–85). The Pilot was the possibility that they could lose most subsequently extended for an additional six 4 NYSE Arca Equities Rule 5.2(j)(1) currently months, until November 30, 2007. See Securities or all of their investment in a hybrid states that the Exchange will consider listing any security. Consequently, the Amex (and, security not otherwise covered by the requirements Exchange Act Release No. 55838 (May 31, 2007), 72 of NYSE Arca Equities Rules 5.2(c) through (h). See FR 31642 (June 7, 2007) (SR–NYSEArca–2007–51). NYSE Arca Equities Rule 5.2(j)(1); see, e.g., NYSE The Pilot was then extended for an additional six 7 See Securities Exchange Act Release No. 56906 Arca Equities Rules 5.2(c) (listing criteria for months, until May 31, 2008. See Securities (December 5, 2007), 72 FR 70636 (December 12, common stock); 5.2(d) (listing criteria for preferred Exchange Act Release No. 56885 (December 3, 2007) (SR–NYSEArca–2007–103). stock and similar issues and secondary classes of 2007), 72 FR 69272 (December 7, 2007) (SR– 8 See Securities Exchange Act Release No. 37165 common stock; 5.2(e) (listing criteria for bonds and NYSEArca–2007–123). The Pilot was finally (May 3, 1996), 61 FR 21215 (May 9, 1996) (SR– debentures); 5.2(f) (listing criteria for warrants); extended for an additional six months, until Amex–96–15) (eliminating the U.S. dollar cash 5.2(g) (listing criteria for contingent value rights); November 30, 2008. See Securities Exchange Act settlement and minimum redemption price and 5.2(h) (listing criteria for unit investment Release No. 57922 (June 4, 2008), 73 FR 33137 (June requirements for ‘‘Hybrid Securities’’ in Section trusts). 11, 2008) (SR–NYSEArca–2008–55). 107A of the NYSE Amex Company Guide).

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following the Amex’s lead, the PCX) 2. Statutory Basis operative for 30 days from the date on adopted a requirement that the issuer of NYSE Arca believes that the proposed which it was filed, or such shorter time a mandatorily redeemable security rule change is consistent with Section as the Commission may designate, if could not redeem such security at a 6(b) 9 of the Securities Exchange Act of consistent with the protection of price of less than $3.00. This provision 1934 (the ‘‘Act’’),10 in general, and investors and the public interest, the provided downside protection to furthers the objectives of Section 6(b)(5) proposed rule change has become investors and ensured that they would of the Act,11 in particular in that it is effective pursuant to Section 19(b)(3)(A) 12 not unknowingly purchase a security designed to promote just and equitable of the Act and Rule 19b–4 13 that would ultimately have little or no principles of trade, to foster cooperation thereunder. intrinsic value. The NYSE never and coordination with persons engaged A proposed rule change filed under adopted such a requirement and the in regulating, clearing, settling, Rule 19b–4(f)(6) normally may not Amex deleted this provision from its processing information with respect to, become operative prior to 30 days after own rule in 1996 to conform to the and facilitating transactions in the date of filing. At any time within 60 ‘‘Other Securities’’ rule of the NYSE. securities, to remove impediments to days of the filing of the proposed rule The Exchange believes that a and perfect the mechanism of a free and change, the Commission summarily may minimum redemption price requirement open market and a national market temporarily suspend such rule change if may provide a desirable protection for system, and, in general, to protect it appears to the Commission that such investors in the case of certain hybrid investors and the public interest. action is necessary or appropriate in the securities. In that regard, the Exchange Specifically, the proposed amendment public interest, for the protection of investors, or otherwise in furtherance of notes that after adoption of the proposed is consistent with the protection of the purposes of the Act.14 amendment issuers would still have the investors and the public interest ability to include a minimum because (i) if the automatic redemption IV. Solicitation of Comments redemption price provision in their requirement was no longer applicable, Interested persons are invited to securities when doing so is desirable. investors would have greater flexibility submit written data, views, and However, the Exchange notes that in that they would be able to choose arguments concerning the foregoing, requiring a minimum redemption price either to continue to hold a security including whether the proposed rule of $3.00 deprives investors of the ability whose value had significantly declined change is consistent with the Act. to make the sort of investment choices (on the basis that its value might Comments may be submitted by any of that an investor can make when an recover) or sell the security to limit their the following methods: equity security declines in value, as it losses and (ii) issuers will still have the essentially forces the issuer to redeem ability to include a minimum Electronic Comments the securities as soon as possible after redemption price provision in their • Use the Commission’s Internet they fall below that price, as the issuer securities when doing so is desirable. In comment form (http://www.sec.gov/ would otherwise be at risk of having to addition, the proposed amendment is rules/sro.shtml); or redeem the securities at a premium. In designed to remove an impediment to a • Send an email to rule- the absence of this automatic free and open market in that it would [email protected]. Please include File redemption, investors would have remove a requirement which is not Number SR–NYSEArca–2012–38 on the greater flexibility in that they would be included in the comparable rules of subject line. competitor exchanges and would able to choose either to continue to hold Paper Comments a security whose value had significantly therefore promote competition. • declined (on the basis that its value Send paper comments in triplicate B. Self-Regulatory Organization’s to Elizabeth M. Murphy, Secretary, might recover) or sell the security to Statement on Burden on Competition avoid further losses. By contrast, the Securities and Exchange Commission, current requirement would force The Exchange does not believe that 100 F Street NE., Washington, DC investors to realize the loss associated the proposed rule change will impose 20549–1090. with the difference between their any burden on competition that is not All submissions should refer to File purchase price and the $3.00 necessary or appropriate in furtherance Number SR–NYSEArca–2012–38. This redemption price. The Exchange also of the purposes of the Act. file number should be included on the notes that exchange-traded hybrid C. Self-Regulatory Organization’s subject line if email is used. To help the securities now typically provide for the Statement on Comments on the Commission process and review your possibility of redemption of large blocks Proposed Rule Change Received From comments more efficiently, please use of the securities at the option of the Members, Participants, or Others only one method. The Commission will investor at regular intervals. As such, an post all comments on the Commission’s No written comments were solicited investor who owns a significant amount Internet Web site (http://www.sec.gov/ or received with respect to the proposed of the securities and who is concerned rules/sro.shtml). Copies of the rule change. about the trend in the value of the submission, all subsequent reference asset for a hybrid security and III. Date of Effectiveness of the amendments, all written statements its implications for the future value of Proposed Rule Change and Timing for with respect to the proposed rule the hybrid security itself is able to Commission Action 12 require the issuer to redeem his Because the proposed rule change 15 U.S.C. 78s(b)(3)(A). securities, thereby limiting his exposure 13 17 CFR 240.19b–4. In addition, Rule 19b– does not: (i) Significantly affect the 4(f)(6)(iii) requires the Exchange to give the to future declines in the value of the protection of investors or the public Commission written notice of the Exchange’s intent hybrid security. Finally, the Exchange interest; (ii) impose any significant to file the proposed rule change, along with a brief notes that the ‘‘Other Securities’’ burden on competition; and (iii) become description and text of the proposed rule change, standards of other national securities at least five business days prior to the date of filing of the proposed rule change, or such shorter time exchanges, including the NYSE, NYSE 9 15 U.S.C. 78f(b). as designated by the Commission. The Exchange Amex and Nasdaq, do not include 10 15 U.S.C. 78a. has satisfied this requirement. mandatory redemption provisions. 11 15 U.S.C. 78f(b)(5). 14 15 U.S.C. 78s(b)(3)(C).

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change that are filed with the I. Self-Regulatory Organization’s an LMM, and the ETP therefore trades Commission, and all written Statement of the Terms of Substance of without an LMM assigned to it. The communications relating to the the Proposed Rule Change Exchange operates under the price-time proposed rule change between the The Exchange proposes a pilot priority model for all market Commission and any person, other than program to create a Lead Market Maker participants, so there is no distinct those that may be withheld from the (‘‘LMM’’) Issuer Incentive Program transactional benefit to being assigned as an LMM. However, LMMs are public in accordance with the (‘‘Fixed Incentive Program’’) for issuers obligated to meet certain obligations and provisions of 5 U.S.C. 552, will be of certain exchange-traded products requirements 5 and therefore incur available for Web site viewing and (‘‘ETPs’’) listed on the Exchange. The greater risks than other market printing in the Commission’s Public text of the proposed rule change is participants on the Exchange. The risks Reference Room, 100 F Street NE., available at the Exchange, include those associated with managing Washington, DC 20549, on official www.nyse.com, the Commission’s position inventory as well as those business days between the hours of Public Reference Room, and the associated with maintaining quotes. 10:00 a.m. and 3:00 p.m. Copies of such Commission’s Web site at www.sec.gov. filing also will be available for Inventory risks may be higher for certain inspection and copying at the principal II. Self-Regulatory Organization’s ETPs with low volume and low shares office of the Exchange. All comments Statement of the Purpose of, and outstanding because there are fewer received will be posted without change; Statutory Basis for, the Proposed Rule opportunities to turn over positions in the Commission does not edit personal Change such ETPs and the accumulation of costs from carrying those positions as identifying information from In its filing with the Commission, the well as positions in the underlying submissions. You should submit only self-regulatory organization included securities used for hedging.6 LMMs are information that you wish to make statements concerning the purpose of, required to continuously quote on both available publicly. All submissions and basis for, the proposed rule change sides of the market; therefore, they must should refer to File Number SR– and discussed any comments it received be willing to buy as well as sell by NYSEArca–2012–38 and should be on the proposed rule change. The text submitted on or before June 7, 2012. posting displayed and firm quotes on of those statements may be examined at the Exchange. When there is a low For the Commission, by the Division of the places specified in Item IV below. volume of shares outstanding, there is Trading and Markets, pursuant to delegated The Exchange has prepared summaries, authority.15 often less supply for securities lending set forth in sections A, B, and C below, purposes. In order to meet settlement Kevin M. O’Neill, of the most significant parts of such requirements established by Regulation Deputy Secretary. statements. SHO,7 LMMs acting in ETPs with low [FR Doc. 2012–11913 Filed 5–16–12; 8:45 am] A. Self-Regulatory Organization’s shares outstanding are often required to BILLING CODE 8011–01–P Statement of the Purpose of, and maintain a long ETP position. Quoting Statutory Basis for, the Proposed Rule risks exist due to the complexity of Change pricing ETPs and the potential for SECURITIES AND EXCHANGE human and/or technological errors. COMMISSION 1. Purpose ETPs are open-ended and derivatively [Release No. 34–66966; File No. SR– The Exchange proposes a pilot priced securities that typically track NYSEArca–2012–37] program to create a Fixed Incentive returns of underlying assets. If, due to Program for issuers of certain ETPs human error such as the input of an Self-Regulatory Organizations; NYSE listed on the Exchange. inaccurate underlying basket or Arca, Inc.; Notice of Filing of Proposed technological error such as a static data Rule Change Proposing a Pilot Background Program To Create a Lead Market Under the current Fee Schedule for 5 An LMM is subject to the obligations for Market Maker Issuer Incentive Program for listings, an issuer of an ETP is required Makers that are set forth in NYSE Arca Equities Rule 7.23 and the minimum performance standards Issuers of Certain Exchange-Traded to pay a Listing Fee that ranges from that are referenced in NYSE Arca Equities Rule Products Listed on NYSE Arca, Inc. $5,000 to $45,000.3 ETP issuers also pay 7.24. Under NYSE Arca Equities Rule 7.24, the a graduated Annual Fee based on the minimum performance standards include (i) May 11, 2012. number of shares of the ETP that are percent of time at the National Best Bid or Offer Pursuant to Section 19(b)(1) of the (‘‘NBBO’’), (ii) percent of executions better than the outstanding. The Annual Fee ranges NBBO, (iii) average displayed size, (iv) average Securities Exchange Act of 1934 (‘‘Act’’ from $5,000 to $55,000. quoted spread, and (v) in the event the security is or ‘‘Exchange Act’’) 1 and Rule 19b–4 A qualified Market Maker may request a derivative security, the ability to transact in thereunder,2 notice is hereby given that, underlying markets. An LMM’s minimum an assignment as an LMM for an ETP, performance standards are higher than those of a on April 27, 2012, NYSE Arca, Inc. and the request is subject to approval by Designated Market Maker and are described in an (‘‘Exchange’’ or ‘‘NYSE Arca’’) filed the Exchange.4 For some ETPs, no official NYSE Arca policy titled NYSE Arca LMM with the Securities and Exchange Market Maker requests an assignment as Requirements, which may be amended from time to Commission (‘‘SEC’’ or ‘‘Commission’’) time. The minimum performance standards are measured daily and reviewed as a monthly average. the proposed rule change as described 3 The Exchange has one Schedule of Fees and The Exchange believes that they are stringent and in Items I, II and III below, which Items Charges for Exchange Services that is for listings help foster liquidity provision and stability in the have been substantially prepared by the (‘‘Listing Fee Schedule’’) and another that is for market. References in this rule filing, including in trade-related charges (‘‘Trading Fee Schedule’’). To the proposed rule text, to an LMM’s minimum Exchange. The Commission is differentiate them, the Exchange proposes to change performance standards mean those set forth in publishing this notice to solicit the name of the former to ‘‘SCHEDULE OF FEES NYSE Arca LMM Requirements. comments on the proposed rule change AND CHARGES FOR EXCHANGE LISTING 6 Costs of carrying ETP inventories include the from interested persons. SERVICES.’’ ETPs are generally classified as either expense ratio, which includes the management fee, Derivative Securities Products or Structured financing costs or the cost of capital, and the Products for purposes of the Listing Fee Schedule. opportunity cost of allocating capital. At times it 15 17 CFR 200.30–3(a)(12). See Listing Fee Schedule, available at http:// may also include stock loan costs for maintaining 1 15 U.S.C.78s(b)(1). www.nyse.com/pdfs/NYSEArca_Listing_Fees.pdf. a hedge in hard-to-borrow securities. 2 17 CFR 240.19b–4. 4 See NYSE Arca Equities Rule 7.22(d). 7 See 17 CFR 242.203–204.

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feed caused by networking or hardware the Exchange currently provides LMMs LMM’s volume traded. Trading volume breakdowns, the LMM’s quote diverges with an opportunity to receive for different ETPs can vary significantly from the underlying assets value, the incrementally higher transaction credits and result in a corresponding variance LMMs are more likely to buy (sell) at and incur incrementally lower in LMM trading volume. The benefit of prices that are above (below) theoretical transaction fees (‘‘LMM Rates’’) acting as an LMM can therefore vary fair values. Because LMMs are required compared to standard liquidity maker- significantly depending upon the ETP to to continuously quote on both sides of taker rates (‘‘Standard Rates’’).8 LMM which the LMM is assigned. There are the market and maintain certain Rates are intended to balance the fewer financial benefits for LMM minimum performance standards, they increased risks and requirements assignments in ETPs with lower CADV are more likely to face these types of assumed by LMMs. Accordingly, the than ETPs with higher CADV. The table risks because other market participants value of acting as an LMM could be below provides hypothetical examples have more freedom to withdraw quotes upon experiencing difficulties or measured by the incremental difference based on assumptions that NYSE Arca unusual market conditions. in the transaction credits or fees under market share equals 22%, LMM To incentivize firms to take on the the LMM Rates as compared to the participation rate equals 20%, LMM LMM designation and foster liquidity Standard Rates. However, the absolute make ratio equals 80%, and LMM take provision and stability in the market, incremental difference depends on the ratio equals 20%: 9

Annual Annual transaction Annual Symbol CADV transaction credit/fee incremental credit/fee (standard difference (LMM rates) rates)

ABC ...... 25,000,000 $637,560 $332,640 $304,920 DEF ...... 5,100,000 130,062 67,859 62,204 GHI ...... 2,500,000 74,844 33,264 41,580 JKL ...... 1,100,000 32,931 14,636 18,295 MNO ...... 750,000 25,780 9,979 15,800 PQR ...... 500,000 17,186 6,653 10,534 STU ...... 100,000 3,437 1,331 2,107 VWX ...... 10,000 344 133 211 YZ ...... 1,000 34 13 21

The Exchange believes that the participants may be forgoing LMM obligations, minimum performance assignment of an LMM, which is held to assignments in ETPs—instead choosing standards, and other risks described higher standards as compared to Market to trade ETPs as Market Makers or ETP above. To illustrate how this change has Makers and other market participants, is Holders with lower or no obligations or transpired, the following table a critical component of the promotion of minimum performance standards— highlights the increasing proportion of a consistent, fair and orderly market in because the incentives to serve as an new NYSE Arca ETPs that are listed ETPs on the Exchange. However, market LMM are insufficient to outweigh the without an LMM present:

2003 2004 2005 2006 2007 2008 2009 2010 2011

New NYSE Arca ETP Listings ...... 11 34 49 133 223 195 124 196 297 Listed with LMM...... 11 34 49 133 218 190 121 175 271 Listed without LMM...... 0 0 0 0 5 5 3 21 26

Since January 2008, nearly 100% of value relative to risks of acting as the Fixed Incentive Program would all LMM withdrawal requests for ETPs LMM for certain ETPs. continue to pay the currently applicable Listing and Annual Fees. Such issuer already listed and trading were made for Proposed Fixed Incentive Program securities that exhibited low CADV in also could elect to pay the Exchange an the period prior to the withdrawal The Exchange proposes to add new Optional Incentive Fee, which would request being made. This behavior NYSE Arca Equities Rule 8.800, which range from $10,000 to $40,000 per signals a connection between low CADV would offer a pilot program to year.10 and low interest levels from firms incentivize Market Makers to undertake Proposed NYSE Arca Equities Rule seeking to act as the LMM. Likewise, it LMM assignments in ETPs. An issuer of 8.800(a) would describe the ETPs that supports the assertion that there is less an ETP that participates in the proposed would be eligible for inclusion in the

8 The Exchange generally employs a maker-taker $0.0022 to $0.0033 per share. Standard NYSE Arca LMM volume that takes liquidity. The formula for transactional fee structure, whereby an ETP Holder Tape B Take Rates (fees charged for removing calculating the transaction credit is as follows: that removes liquidity is charged a fee (‘‘Take liquidity) range from $0.0026 to $0.0030 per share. (LMM make volume * Make Rate) + (LMM take Rate’’), and an Equity Trading Permit Holder (‘‘ETP See the Trading Fee Schedule, available at https:// volume * Take Rate). LMM make volume equals Holder’’) that provides liquidity receives a credit usequities.nyx.com/sites/usequities.nyx.com/files/ CADV * NYSE Arca market share * LMM (‘‘Make Rate’’). The Take Rate for LMMs is currently nyse_arca_marketplace_fees__3_01_12_.pdf. participation rate * LMM make ratio. LMM take $0.0025 per share. The Make Rate for LMMs is 9 Market share is the percentage of CADV traded volume equals CADV * NYSE Arca market share * currently between $0.0035 and $0.0045 per share on NYSE Arca. Participation rate is the percentage LMM participation rate * LMM take ratio. depending on consolidated average daily volume of NYSE Arca volume traded by the LMM. Make 10 The Exchange would provide notification on its (‘‘CADV’’). Standard NYSE Arca Tape B Make Rates ratio is the percentage of LMM volume that Web site regarding the ETPs participating in the (rebates paid for adding liquidity) range from provides liquidity. Take ratio is the percentage of Fixed Incentive Program and the assigned LMMs.

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Fixed Incentive Program. Eligible required to be current in all payments be prorated accordingly. As noted products would include any ETP that is due to the Exchange if it had other above, the issuer in turn would receive listed on the Exchange as of the securities listed on the Exchange. In a prorated credit that could be used commencement of the pilot period or addition, the issuer would be required toward the following quarterly LMM that becomes listed during the pilot to be current in all payments due to the Payment for that particular ETP or period, and the listing is under NYSE Exchange and compliant with others that they have elected to Arca Equities Rules 5.2(j)(3) (Investment continuing listing standards for the ETP participate in the Fixed Incentive Company Units), 5.2(j)(5) (Equity Gold proposed for inclusion if the issuer Program. As is the case with all Shares), 5.2(j)(6) (Equity Index-Linked elected to participate in the Fixed liquidity-adding credits currently Securities, Commodity-Linked Incentive Program after listing such ETP payable to NYSE Arca members, LMM Securities, Currency-Linked Securities, on the Exchange. Payments would be paid directly by the Fixed Income Index-Linked Securities, Proposed NYSE Arca Equities Rule Exchange from its general revenues. Futures-Linked Securities, and 8.800(c) would describe the process for Proposed NYSE Arca Equities Rule Multifactor Index-Linked Securities), the payment of the Optional Incentive 8.800(e) would describe the 8.100 (Portfolio Depositary Receipts), Fee for each ETP. The Optional circumstances for withdrawal from the 8.200 (Trust Issued Receipts), 8.201 Incentive Fee would be paid by the Fixed Incentive Program and a (Commodity-Based Trust Shares), 8.202 issuer to the Exchange in quarterly reallocation process. If an ETP no longer (Currency Trust Shares), 8.203 installments for each participating ETP met continuing listing standards or is (Commodity Index Trust Shares), 8.204 at the beginning of each quarter and being liquidated, it would be (Commodity Futures Trust Shares), prorated if the issuer commences automatically withdrawn from the Fixed 8.300 (Partnership Units), 8.600 participation for an ETP in the Fixed Incentive Program as of the ETP (Managed Fund Shares), and 8.700 Incentive Program after the beginning of suspension date. In addition, NYSE (Managed Trust Securities). a quarter. The issuer would receive a Arca, in its discretion, could allow an Proposed NYSE Arca Equities Rule prorated credit from the Exchange issuer to withdraw an ETP from the 8.800(b)(1) would describe the issuer’s following the end of the quarter if the Fixed Incentive Program before the end application process. An issuer that LMM did not meet its minimum of the pilot if the assigned LMM was wishes to have an ETP participate in the performance standards for an ETP in unable to meet its minimum Fixed Incentive Program and pay the any given month in such quarter. The performance standards for any two of Exchange an Optional Incentive Fee credit would be applied against the the three months of a quarter or five would be required to submit a written issuer’s next quarterly installment of the months during the pilot and no other application in a form prescribed by the Optional Incentive Fee for the ETP, or qualified ETP Holder was able to take Exchange for each ETP. The issuer otherwise credited or refunded to the over the assignment. could elect to participate at the time of issuer if the ETP was withdrawn from An LMM also could withdraw from listing or thereafter at the beginning of the Fixed Incentive Program. If an issuer all of its ETP assignments in the Fixed each quarter during the pilot period. An did not pay its quarterly installments to Incentive Program. Alternatively, NYSE issuer could not have more than five the Exchange on time and the ETP Arca, in its discretion, could allow an existing ETPs, that are listed on the continued to be listed, the Exchange LMM to withdraw from a particular ETP Exchange prior to pilot [sic], participate would continue to credit the LMM as before the end of the pilot period if the in the Fixed Incentive Program. The described in proposed Rule 8.800(d) Exchange determined that there were Exchange would communicate the below, except that after two quarters, if extraneous circumstances that ETP(s) proposed for inclusion in the an issuer was not current in its quarterly prevented the LMM from meeting its Fixed Incentive Program on a written installments for an ETP, such ETP minimum performance standards for solicitation that would be sent to all would be automatically terminated from such ETP that did not affect its other qualified LMM firms 11 along with the the Fixed Incentive Program. ETP assignments in the Fixed Incentive Optional Incentive Fee the issuer Proposed NYSE Arca Equities Rule Program. In either such event, the proposes to pay the Exchange for each 8.800(d) would describe the LMM LMM’s ETP(s) would be reallocated as ETP. The permitted range for the Payments by the Exchange. Under this described below. Optional Incentive Fee would be set provision, the Exchange would credit an If an LMM, for a particular ETP, did forth in the Exchange’s Fee Schedule. LMM for the LMM Payment, which not meet or exceed its minimum The issuer and the LMM thereafter would be equal to the Optional performance standards for any two of would agree upon the final Optional Incentive Fee paid by the issuer, less an the three months of a quarter or five Incentive Fee for each ETP. If more than Exchange administration fee set forth in months during the pilot, or chose to one qualified LMM proposed to serve as the Fee Schedule.12 An LMM that withdraw from the Fixed Incentive such, the issuer would choose the LMM. receives an LMM Payment would not be Program, and at least one other qualified Proposed NYSE Arca Equities Rule eligible for LMM Rates for such ETP Market Maker agreed to become the 8.800(b)(2) would set forth eligibility under the Exchange’s Fee Schedule assigned LMM under the Fixed requirements for issuers’ participation while participating in the Fixed Incentive Program, then the ETP would in the Fixed Incentive Program. To be Incentive Program but would instead be be reallocated via the written eligible to participate in the Fixed subject to Standard Rates.13 solicitation process described above. Incentive Program, an issuer would be The Exchange would credit an LMM The issuer could select another LMM for the LMM Payment at the end of each and renegotiate the Optional Incentive 11 The written solicitation would be included in quarter. If an LMM did not meet or Fee. The reallocation process would be the Green Sheet, which is the common term for an completed no sooner than the end of the email communication sent by NYSE Arca staff exceed its minimum performance members to all qualified LMMs prior to an LMM standards for the ETP for a particular current quarter and no later than the selection. The Green Sheet includes, among other month, then the LMM Payment would end of the following quarter. things, the name, symbol, and description of the The proposed LMM Payment is ETP(s) as well as the name of the issuer and a link 12 designed to encourage additional to the ETP prospectus. A qualified LMM must As noted below, the Exchange proposes that the complete the application for a specific ETP or group initial administration fee be 5%. Market Makers to pursue LMM of ETPs. 13 See supra note 8. assignments and thereby support the

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provision of consistent liquidity in ETPs 8.800 may range from $10,000 to fee to recover the costs of administering listed on the Exchange. The Exchange $40,000 and to amend its Trading Fee the pilot program. would administer all aspects of the Schedule to provide that at the end of The Exchange further believes that the LMM Payments and believes that each quarter, the Exchange would credit proposed rule change is consistent with providing a quarterly LMM Payment the LMM assigned to an ETP the Section 6(b)(5) of the Act in that it is would create a more equitable system of Optional Incentive Fee, less a 5% designed to prevent fraudulent and incentives for LMMs. The Exchange Exchange administration fee, and that manipulative acts and practices, to notes that the proposal would not alter an LMM that receives an LMM Payment promote just and equitable principles of the current requirements and under NYSE Arca Rule 8.800 would be trade, to foster cooperation and obligations of LMMs under Exchange subject to Standard Rates rather than coordination with persons engaged in rules or any policies and procedures LMM Rates. facilitating transactions in securities, related to LMMs.14 and to remove impediments to and 2. Statutory Basis perfect the mechanism of a free and Implementation of Fixed Incentive open market and a national market Program The Exchange believes that the proposed rule change is consistent with system. In particular, the Exchange The pilot program would be offered to the provisions of Section 6 of the Act,15 believes that creating an incentive for an issuers from the date of implementation, in general, and Sections 6(b)(4) and ETP Holder to act as an LMM would which would occur no later than 90 6(b)(5) of the Act,16 in particular. foster cooperation and coordination days after the effective date of this The Exchange believes that the with persons engaged in facilitating filing, until December 31, 2013. As proposed rule change is consistent with securities transactions and enhance the referenced above, each issuer could Section 6(b)(4) of the Act in that it is mechanism of a free and open market. select ETPs to participate in the Fixed designed to provide for the equitable The assignment of an LMM, which is Incentive Program. During the course of allocation of reasonable dues, fees, and held to higher minimum performance the pilot period, the Exchange would other charges among its members and standards as compared to other market assess the Fixed Incentive Program and issuers and other persons using its participants, helps to promote fair and may expand the criteria for ETPs that facilities and that it is not unfairly orderly markets in ETPs on the are eligible to participate for example, to discriminatory. The Exchange believes Exchange. permit issuers to include more than five The Exchange believes that its that the proposed Optional Incentive ETPs that were listed on the Exchange implementation plan and the pilot Fees for ETPs are reasonable, given the before the pilot. At the end of the pilot, period are reasonable in that they would additional costs to the Exchange of the Exchange would determine whether permit the Commission, the Exchange, providing the LMM Payment. The to continue or discontinue the pilot or LMMs, and issuers to assess the impact Exchange also believes that the make it permanent and submit a rule of the Fixed Incentive Program before proposed fees are reasonable because filing as necessary. If the Exchange making it available to all ETPs. In they would be used by the Exchange to determines to change the terms of the particular, the Exchange believes that it offset, in part, the cost that the Exchange pilot while it is ongoing, it would is beneficial and not unfairly incurs to provide listing services for submit a rule filing to the Commission. discriminatory to limit the ETPs During the pilot program, the ETPs. These costs include, but are not participating so that the Exchange and Exchange would provide the limited to, ETP rulemaking initiatives, issuers could measure the experience Commission with certain market quality listing administration processes, issuer against non-participating ETPs and data on a confidential basis each month. services, consultative legal services thereby conserve the commitment of Such data would include, for all ETPs provided to ETP issuers in support of resources to the pilot program. listed as of the date of implementation new product development, and The Exchange intends to utilize its of the pilot program and listed during administration of the proposed quarterly existing surveillance procedures the pilot (for comparative purposes), LMM Payment. applicable to derivative products to volume (CADV and NYSE Arca ADV), The Exchange believes that the monitor trading in the ETPs NBBO bid/ask spread differentials, Optional Incentive Fee is reasonable, participating in the pilot program, LMM participation rates, NYSE Arca equitably allocated, and not which the Exchange believes are market share, LMM time spent at the unreasonably discriminatory. The fee adequate to properly monitor Exchange inside, LMM time spent within $0.03 of would be equitably allocated and not trading of the participating ETPs in all the inside, percent of time NYSE Arca unfairly discriminatory because it is trading sessions and to deter and detect has the best price with the best size, entirely voluntary on the issuer’s part to violations of Exchange rules and LMM quoted spread, LMM quoted join the pilot program. The amount of applicable federal securities laws. depth, and Rule 605 statistics (one- the fee would be determined and paid Finally, the Exchange believes that month delay) as agreed upon by the by the issuer within the $10,000 to the pilot program would not be Exchange and the Commission staff. In $40,000 band per ETP. inconsistent with Financial Industry connection with this proposal, the The Exchange believes that the LMM Regulatory Authority (‘‘FINRA’’) Rule Exchange would provide such data as Payment and standard transaction fees 5250, which prohibits payment for may be periodically requested by the and credits are equitable in that any market making. The Exchange believes Commission. LMM could seek to participate in the that FINRA Rule 5250 is designed to program. The Exchange further believes address issues associated with securities Amendments to Listing Fee Schedule that the range of credits is fair and of operating companies, and such issues and Trading Fee Schedule equitable in light of the LMM’s are not present with ETPs, which have To implement the pilot, the Exchange obligations and minimum performance derivative pricing, creation and/or also proposes to amend its Listing Fee standards and that it is reasonable for redemption features, or upsizing that Schedule to provide that the Optional the Exchange to retain an administration would preclude the type of Incentive Fee under NYSE Arca Rule manipulation that FINRA Rule 5250 is 15 15 U.S.C. 78f(b). designed to prevent. Moreover, the 14 See supra note 5. 16 15 U.S.C. 78f(b)(4) and (5). Exchange believes that the structure of

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its proposal is unique and has there is less value relative to risk of consistent with the Act and investor appropriate safeguards. For example, acting as an LMM for ETPs that exhibit protection? Why or why not? the proposal includes the interposition low CADV. Do commenters agree that 6. Under the proposal, LMMs for ETPs of the Exchange between the issuers and low interest levels by LMMs in ETPs in the Fixed Incentive Program would LMMs, the payment of fees from the that have low CADV is a result of such continue to be subject to the current general revenues of the Exchange, and value/risk discrepancy? Why or why LMM performance standards and would the existing obligations and minimum not? What other factors could contribute not be subject to higher performance performance standards that are to a lack of interest by LMMs in such standards. Do commenters believe this monitored by the Exchange under NYSE ETPs? What other factors could explain is appropriate? Why or why not? Should Arca Equities Rules 7.23 and 7.24, the apparent increasing proportion of LMMs for ETPs in the Fixed Incentive respectively. For these reasons, the new ETPs that are listed on the Program be subject to higher standards Exchange does not believe that its Exchange without a designated LMM? because of the LMM Payments that proposal would be inconsistent with 2. The Exchange asserts that 17 LMMs could be entitled to receive? Why FINRA Rule 5250. providing a quarterly LMM Payment to or why not? LMMs assigned to ETPs in the Fixed B. Self-Regulatory Organization’s Incentive Program will create a more 7. FINRA Rule 5250 prohibits FINRA Statement on Burden on Competition equitable system of incentives for members from directly or indirectly The Exchange does not believe that LMMs. Do commenters believe that the accepting payment from an issuer of a the proposed rule change will impose Fixed Incentive Program will security for acting as a market maker. any burden on competition that is not incentivize more LMMs to take The Exchange asserts that FINRA Rule necessary or appropriate in furtherance assignments in ETPs. If so, how? If not, 5250 is designed to address issues of the purposes of the Act. why not? associated with securities of operating companies, and such issues are not C. Self-Regulatory Organization’s 3. Given the inherent arbitrage link present with ETPs, because they have Statement on Comments on the between trading ETPs and their derivative pricing, creation and/or Proposed Rule Change Received From underlying holdings, would a lack of redemption features, or upsizing that Members, Participants, or Others liquidity in an ETP impact the ability of LMMs to quote relatively narrow bids would preclude the type of No written comments were solicited and offers? What, if anything, does a manipulation that FINRA Rule 5250 is or received with respect to the proposed lack of liquidity in an ETP indicate designed to prevent. Do commenters rule change. about the ability of an LMM or other agree with this assertion? If so, why? If III. Date of Effectiveness of the market maker to make effective use of not, why not? Proposed Rule Change and Timing for arbitrage and the creation/redemption 8. The Exchange notes in its filing that Commission Action mechanisms often associated with it expects FINRA to file a proposed rule ETPs? How, if at all, would a market- Within 45 days of the date of change to amend its Rule 5250 to making incentive program affect any publication of this notice in the Federal indicate that participation by LMMs and intraday premium (discount) of the Register or within such longer period (i) issuers in the Fixed Incentive Program traded price of an ETP above (below) its as the Commission may designate up to would not be prohibited by FINRA Rule intraday indicative value? 90 days of such date if it finds such 5250. FINRA Rule 5250 (previously 4. The Exchange states that the Fixed longer period to be appropriate and NASD Rule 2460) was implemented, in Incentive Program is designed to publishes its reasons for so finding or part, to address concerns about issuers encourage additional Market Makers to (ii) as to which the Exchange consents, paying market makers to improperly pursue LMM assignments and thereby the Commission will: influence the price of an issuer’s support the provision of consistent 18 (A) By order approve or disapprove stock. Do commenters believe the liquidity in ETPs listed on the the proposed rule change; or Fixed Incentive Program would raise the (B) Institute proceedings to determine Exchange. The Commission seeks types of concerns that FINRA Rule 5250 whether the proposed rule change specific commentary on any potential should be disapproved. impact of the proposed rules on the 18 See Securities Exchange Act Release No. 38812 market quality of ETPs. Do commenters (July 3, 1997), 62 FR 37105 (July 10, 1997) (SR– IV. Solicitation of Comments agree with the Exchange that the Fixed NASD–97–29) (‘‘Specifically, the Commission finds Incentive Program would support the that the rule preserves the integrity of the Interested persons are invited to marketplace by ensuring that quotations accurately submit written data, views, and provision of consistent liquidity in ETPs reflect a broker-dealer’s interest in buying or selling arguments concerning the foregoing, listed on the Exchange? If so, please a security. The decision by a firm to make a market explain. If not, why not? in a given security and the question of price including whether the proposed rule generally are dependent on a number of factors, change is consistent with the Act. The 5. If two ETPs share similar market including, among others, supply and demand, the Commission requests comment, in quality characteristics (quoted spread, firm’s expectations toward the market, its current particular, on the following aspects of size, volume, etc.) but one is supported inventory position, and exposure to risk and by the Fixed Incentive Program and the competition. This decision should not be the proposed rule change: influenced by payments to the member from issuers 1. The Exchange asserts that LMMs in other is not, what, if anything, does that or promoters. Public investors expect broker- ETPs incur higher inventory, quoting, suggest about the fundamental market dealers’ quotations to be based on the factors and other risks than other market qualities of the two ETPs? Would described above. If payments to broker-dealers by investors understand, and should they promoters and issuers were permitted, investors participants on the Exchange and that would not be able to ascertain which quotations in be concerned about, the differences the marketplace are based on actual interest and 17 Notwithstanding the Exchange’s views, and underlying the seemingly similar market which quotations are supported by issuers or based upon discussions with FINRA, subsequent to qualities of the two ETPs? Are there promoters. This structure would harm investor the Exchange’s filing of this proposal FINRA will other aspects of this type of incentivized confidence in the overall integrity of the file an immediately effective rule change indicating market quality that should concern marketplace. The Commission finds that the that participation by LMMs and issuers in the Fixed proposed rule supports a longstanding policy and Incentive Program would not be prohibited by investors? Are such apparent position of the NASD and establishes a clear FINRA Rule 5250. improvements in market quality standard of fair practice for member firms.’’)

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was designed to address? Why or why What are commenters’ views on other economic incentive to promote or not? allowing the issuer that has chosen to sell the shares of the fund to persons 9. The Exchange asserts that the participate in the Fixed Incentive outside the fund complex, other than structure of its proposal is unique and Program to choose the LMM? Should non-cash compensation permitted under has appropriate safeguards to dispel the the Exchange establish objective NASD Rule 2380. Should authorized concerns that FINRA Rule 5250 was standards and be responsible for participants participating in the creation designed to address. For example, the choosing the designated LMM for a and redemption of shares of ETPs that Exchange notes that the proposal particular issuer and ETP in the Fixed are also LMMs in those same ETPs be includes the interposition of the Incentive Program? Would allowing an eligible to receive LMM Payments? Exchange between the issuers and issuer that has chosen to participate in Would the LMM Payments give these LMMs, the payment of fees from the the Fixed Incentive Program to choose authorized participants economic general revenues of the Exchange, and its LMM for the particular ETP be incentives to promote or sell shares of the existing obligations and minimum consistent or inconsistent with the the ETP? Should such payments be performance standards that are policies and concerns behind FINRA viewed by the Commission as coming monitored by the Exchange under NYSE Rule 5250? directly or indirectly from the fund Arca Equities Rules 7.23 and 7.24, 12. Is it appropriate and consistent complex of the ETP? Should LMM respectively. Do commenters agree that with the Act to allow issuers to choose Payments disqualify broker-dealer the Exchange’s proposal adequately to enter into the Fixed Incentive authorized participants from relying on addresses the policies and concerns Program and pay the Optional Incentive the Commission’s exemption from behind FINRA Rule 5250? Why or why Fee? Why or why not? Would it be more Section 11(d)(1) of the Act? not? What are commenters’ views on or less appropriate to require all, or a 16. Could the Fixed Incentive whether, and if so, how, the Fixed fixed subset of, ETP issuers to enter the Program have an impact (either positive Incentive Program would be consistent Fixed Incentive Program and pay the or negative) on incentives for market with the rationale behind FINRA Rule Optional Incentive Fee? What would be making in other ETPs listed and traded 5250? the impact on market maker incentives on the Exchange that are not eligible for 10. Could there be conflicts of interest of allowing issuers to choose to enter and/or do not participate in the Fixed between an issuer of an ETP in the into the Fixed Incentive Program and Incentive Program, either because the Fixed Incentive Program and the LMM pay the Optional Incentive Fee? Exchange has limited the number of assigned to such ETP? If so, what are 13. Is it appropriate and consistent ETPs that an issuer may have in the those conflicts of interest? 19 Please with the Act to allow issuers and LMMs program, the issuer does not qualify for explain whether the Exchange’s to negotiate the Optional Incentive Fee? the program, or the issuer’s application proposal adequately addresses such Why or why not? Does allowing issuers for participation is otherwise denied? If potential conflicts, and if so, how, and to negotiate such fees directly with so, what type of impact, and why? If if not, why not. LMMs raise concerns regarding investor not, why not? Please explain. 11. Are the proposed criteria for confidence, market integrity, and participation by potential ETP issuers member standards, similar to those 17. The Exchange’s stated rationale and/or LMMs in the Fixed Incentive discussed in connection with FINRA for the Fixed Incentive Program is that Program sufficiently clear, precise, and Rule 5250? 20 If so, what are those market makers need additional objective to address concerns about concerns? Should the Optional incentives to take on LMM assignments potential conflicts of interest between Incentive Fee agreed upon between the in ETPs with low CADV. However, the issuers and market makers? Why or why issuer and the LMM for a particular ETP Fixed Incentive Program does not limit not? Should such participation be publicly disclosed? Why or why not? which ETPs can be included within the standards be more objective to ensure 14. With respect to an ETP, should the program based on trading volume, and that there is a level playing field in entity paying the Optional Incentive Fee does not provide for the removal or determining who the issuers and market be the sponsor or the fund? What withdrawal of an ETP from the program makers are for a particular ETP in the impact, if any, would it have on fund if such ETP reaches a certain CADV Fixed Incentive Program? Would more investors if the fund pays the Optional level. Would it be more appropriate for clear and objective standards help to Incentive Fee as opposed to the an ETP to be removed from the Program address conflicts of interest that may be sponsor? Are the proposed rules once it reaches a certain liquidity level present between issuers and market sufficiently clear as to which entity will or volume threshold? Why or why not? makers, if any? Under the proposed be paying the Optional Incentive Fee? If so, what would be an appropriate Fixed Incentive Program, if more than 15. Section 11(d)(1) of the Act threshold? Would it be more one qualified LMM proposes to serve as generally prohibits a firm that is both a appropriate to limit inclusion in the such, the issuer would choose the LMM. broker and a dealer in securities from program to newly listed or low volume extending or maintaining any credit on ETPs? Why or why not? 19 The Commission’s order approving NASD Rule any new issue security if the broker- 18. Could the Fixed Incentive 2460 discussed conflicts of interest that may exist dealer participated in the distribution of Program have unintended consequences between issuers and market makers. See id. at the new issue security within the on fair and orderly markets in an ETP 37106 (‘‘It has been a longstanding policy and when such security leaves the program? position of the NASD that a broker-dealer is preceding 30 days. The Commission has prohibited from receiving compensation or other granted relief to authorized participants If so, what could these consequences payments from an issuer for quoting, making a from these restrictions if, among other be? If not, why not? Please explain. market in an issuer’s securities or for covering the things, neither the broker-dealer 19. The Exchange has proposed to member’s out-of-pocket expenses for making a market, or for submitting an application to make a authorized participant, nor any natural implement the Fixed Incentive Program market in an issuer’s securities. As stated in Notice person associated with such broker- on a pilot basis beginning no later than to Members 75–16 (February 20, 1975), such dealer authorized participant, directly 90 days after the effective date of this payments may be viewed as a conflict of interest or indirectly, receives from the fund filing, until December 31, 2013. Is this since they may influence the member’s decision as to whether to quote or make a market in a security complex any payment, compensation, or a reasonable amount of time to assess and, thereafter, the prices that the member would the impact of the proposed rules? If not, quote.’’) 20 See supra note 18. why not? Please explain.

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20. What additional data, if any, (e.g., would such disclosure provide should be submitted on or before June should be provided by the Exchange to investors the opportunity to assess how 7, 2012. help assess during the pilot period much perceived liquidity is being For the Commission, by the Division of whether the Fixed Incentive Program is provided by LMMs in the Fixed Trading and Markets, pursuant to delegated achieving its stated goals? For example, Incentive Program, as opposed to authority.21 if the Exchange required ETPs to be liquidity provided by market makers Kevin M. O’Neill, listed and traded outside the Fixed and other market participants who are Deputy Secretary. Incentive Program for a period of time not paid an LMM Payment)? If so, what [FR Doc. 2012–11914 Filed 5–16–12; 8:45 am] before being eligible for the program, information should be disclosed and could such a requirement provide useful why? If not, why not? What advantages BILLING CODE 8011–01–P ‘‘before and after’’ data for ETPs to or disadvantages would such disclosure permit the Exchange and the provide? Please explain. SECURITIES AND EXCHANGE Commission to more accurately assess Comments may be submitted by any COMMISSION the market quality of the securities of the following methods: before participating in the program and the market quality of the same securities Electronic Comments [Release No. 34–66968; File No. SR–Phlx– 2012–57] while participating in the program? If • Use the Commission’s Internet so, how? If not, please explain. comment form (http://www.sec.gov/ Self-Regulatory Organizations; 21. The Exchange represents that it rules/sro.shtml); or NASDAQ OMX PHLX LLC; Notice of will provide certain public disclosures • Send an email to rule- Filing and Immediate Effectiveness of relating to the Fixed Incentive Program [email protected]. Please include File Proposed Rule Change Relating to (i.e., notification on its Web site Number SR–NYSEArca–2012–37 on the Complex Order Fees for Removing regarding the ETPs participating in the subject line. Liquidity in Select Symbols Fixed Incentive Program and the assigned LMMs). Do commenters Paper Comments May 11, 2012. believe that these disclosures would • Send paper comments in triplicate Pursuant to Section 19(b)(1) of the provide sufficient information to to Elizabeth M. Murphy, Secretary, investors? If not, why not? Do Securities Exchange Act of 1934 Securities and Exchange Commission, 1 2 commenters believe the program is (‘‘Act’’) and Rule 19b–4 thereunder, 100 F Street NE., Washington, DC notice is hereby given that, on April 30, sufficiently transparent? Why or why 20549–1090. not? Is there any other information that 2012, NASDAQ OMX PHLX LLC the Exchange should provide on its Web All submissions should refer to File (‘‘Phlx’’ or ‘‘Exchange’’) filed with the site regarding the Fixed Incentive Number SR–NYSEArca–2012–37. This Securities and Exchange Commission Program and participating ETPs, issuers, file number should be included on the (‘‘Commission’’) the proposed rule and LMMs? For example, should the subject line if email is used. To help the change as described in Items I, II and III Exchange be required to publish on its Commission process and review your below, which Items have been prepared Web site any notices from an issuer or comments more efficiently, please use by the Exchange. The Commission is LMM to withdraw from the program, or only one method. The Commission will publishing this notice to solicit notices that an issuer or LMM has been post all comments on the Commission’s comments on the proposed rule change removed from the program? Should the Internet Web site (http://www.sec.gov/ from interested persons. rules/sro.shtml). Copies of the Exchange be required to publish on its I. Self-Regulatory Organization’s Web site the performance standards to submission, all subsequent amendments, all written statements Statement of the Terms of Substance of which LMMs in the program are the Proposed Rule Change subject? What advantages or with respect to the proposed rule disadvantages would such disclosures change that are filed with the The Exchange proposes to amend provide? Please explain. Commission, and all written Section I of the Exchange’s Pricing 22. Would it be helpful to investors to communications relating to the Schedule entitled ‘‘Rebates and Fees for have public notice of an issuer’s proposed rule change between the Adding and Removing Liquidity in participation in the Fixed Incentive Commission and any person, other than Select Symbols.’’ The Exchange Program through means other than on those that may be withheld from the previously filed an immediately the Exchange’s Web site, such as in the public in accordance with the effective rule change, SR–Phlx–2012– issuer’s periodic reports to the provisions of 5 U.S.C. 552, will be 27,3 to amend certain fees and rebates in Commission, on the issuer’s Web site, or available for Web site viewing and Section I, which filing was temporarily through a ticker symbol identifier on the printing in the Commission’s Public suspended by the Commission as of consolidated tape? Why or why not? Reference Section, 100 F Street NE., April 30, 2012 (‘‘Suspension Order’’).4 23. What are commenters’ views on Washington, DC 20549–1090, on official At this time, to continue the whether the proposed disclosures are business days between 10:00 a.m. and effectiveness of certain fees and rebates sufficient to enable all investors, even 3:00 p.m. Copies of the filing also will that were contained in SR–Phlx–2012– less sophisticated investors, to be available for inspection and copying 27, the Exchange is filing this rule understand the potential impact of the at the NYSE’s principal office and on its proposed Fixed Incentive Program on an Internet Web site at www.nyse.com. All 21 17 CFR 200.30–3(a)(12). ETP, including that an issuer’s comments received will be posted 1 15 U.S.C. 78s(b)(1). participation in the program is without change; the Commission does 2 17 CFR 240.19b–4. voluntary and subject to withdrawal? not edit personal identifying 3 See Securities Exchange Act Release No. 66551 24. Should the Exchange be required information from submissions. You (March 9, 2012), 77 FR 15400 (March 15, 2012) (SR– to publicly (and anonymously) disclose should submit only information that Phlx–2012–27). 4 By order dated April 30, 2012, the Commission statistics on the performance of LMMs? you wish to make available publicly. All suspended SR–Phlx–2012–27 and SR–Phlx–2012– Would such disclosure provide submissions should refer to File 54. See Securities Exchange Release No. 66884 meaningful information to investors Number SR–NYSEArca–2012–37 and (April 30, 2012).

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change. The Exchange is also proposing to amend the Complex Order fees and 2. Statutory Basis additional amendments. rebates in Section I of the Exchange’s The text of the proposed rule change Pricing Schedule, entitled ‘‘Rebates and The Exchange believes that its is available on the Exchange’s Web site Fees for Adding and Removing proposal to amend its Pricing Schedule at http://nasdaqtrader.com/ Liquidity in Select Symbols.’’ 7 The is consistent with Section 6(b) of the 13 micro.aspx?id=PHLXfilings, at the proposed amendments will enable the Act in general, and furthers the 14 principal office of the Exchange, and at Exchange to continue to reward market objectives of Section 6(b)(4) of the Act the Commission’s Public Reference participants that add liquidity to the in particular, in that it is an equitable Room. Exchange and allow the Exchange to allocation of reasonable fees and other compete more effectively respecting charges among Exchange members and II. Self-Regulatory Organization’s other persons using its facilities. The Statement of the Purpose of, and Complex Orders. The increased Complex Order fees will continue to Exchange also believes that it is an Statutory Basis for, the Proposed Rule equitable allocation of reasonable Change offset the costs of offering Complex Order rebates to Customers to bring rebates among Exchange members and In its filing with the Commission, the liquidity to the market. other persons using its facilities. Exchange included statements Specifically, SR–Phlx–2012–27 Complex Order Customer Rebates concerning the purpose of and basis for proposed to: (1) Increase the Customer the proposed rule change and discussed Complex Order Rebate for Adding Customer Complex Orders are any comments it received on the Liquidity from $0.30 to $0.32 per becoming an increasingly important proposed rule change. The text of these contract, (2) create a new Complex segment of options trading. The statements may be examined at the Order Rebate for Removing Liquidity Exchange believes that it is reasonable places specified in Item IV below. The and specifically pay a Customer a $0.06 to increase the current Customer Exchange has prepared summaries, set Complex Order Rebate for Removing Complex Order Rebate for Adding forth in sections A, B, and C below, of Liquidity, and (3) increase the Complex Liquidity to $0.32 per contract and the most significant aspects of such Order Fees for Removing Liquidity for create a new Customer Complex Order statements. Firms, Broker-Dealers and Professionals Rebate for Removing Liquidity of $0.06 A. Self-Regulatory Organization’s from $0.35 per contract to $0.38 per per contract, because the Exchange Statement of the Purpose of, and contract. The Exchange is proposing to seeks to incentivize market participants Statutory Basis for, the Proposed Rule continue to pay the rebates and assess to direct and transact a greater number Change the fees, as noted above, which were of Customer Complex Orders at the initially proposed in SR–Phlx–2012–27. Exchange. Creating these incentives and 1. Purpose The Exchange is also proposing to attracting Customer Complex Orders to The Exchange proposes to continue increase the Complex Order Directed the Exchange, in turn, benefits all the effectiveness of certain rebates and Participant 8 Fee for Removing Liquidity market participants through increased fees originally proposed in SR–Phlx– from $0.30 per contract 9 to $0.34 per liquidity at the Exchange. A higher 2012–27, which fees and rebates were contract and the Complex Order Market percentage of Customer Complex Orders temporarily suspended by the Maker 10 Fee for Removing Liquidity leads to increased Complex Order Commission. Specifically, the Exchange from $0.32 per contract 11 to $0.36 per auctions and better opportunities for is proposing to continue the contract. price improvement. effectiveness of: (i) An increased The Exchange is not proposing any The Exchange also believes it is 5 Customer Complex Order Rebate for amendments to Parts A or C of Section reasonable, equitable and not unfairly 12 Adding Liquidity; (ii) the adoption of a I of the Pricing Schedule. discriminatory to only offer rebates to Rebate for Removing Liquidity category Customers and not other market 7 and Customer Complex Order Rebate for The Select Symbols are listed in Section I of the participants. Customer Complex Order Removing Liquidity; and (iii) increased Pricing Schedule. 8 flow brings unique benefits to the Firm, Broker-Dealer and Professional 6 The term ‘‘Directed Participant’’ applies to transactions for the account of a Specialist, marketplace in terms of liquidity and Complex Order Fees for Removing Streaming Quote Trader (‘‘SQT’’) or Remote order interaction. It is an important Liquidity. Also, the Exchange proposes Streaming Quote Trader (‘‘RSQT’’) resulting from a Exchange function to provide an Customer order that is (1) directed to it by an order to increase the Directed Participant and opportunity to all market participants to Market Maker Complex Order Fees for flow provider, and (2) executed by it electronically on Phlx XL II. trade against Customer Complex Orders. Removing Liquidity in this proposal. 9 The Suspension Order reverted the Complex The Exchange believes that it is Specifically, the Exchange is proposing Order Directed Participant Fee for Removing equitable and not unfairly Liquidity from $0.32 per contract to $0.30 per discriminatory to increase the current 5 A Complex Order is any order involving the contract as of the date of the Suspension Order. simultaneous purchase and/or sale of two or more 10 A ‘‘Market Maker’’ includes Specialists (see Customer Complex Order Rebate for different options series in the same underlying Rule 1020) and Registered Options Traders Adding Liquidity to $0.32 per contract security, priced at a net debit or credit based on the (‘‘ROTs’’) (Rule 1014(b)(i) and (ii), which includes and create a new Customer Complex relative prices of the individual components, for the SQTs (see Rule 1014(b)(ii)(A)) and RSQTs (see Rule Order Rebate for Removing Liquidity of same account, for the purpose of executing a 1014(b)(ii)(B)). particular investment strategy. Furthermore, a 11 The Suspension Order reverted the Complex $0.06 per contract, because the Complex Order can also be a stock-option order, Order Market Maker Fee for Removing Liquidity Exchange will uniformly pay these which is an order to buy or sell a stated number from $0.37 per contract to $0.32 per contract as of rebates to all Customer orders from any of units of an underlying stock or exchange-traded the date of the Suspension Order. member organization. fund (‘‘ETF’’) coupled with the purchase or sale of 12 As part of SR–Phlx–2012–27, the Exchange options contract(s). See Exchange Rule 1080, proposed a volume incentive for Market Makers Commentary .08(a)(i). that executed more than 25,000 contracts per day on all of their transactions for the month. The 6 The term ‘‘professional’’ means any person or in a month of Complex Orders, either adding or Suspension Order would eliminate this incentive. entity that (i) is not a broker or dealer in securities, removing liquidity, in Select Symbols. Market The Exchange is not proposing to reinstate that and (ii) places more than 390 orders in listed Makers that met the aforementioned volume criteria incentive, which will no longer be effective as of options per day on average during a calendar month received a $0.01 per contract reduction of both the the Suspension Order. for its own beneficial account(s). See Rule Directed Participant and Market Maker Complex 13 15 U.S.C. 78f(b). 1000(b)(14). Order Fees for Removing Liquidity, as applicable, 14 15 U.S.C. 78f(b)(4).

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Complex Order Fees for Removing same $0.38 per contract fees. Customers Electronic Comments Liquidity are not assessed a Fee for Removing • Use the Commission’s Internet The Exchange believes that it is Liquidity, as is the case on competing 19 comment form (http://www.sec.gov/ reasonable to increase the Complex exchanges. rules/sro.shtml); or Order Fees for Removing Liquidity for The Exchange operates in a highly Directed Participants, Market Makers, competitive market, comprised of nine • Send an email to rule- Firms, Broker-Dealers and Professionals exchanges, in which market participants [email protected]. Please include File so that the Exchange can offer increased can easily and readily direct order flow Number SR–Phlx–2012–57 on the rebates to Customers. As previously to competing venues if they deem fee subject line. noted, the Exchange is proposing to levels at a particular venue to be increase the Customer Complex Order excessive or rebates offered to be Paper Comments insufficient. Accordingly, the fees that Rebate for Adding Liquidity and offer a • Send paper comments in triplicate new Customer Complex Order Rebate are assessed by the Exchange and the rebates it pays for options overlying the to Elizabeth M. Murphy, Secretary, for Removing Liquidity. Securities and Exchange Commission, The Exchange believes that it is various Select Symbols in Complex 100 F Street NE., Washington, DC equitable and not unfairly Orders must remain competitive with discriminatory to increase the Complex fees and rebates charged/paid by other 20549–1090. venues and therefore must continue to Order Fees for Removing Liquidity for All submissions should refer to File be reasonable and equitably allocated to Directed Participants, Market Makers, Number SR–Phlx–2012–57. This file those members that opt to direct orders Firms, Broker-Dealers and Professionals number should be included on the because, the Exchange is increasing to the Exchange rather than competing venues. subject line if email is used. To help the these fees for all market participants, Commission process and review your except Customers who are not assessed B. Self-Regulatory Organization’s comments more efficiently, please use a fee, to position itself to offer greater Statement on Burden on Competition only one method. The Commission will Customer Complex Order rebates. The The Exchange does not believe that post all comments on the Commission’s Exchange is consistently assessing lower the proposed rule change will impose Internet Web site (http://www.sec.gov/ Complex Order Fees for Removing any burden on competition not Liquidity to Directed Participants and rules/sro.shtml). Copies of the necessary or appropriate in furtherance Market Makers as compared to Firms, submission, all subsequent of the purposes of the Act. Broker-Dealers and Professionals, amendments, all written statements because, as has been described in C. Self-Regulatory Organization’s with respect to the proposed rule previous filings, these participants have Statement on Comments on the change that are filed with the requisite quoting obligations in the Proposed Rule Change Received From Commission, and all written series in which they are assigned. Members, Participants, or Others communications relating to the 15 Market Makers have burdensome No written comments were either proposed rule change between the quoting obligations to the market which solicited or received. Commission and any person, other than do not apply to Firms, Professionals and those that may be withheld from the Broker-Dealers. Also, Market Makers III. Date of Effectiveness of the public in accordance with the that receive Directed Orders 16 have Proposed Rule Change and Timing for provisions of 5 U.S.C. 552, will be higher quoting obligations compared to Commission Action available for Web site viewing and other Market Makers and therefore are The foregoing rule change has become printing in the Commission’s Public assessed a lower fee when they transact effective pursuant to Section Reference Room, 100 F Street NE., with a Customer order that was directed 19(b)(3)(A)(ii) of the Act.20 At any time Washington, DC 20549, on official to them for execution as compared to within 60 days of the filing of the business days between the hours of Market Makers. In addition, the fee proposed rule change, the Commission 10:00 a.m. and 3:00 p.m. Copies of the differential of $0.02 per contract as summarily may temporarily suspend filing also will be available for between a Market Maker and Directed such rule change if it appears to the inspection and copying at the principal Participant is comparable to the fee Commission that such action is office of the Exchange. All comments differential at the International Stock necessary or appropriate in the public received will be posted without change; Exchange, Inc. (‘‘ISE’’) 17 and is lower interest, for the protection of investors, than the fee differential at NYSE Amex, or otherwise in furtherance of the the Commission does not edit personal LLC (‘‘Amex’’).18 Firms, Broker-Dealers purposes of the Act. If the Commission identifying information from and Professionals are being assessed the takes such action, the Commission shall submissions. You should submit only institute proceedings to determine information that you wish to make 15 See Rule 1014 titled ‘‘Obligations and whether the proposed rule should be available publicly. All submissions Restrictions Applicable to Specialists and should refer to File Number SR–Phlx– Registered Options Traders.’’ approved or disapproved. 2012–57 and should be submitted on or 16 Id. IV. Solicitation of Comments 17 ISE has a $.02 fee differential as between ISE before June 7, 2012. Interested persons are invited to Market Makers who remove liquidity from the For the Commission, by the Division of Complex Order Book by trading with orders that are submit written data, views, and Trading and Markets, pursuant to delegated preferenced to them ($0.32 per contract) and non- arguments concerning the foregoing, preferenced ISE Market Makers ($0.34 per contract). authority.21 including whether the proposed rule See ISE’s Fee Schedule. Kevin M. O’Neill, 18 Amex assesses directed and non-directed change is consistent with the Act. Specialists and eSpecialists (termed Market Makers Comments may be submitted by any of Deputy Secretary. at Phlx) a fee of $.13 per contract for removing the following methods: [FR Doc. 2012–11916 Filed 5–16–12; 8:45 am] liquidity in complex orders and a non-directed Market Maker a fee of $0.20 per contract for BILLING CODE 8011–01–P removing liquidity in complex orders. This $.07 fee 19 See the Chicago Board Options Exchange differential is greater than Phlx’s proposed $.02 fee Incorporated’s (‘‘CBOE’’) Fees Schedule. differential. 20 15 U.S.C. 78s(b)(3)(A)(ii). 21 17 CFR 200.30–3(a)(12).

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SECURITIES AND EXCHANGE A. Self-Regulatory Organization’s conforming changes in the description COMMISSION Statement of the Purpose of, and the on the fee schedule. Statutory Basis for, the Proposed Rule The Exchange proposes to implement [Release No. 34–66971; File No. SR–EDGA– Change these amendments to its fee schedule on May 1, 2012. 2012–18] 1. Purpose 2. Basis Self-Regulatory Organizations; EDGA Currently, Flag N is yielded when an The Exchange believes that the Exchange, Inc.; Notice of Filing and order removes liquidity from the EDGA proposed rule changes are consistent Immediate Effectiveness of Proposed book in Tapes B or C securities. In this with the objectives of Section 6 of the Rule Change Relating to Amendments case, a charge of $0.0007 per share is Act,5 in general, and furthers the to the EDGA Exchange, Inc. Fee assessed. In order to provide additional objectives of Section 6(b)(4),6 in Schedule transparency to Members, the Exchange proposes to amend Flag N so that it only particular, as it is designed to provide May 11, 2012. applies to orders that remove liquidity for the equitable allocation of reasonable from the EDGA book in Tape C dues, fees and other charges among its Pursuant to Section 19(b)(1) of the securities. The Exchange will continue Members and other persons using its Securities Exchange Act of 1934 (the to assess a charge of $0.0007 per share facilities. 1 2 ‘‘Act’’), and Rule 19b–4 thereunder, for Members that utilize Flag N. The In order to provide additional notice is hereby given that on May 1, Exchange then proposes to add Flag BB transparency to Members, the Exchange 2012 the EDGA Exchange, Inc. (the for orders that remove liquidity from the proposes to amend Flag N to apply to ‘‘Exchange’’ or the ‘‘EDGA’’) filed with EDGA book in Tape B securities. The orders that remove liquidity from EDGA the Securities and Exchange Exchange proposes to assess a charge of book in Tape C securities and to add Commission (‘‘Commission’’) the $0.0007 per share for Members that Flag BB for orders that remove liquidity proposed rule change as described in utilize Flag BB. In addition, similar to from the EDGA book in Tape B Items I, II, and III below, which items the footnotes appended to Flag N, the securities. The Exchange proposes to have been prepared by the self- Exchange proposes to append Footnotes continue to assess a charge of $0.0007 regulatory organization. The 1 and a to Flag BB. Therefore, Members per share for Members that utilize Flag Commission is publishing this notice to using Flag BB will be subject to the N and the Exchange proposes to assess solicit comments on the proposed rule conditions of Footnote 1, which states a charge of $0.0007 per share for change from interested persons. that all removal rates on EDGA are Members that utilize Flag BB. The I. Self-Regulatory Organization’s contingent on the attributed MPID Exchange believes that utilizing Flag BB Statement of the Terms of Substance of adding (including hidden) and/or to identify Members that remove the Proposed Rule Change routing a minimum average daily share liquidity from EDGA book in Tape B volume, measured monthly, of 50,000 securities and utilizing Flag N to The Exchange proposes to amend its shares on EDGA; and any attributed identify Members that remove liquidity fees and rebates applicable to Members 3 MPID not meeting the aforementioned from EDGA book in Tape C securities of the Exchange pursuant to EDGA Rule minimum will be charged $0.0030 per promotes market transparency and 15.1(a) and (c). All of the changes share for removing liquidity from EDGA improves investor protection by adding described herein are applicable to EDGA for securities priced $1.00 and over and additional transparency to the EDGA fee Members. The text of the proposed rule 0.20% of dollar value for securities schedule. This proposed change more change is available on the Exchange’s priced less than $1.00. In addition, precisely delineates for Members Internet Web site at http:// Members using Flag BB will be subject whether they are removing liquidity in www.directedge.com, at the Exchange’s to the conditions of Footnote a, under Tape B or Tape C securities. The principal office, and at the Public which EDGA will aggregate share Exchange also believes that the proposal Reference Room of the Commission. volume calculations for wholly owned is non-discriminatory because it applies affiliates on a prospective basis upon uniformly to all Members. II. Self-Regulatory Organization’s the Member’s request. The Exchange proposes to decrease Statement of the Purpose of, and The Exchange proposes to decrease the charge for Flag PX from $0.0020 per Statutory Basis for, the Proposed Rule the charge for Flag PX from $0.0020 per share to $0.0012 per share for orders Change share to $0.0012 per share for orders that use the RMPT routing strategy and that use the midpoint routing strategy are routed out. The decreased charge is In its filing with the Commission, the RMPT 4 and are routed out. designed to incentivize Members to self-regulatory organization included The Exchange proposes to append utilize the RMPT routing strategy to statements concerning the purpose of, Footnote 17 to Flags PA, PT, and PX to route through EDGA, thereby increasing and basis for, the proposed rule change provide that if a Member executes the amount of liquidity on EDGA, before and discussed any comments it received greater than 2 million shares per day, routing to other low cost destinations on the proposed rule change. The text measured monthly, using routing and other venues. The Exchange of these statements may be examined at strategy RMPT, then the Member’s rate believes that increased liquidity may the places specified in Item IV below. for Flag PA is reduced to $0.0000 per increase potential revenue to the The self-regulatory organization has share and the Member’s rate for Flags Exchange, and would allow the prepared summaries, set forth in PT and PX is reduced to $0.0008 per Exchange to spread its administrative sections A, B and C below, of the most share. and infrastructure costs over a greater significant aspects of such statements. The Exchange also proposes to make number of shares, leading to lower per a technical amendment to the title of the share costs. These lower per share costs 1 15 U.S.C. 78s(b)(1). EDGA Book Feed. The Exchange would allow the Exchange to pass on 2 17 CFR 240.19b–4. proposes to rename ‘‘EDGA Book Feed’’ the savings to Members in the form of 3 A Member is any registered broker or dealer, or any person associated with a registered broker or to ‘‘EdgeBook Depth A’’ and to make dealer, that has been admitted to membership in the 5 15 U.S.C. 78f. Exchange. 4 See Exchange Rule 11.9(b)(3)(t). 6 15 U.S.C. 78f(b)(4).

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lower rates. The increased liquidity also rates are equitable and non- All submissions should refer to File benefits all investors by deepening discriminatory in that they apply Number SR–EDGA–2012–18. This file EDGA’s liquidity pool, offering uniformly to all Members. The number should be included on the additional flexibility for all investors to Exchange believes the fees and credits subject line if email is used. To help the enjoy cost savings, supporting the remain competitive with those charged Commission process and review your quality of price discovery, promoting by other venues and therefore continue comments more efficiently, please use market transparency and improving to be reasonable and equitably allocated only one method. The Commission will investor protection. In addition, the to Members. post all comments on the Commission’s Exchange believes that the proposed B. Self-Regulatory Organization’s Internet Web site (http://www.sec.gov/ rate is non-discriminatory in that it Statement on Burden on Competition rules/sro.shtml). Copies of the applies uniformly to all Members. submission, all subsequent Footnote 17 (appended to Flags PT, The proposed rule change does not amendments, all written statements PX, and PT) provides that if a Member impose any burden on competition that with respect to the proposed rule executes greater than 2 million shares is not necessary or appropriate in change that are filed with the per day, measured monthly, using furtherance of the purposes of the Act. Commission, and all written routing strategy RMPT, then the C. Self-Regulatory Organization’s communications relating to the Member’s rate for Flag PA is reduced to Statement on Comments on the proposed rule change between the $0.0000 per share and the Member’s rate Proposed Rule Change Received From Commission and any person, other than for Flags PT and PX is reduced to Members, Participants, or Others those that may be withheld from the $0.0008 per share. The decreased charge public in accordance with the The Exchange has not solicited, and is designed to incentivize Members to provisions of 5 U.S.C. 552, will be does not intend to solicit, comments on utilize the RMPT routing strategy to available for Web site viewing and route through EDGA, thereby increasing this proposed rule change. The Exchange has not received any printing in the Commission’s Public the amount of liquidity on EDGA, before Reference Room, 100 F Street NE., routing to other low cost destinations unsolicited written comments from members or other interested parties. Washington, DC 20549, on official and other venues. The Exchange business days between the hours of believes that increased liquidity may III. Date of Effectiveness of the 10:00 a.m. and 3:00 p.m. Copies of the increase potential revenue to the Proposed Rule Change and Timing for filing also will be available for Exchange, and would allow the Commission Action inspection and copying at the principal Exchange to spread its administrative The foregoing rule change has become office of the Exchange. All comments and infrastructure costs over a greater received will be posted without change; number of shares, leading to lower per effective pursuant to Section 19(b)(3) of the Act 7 and Rule 19b–4(f)(2) 8 the Commission does not edit personal share costs. These lower per share costs identifying information from would allow the Exchange to pass on thereunder. At any time within 60 days of the filing of such proposed rule submissions. You should submit only the savings to Members in the form of information that you wish to make lower rates. The increased liquidity also change, the Commission summarily may temporarily suspend such rule change if available publicly. All submissions benefits all investors by deepening should refer to File Number SR–EDGA– EDGA’s liquidity pool, offering it appears to the Commission that such action is necessary or appropriate in the 2012–18 and should be submitted on or additional flexibility for all investors to before June 7, 2012. enjoy cost savings, supporting the public interest, for the protection of quality of price discovery, promoting investors, or otherwise in furtherance of For the Commission, by the Division of market transparency and improving the purposes of the Act. Trading and Markets, pursuant to delegated 9 investor protection. Volume-based IV. Solicitation of Comments authority. discounts such as the ones proposed Kevin M. O’Neill, Interested persons are invited to Deputy Secretary. herein have been widely adopted in the submit written data, views, and cash equities markets, and are equitable arguments concerning the foregoing, [FR Doc. 2012–11926 Filed 5–16–12; 8:45 am] because they are open to all Members on including whether the proposed rule BILLING CODE 8011–01–P an equal basis and provide discounts change is consistent with the Act. that are reasonably related to the value Comments may be submitted by any of SECURITIES AND EXCHANGE to an exchange’s market quality the following methods: associated with higher levels of market COMMISSION activity, such as higher levels of Electronic Comments liquidity provision and introduction of • Use the Commission’s Internet [Release No. 34–66973; File No. SR– higher volumes of orders into the price comment form (http://www.sec.gov/ NYSEArca–2012–39] and volume discovery processes. In rules/sro.shtml); or addition, the Exchange believes that the • Send an email to rule- Self-Regulatory Organizations; NYSE proposed rate is non-discriminatory in [email protected]. Please include File Arca, Inc.; Notice of Filing of Proposed that it applies uniformly to all Members. Number SR–EDGA–2012–18 on the Rule Change Relating To Listing and The Exchange also notes that it subject line. Trading the Global Alpha & Beta ETF operates in a highly-competitive market Pursuant to NYSE Arca Equities Rule in which market participants can Paper Comments 8.600 readily direct order flow to competing • Send paper comments in triplicate May 11, 2012. venues if they deem fee levels at a to Elizabeth M. Murphy, Secretary, particular venue to be excessive. The Securities and Exchange Commission, Pursuant to Section 19(b)(1) of the proposed rule change reflects a 100 F Street NE., Washington, DC Securities Exchange Act of 1934 (‘‘Act’’ competitive pricing structure designed 20549–1090. or ‘‘Exchange Act’’) 1 and Rule 19b–4 to incent market participants to direct their order flow to the Exchange. The 7 15 U.S.C. 78s(b)(3)(A). 9 17 CFR 200.30–3(a)(12). Exchange believes that the proposed 8 17 CFR 19b–4(f)(2). 1 15 U.S.C. 78s(b)(1).

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thereunder,2 notice is hereby given that, offered by AdvisorShares Trust 8.600 is similar to Commentary .03(a)(i) on April 30, 2012, NYSE Arca, Inc. (‘‘Trust’’), a statutory trust organized and (iii) to NYSE Arca Equities Rule (‘‘Exchange’’ or ‘‘NYSE Arca’’) filed under the laws of the State of Delaware 5.2(j)(3); however, Commentary .06 in with the Securities and Exchange and registered with the Commission as connection with the establishment of a Commission (‘‘Commission’’) the an open-end management investment ‘‘fire wall’’ between the investment proposed rule change as described in company.5 The investment adviser to adviser and the broker-dealer reflects Items I, II, and III below, which Items the Fund is AdvisorShares Investments, the applicable open-end fund’s have been prepared by the Exchange. LLC (‘‘Adviser’’). Your Source portfolio, not an underlying benchmark The Commission is publishing this Financial, PLC (‘‘Sub-Adviser’’) is the index, as is the case with index-based notice to solicit comments on the Fund’s sub-adviser and provides day-to- funds. Neither the Adviser nor the Sub- proposed rule change from interested day portfolio management of the Fund. Adviser is affiliated with a broker- persons. Foreside Fund Services, LLC dealer. In the event (a) the Adviser or (‘‘Distributor’’) is the principal the Sub-Adviser becomes newly I. Self-Regulatory Organization’s underwriter and distributor of the affiliated with a broker-dealer, or (b) any Statement of the Terms of Substance of Fund’s Shares. The Bank of New York new adviser or sub-adviser becomes the Proposed Rule Change Mellon (‘‘Administrator’’) serves as the affiliated with a broker-dealer, it will The Exchange proposes to list and administrator, custodian, transfer agent, implement a fire wall with respect to trade the following under NYSE Arca and fund accounting agent for the Fund. such broker-dealer regarding access to Equities Rule 8.600 (‘‘Managed Fund Commentary .06 to Rule 8.600 information concerning the composition Shares’’): Global Alpha & Beta ETF. The provides that, if the investment adviser and/or changes to the portfolio, and will text of the proposed rule change is to the investment company issuing be subject to procedures designed to available at the Exchange, the Managed Fund Shares is affiliated with prevent the use and dissemination of Commission’s Public Reference Room, a broker-dealer, such investment adviser material non-public information and www.nyse.com. shall erect a ‘‘fire wall’’ between the regarding such portfolio. investment adviser and the broker- II. Self-Regulatory Organization’s Description of the Fund Statement of the Purpose of, and dealer with respect to access to According to the Registration Statutory Basis for, the Proposed Rule information concerning the composition Statement, the Fund’s investment Change and/or changes to such investment company portfolio. In addition, objective is long-term capital growth. In its filing with the Commission, the Commentary .06 further requires that The Fund is an exchange-traded fund self-regulatory organization included personnel who make decisions on the (‘‘ETF’’) that is actively managed and statements concerning the purpose of, open-end fund’s portfolio composition thus does not seek to replicate the and basis for, the proposed rule change must be subject to procedures designed performance of a specific index. and discussed any comments it received to prevent the use and dissemination of The Fund is a ‘‘fund of funds’’ that on the proposed rule change. The text material nonpublic information seeks to achieve its investment objective of those statements may be examined at regarding the open-end fund’s by investing, under normal conditions,7 the places specified in Item IV below. portfolio.6 Commentary .06 to Rule 80% or more in other U.S.-listed The Exchange has prepared summaries, exchange-traded products (‘‘Underlying set forth in sections A, B, and C below, funds of the PowerShares Actively Managed of the most significant parts of such Exchange-Traded Fund Trust on the Exchange personnel are subject to the provisions of Rule statements. pursuant to Rule 8.600 in Securities Exchange Act 204A–1 under the Advisers Act relating to codes of Release No. 57619 (April 4, 2008), 73 FR 19544 ethics. This Rule requires investment advisers to A. Self-Regulatory Organization’s (April 10, 2008) (SR–NYSEArca–2008–25). The adopt a code of ethics that reflects the fiduciary Commission also has approved listing and trading nature of the relationship to clients as well as Statement of the Purpose of, and on the Exchange of a number of actively managed compliance with other applicable securities laws. Statutory Basis for, the Proposed Rule funds under Rule 8.600. See, e.g., Securities Accordingly, procedures designed to prevent the Change Exchange Act Release Nos. 63076 (October 12, communication and misuse of non-public 2010), 75 FR 63874 (October 18, 2010) (SR– information by an investment adviser must be 1. Purpose NYSEArca–2010–79) (order approving Exchange consistent with Rule 204A–1 under the Advisers listing and trading of Cambria Global Tactical ETF); Act. In addition, Rule 206(4)–7 under the Advisers The Exchange proposes to list and 63802 (January 31, 2011), 76 FR 6503 (February 4, Act makes it unlawful for an investment adviser to trade the following Managed Fund 2011) (SR–NYSEArca–2010–118) (order approving provide investment advice to clients unless such Shares 3 (‘‘Shares’’) under NYSE Arca Exchange listing and trading of the SiM Dynamic investment adviser has (i) adopted and Equities Rule 8.600: Global Alpha & Allocation Diversified Income ETF and SiM implemented written policies and procedures 4 Dynamic Allocation Growth Income ETF); and reasonably designed to prevent violation, by the Beta ETF (‘‘Fund’’). The Shares will be 65468 (October 3, 2011), 76 FR 62873 (October 11, investment adviser and its supervised persons, of 2001) (SR–NYSEArca–2011–51) (order approving the Advisers Act and the Commission rules adopted 2 17 CFR 240.19b–4. Exchange listing and trading of TrimTabs Float thereunder; (ii) implemented, at a minimum, an 3 A Managed Fund Share is a security that Shrink ETF). annual review regarding the adequacy of the represents an interest in an investment company 5 The Trust is registered under the 1940 Act. On policies and procedures established pursuant to registered under the Investment Company Act of January 30, 2012, the Trust filed with the subparagraph (i) above and the effectiveness of their 1940 (15 U.S.C. 80a–1) (‘‘1940 Act’’) organized as Commission Form N–1A under the Securities Act implementation; and (iii) designated an individual an open-end investment company or similar entity of 1933 (15 U.S.C. 77a) and under the 1940 Act (who is a supervised person) responsible for that invests in a portfolio of securities selected by relating to the Fund (File Nos. 333–157876 and administering the policies and procedures adopted its investment adviser consistent with its 811–22110) (‘‘Registration Statement’’). The under subparagraph (i) above. investment objectives and policies. In contrast, an description of the operation of the Trust and the 7 ‘‘Normal conditions’’ as used herein includes, open-end investment company that issues Fund herein is based, in part, on the Registration but is not limited to, the absence of adverse market, Investment Company Units, listed and traded on Statement. In addition, the Commission has issued economic, political or other conditions, including the Exchange under NYSE Arca Equities Rule an order granting certain exemptive relief to the extreme volatility or trading halts in the fixed 5.2(j)(3), seeks to provide investment results that Trust under the 1940 Act. See Investment Company income markets or the financial markets generally; correspond generally to the price and yield Act Release No. 29291 (May 28, 2010) (File No. operational issues causing dissemination of performance of a specific foreign or domestic stock 812–13677) (‘‘Exemptive Order’’). inaccurate market information; or force majeure index, fixed income securities index, or 6 An investment adviser to an open-end fund is type events such as systems failure, natural or man- combination thereof. required to be registered under the Investment made disaster, act of God, armed conflict, act of 4 The Commission approved NYSE Arca Equities Advisers Act of 1940 (‘‘Advisers Act’’). As a result, terrorism, riot or labor disruption or any similar Rule 8.600 and the listing and trading of certain the Adviser and Sub-Adviser and their related intervening circumstance.

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ETPs’’),8 U.S. exchange-listed common defensive position in the Fund’s invest in U.S. government securities and stock of issuers of any capitalization portfolio.11 U.S. Treasury zero-coupon bonds. range, and U.S. exchange-listed The Fund’s asset allocation and In the absence of normal conditions,14 sponsored American Depositary performance baseline benchmark is the the Fund may invest 100% of its total Receipts (‘‘ADRs’’) 9 that provide Index. The Index consists of ten assets, without limitation, in high- investment exposure to global equity separate industry sectors—each of quality debt securities and money markets and that meet certain selection which has a weighting in the Index as market instruments either directly or criteria established by the Sub-Adviser. a whole. In selecting investments for the through its investments in ETFs. The The Sub-Adviser will seek to achieve Fund’s portfolio, the Sub-Adviser will Fund may be invested in these the Fund’s investment objective by seek to add value by overweighting instruments for extended periods, implementing a ‘‘top-down’’ portfolio sectors that the Sub-Adviser expects to depending on the Sub-Adviser’s management style. This management perform well and underweighting assessment of market conditions. These style begins with a look at the overall sectors that it expects to perform poorly. debt securities and money market economic picture and current market The Sub-Adviser seeks to maintain instruments include shares of other conditions and then narrows its focus diversification among and across mutual funds, commercial paper, down to sectors, industries, or countries economic sectors, industries, and certificates of deposit, bankers’ and ultimately to individual companies. countries. The Sub-Adviser will acceptances, U.S. Government The final step is a fundamental analysis consider the following factors when securities, repurchase agreements,15 and of each individual security and to a selling investments in the Fund’s bonds that are rated BBB or higher. lesser extent technical analysis. A ‘‘top- portfolio: (i) Whether an equity security The Fund may not (i) with respect to down’’ portfolio management style has reached a price considered to be 75% of its total assets, purchase utilizes a tactical and globally fully valued; (ii) business or sector risk securities of any issuer (except diversified allocation strategy in an exposure to a specific security or class securities issued or guaranteed by the attempt to reduce risk and increase of securities; (iii) overvaluation or U.S. Government, its agencies or overall performance. overweighting of the position in the instrumentalities, or shares of Prior to making an investment for the Fund’s portfolio; (iv) change in risk investment companies) if, as a result, Fund, the Sub-Adviser will consider tolerance; and (v) identification of a more than 5% of its total assets would two indicators: (i) the 200-day moving better opportunity. be invested in the securities of such average of the S&P 500 Index (‘‘Index’’); issuer; or (ii) acquire more than 10% of Other Investments and (ii) an inverted yield curve.10 If the the outstanding voting securities of any Index is below its 200-day moving While the Fund will invest at least one issuer. For purposes of this policy, average or if the yield curve is inverted, 80% in the Underlying ETPs, U.S. the issuer of an ADR will be deemed to the Sub-Adviser will maintain a exchange-listed common stock of be the issuer of the respective issuers of any capitalization range, and underlying security.16 8 Underlying ETPs include Investment Company U.S. exchange-listed sponsored ADRs, The Fund may not invest 25% or Units (as described in NYSE Arca Equities Rule on a day-to-day basis, the Fund may more of its total assets in the securities 5.2(j)(3)); Portfolio Depositary Receipts (as described in NYSE Arca Equities Rule 8.100); Trust hold the remainder of its assets in, of one or more issuers conducting their 12 Issued Receipts (as described in NYSE Arca under normal conditions, money principal business activities in the same Equities Rule 8.200); Commodity-Based Trust market instruments, cash, other cash industry or group of industries. The Shares (as described in NYSE Arca Equities Rule equivalents, and other highly liquid Fund will not invest 25% or more of its 8.201); Currency Trust Shares (as described in NYSE Arca Equities Rule 8.202); Commodity Index instruments. total assets in any investment company Trust Shares (as described in NYSE Arca Equities The Fund may invest in other types that so concentrates. This limitation Rule 8.203); Trust Units (as described in NYSE Arca of equity securities. Equity securities does not apply to investments in Equities Rule 8.500); Managed Fund Shares (as represent ownership interests in a securities issued or guaranteed by the described in NYSE Arca Equities Rule 8.600); and company or partnership and consist not closed-end funds. The Underlying ETPs all will be listed and traded in the U.S. on registered only of common stocks, which are one unsubordinated debt securities issued by an exchanges. The Underlying ETPs in which the Fund of the Fund’s primary types of underwriting bank that are designed to provide may invest will primarily be index-based ETFs that investments, but also preferred stocks, returns that are linked to a particular benchmark hold substantially all of their assets in securities warrants to acquire common stock, less investor fees. representing a specific index. The Fund intends to 14 See note 8, supra. invest in ETFs consistent with the requirements of securities convertible into common 15 The Fund may enter into repurchase Section 12(d)(1) of the 1940 Act, or any rule, stock, and investments in master limited agreements with financial institutions, which may regulation, or order of the Commission or partnerships. be deemed to be loans. The Fund follows certain interpretation thereof. The Fund will only make The Fund may invest in exchange- procedures designed to minimize the risks inherent such investments in conformity with the 13 in such agreements. These procedures include requirements of Subchapter M of the Internal traded notes (‘‘ETNs’’). The Fund may effecting repurchase transactions only with large, Revenue Code of 1986, as amended (‘‘Code’’). well-capitalized, and well-established financial 9 ADRs are U.S. dollar denominated receipts 11 Such a defensive position would be a more institutions whose condition will be continually representing interests in the securities of a foreign conservative allocation involving any combination monitored by the Sub-Adviser. In addition, the issuer, which securities may not necessarily be of (a) reducing equity exposures (i.e., U.S. value of the collateral underlying the repurchase denominated in the same currency as the securities exchange-listed common stock and U.S. exchange- agreement will always be at least equal to the into which they may be converted. ADRs are listed ADRs), (b) investing in inverse ETFs (the repurchase price, including any accrued interest receipts typically issued by United States banks and Fund may invest up to 10% of its total assets in earned on the repurchase agreement. In the event trust companies which evidence ownership of leveraged, inverse, or inverse leveraged Underlying of a default or bankruptcy by a selling financial underlying securities issued by a foreign ETPs), and (c) increasing investments in short-term, institution, the Fund will seek to liquidate such corporation. Generally, ADRs in registered form are high-quality debt securities and money market collateral. In addition, the Fund may enter into designed for use in domestic securities markets and instruments, cash, and cash equivalents, including reverse repurchase agreements as part of the Fund’s are traded on exchanges or over-the-counter in the through increasing investments in U.S. exchange- investment strategy. Reverse repurchase agreements United States. The Fund may invest up to 10% of listed Underlying ETPs holding short-term debt or involve sales by the Fund of portfolio assets total assets in ADRs traded over-the-counter. cash and cash equivalents. concurrently with an agreement by the Fund to 10 An inverted yield curve occurs when short- 12 See note 8, supra. repurchase the same assets at a later date at a fixed term interest rates exceed long term rates and 13 ETNs, also called index-linked securities as price. historically has been viewed as an indicator of a would be listed, for example, under NYSE Arca 16 The diversification standard is set forth in pending economic recession. Equities Rule 5.2(j)(6), are senior, unsecured Section 5(b)(1) of the 1940 Act.

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U.S. Government, its agencies or Net Asset Value totaling the NAV of the Creation Unit(s), instrumentalities, or shares of The Fund will calculate its Net Asset in exchange for 25,000 Shares of the investment companies. For purposes of Value (‘‘NAV’’) by: (i) Taking the Fund (or multiples thereof). this policy, the issuer of ADRs will be current market value of its total assets; Shares may be redeemed only in deemed to be the issuer of the respective (ii) subtracting any liabilities; and (iii) Creation Units at their NAV next 17 underlying security. dividing that amount by the total determined after receipt of a redemption The Fund will not purchase illiquid number of Shares owned by request in proper form by the Fund securities, including Rule 144A through the Administrator and only on 18 shareholders. The Fund will calculate securities and loan participations. NAV once each business day as of the a business day. The Trust will not While the Fund does not anticipate regularly scheduled close of trading on redeem Shares in amounts less than doing so, the Fund may hold securities the New York Stock Exchange, LLC Creation Units. Beneficial owners must that become illiquid, including (‘‘NYSE’’) (normally, 4:00 p.m., Eastern accumulate enough Shares in the securities that are not readily Time (‘‘E.T.’’)). In calculating NAV, the secondary market to constitute a marketable and Rule 144A securities. Fund will generally value its investment Creation Unit in order to have such The Fund will not hold more than 15% portfolio at market price. If market Shares redeemed by the Trust. Unless of the Fund’s net assets in illiquid prices are unavailable or the Fund cash redemptions are available or securities including Rule 144A thinks that they are unreliable or when specified for the Fund, the redemption securities and loan participations. If the the value of a security has been proceeds for a Creation Unit generally percentage of the Fund’s net assets materially affected by events occurring consist of Fund securities—as invested in illiquid securities exceeds after the relevant market closes, the announced by the Administrator on the 15% due to market activity, the Fund Fund will price those securities at fair business day of the request for will take appropriate measures to value as determined in good faith using redemption received in proper form— reduce its holdings of illiquid securities. methods approved by the Fund’s Board plus cash in an amount equal to the While the Fund may invest up to 10% of Trustees. difference between the NAV of the of its total assets in leveraged, inverse, Shares being redeemed, as next or inverse leveraged Underlying ETPs, Creation and Redemption of Shares determined after a receipt of a request such investments will not be used to According to the Registration in proper form, and the value of the enhance the leverage of the Fund as a Statement, the Fund will issue and Fund securities, less a redemption whole and will otherwise be consistent redeem Shares on a continuous basis at transaction fee. with the Fund’s investment objective. the NAV only in a large specified The Shares will conform to the initial Consistent with the Exemptive Order, number of Shares called a ‘‘Creation and continued listing criteria under the Fund will not invest in options Unit.’’ The Shares of the Fund that trade NYSE Arca Equities Rule 8.600. contracts, futures contracts, or swap on the Exchange will be ‘‘created’’ at Consistent with NYSE Arca Equities agreements. The Fund may invest up to their NAV by market makers, large Rule 8.600(d)(2)(B)(ii), the Adviser will 10% of total assets in ADRs traded over- investors, and institutions only in block- implement and maintain, or be subject 19 the-counter. size Creation Units of at least 25,000 to, procedures designed to prevent the The Fund will not invest in any non- Shares. A ‘‘creator’’ will enter into an use and dissemination of material non- U.S. registered equity security, authorized participant agreement public information regarding the actual including depositary receipts. (‘‘Participant Agreement’’) with the components of the Fund’s portfolio. The According to the Registration Distributor or use a Depository Trust Exchange represents that, for initial Statement, the Fund will seek to qualify Company participant who has executed and/or continued listing, the Fund will for treatment as a Regulated Investment a Participant Agreement (‘‘Authorized be in compliance with Rule 10A–3 Company (‘‘RIC’’) under the Code.20 21 Participant’’), and will deposit into the under the Exchange Act, as provided Fund a portfolio of securities closely by NYSE Arca Equities Rule 5.3. A 17 See Form N–1A, Item 9. The Commission has minimum of 100,000 Shares will be taken the position that a fund is concentrated if it approximating the holdings of the Fund invests more than 25% of the value of its total and a specified amount of cash, together outstanding at the commencement of assets in any one industry. See, e.g., Investment trading on the Exchange. The Exchange Company Act Release No. 9011 (October 30, 1975), least 90% of the Fund’s gross income each year will obtain a representation from the 40 FR 54241 (November 21, 1975). from dividends, interest, payments with respect to issuer of the Shares that the NAV per 18 The Commission has stated that long-standing securities loans, gains from the sale or other Share will be calculated daily and that Commission guidelines have required open-end disposition of stock, securities or foreign currencies, funds to hold no more than 15% of their net assets or other income derived with respect to the Fund’s the NAV and the Disclosed Portfolio, as in illiquid securities and other illiquid assets. See investments in stock, securities, foreign currencies, defined in NYSE Arca Equities Rule Investment Company Act Release No. 28193 (March and net income from an interest in a qualified 8.600(c)(2), will be made available to all 11, 2008), 73 FR 14617 (March 18, 2008), footnote publicly traded partnership (‘‘90% Test’’). A second market participants at the same time. 34. See also Investment Company Act Release No. requirement for qualification as a RIC is that the 5847 (October 21, 1969), 35 FR 19989 (December Fund must diversify its holdings so that, at the end Availability of Information 31, 1970) (Statement Regarding ‘‘Restricted of each fiscal quarter of the Fund’s taxable year: (a) Securities’’); and Investment Company Act Release At least 50% of the market value of the Fund’s total The Fund’s Web site No. 18612 (March 12, 1992), 57 FR 9828 (March 20, assets is represented by cash and cash items, U.S. (www.advisorshares.com), which will be 1992) (Revisions of Guidelines to Form N–1A). A Government securities, securities of other RICs, and publicly available prior to the public fund’s portfolio security is illiquid if it cannot be other securities, with these other securities limited, disposed of in the ordinary course of business in respect to any one issuer, to an amount not offering of Shares, will include a form within seven days at approximately the value greater than 5% of the value of the Fund’s total of the prospectus for the Fund that may ascribed to it by the ETF. See Investment Company assets or 10% of the outstanding voting securities be downloaded. The Fund’s Web site Act Release No. 14983 (March 12, 1986), 51 FR of such issuer; and (b) not more than 25% of the will include additional quantitative 9773 (March 21, 1986) (adopting amendments to value of its total assets are invested in the securities Rule 2a–7 under the 1940 Act); and Investment (other than U.S. Government securities or securities information updated on a daily basis, Company Act Release No. 17452 (April 23, 1990), of other RICs) of any one issuer or two or more including, for the Fund, (1) daily trading 55 FR 17933 (April 30, 1990) (adopting Rule 144A issuers which the Fund controls and which are volume, the prior business day’s under the Securities Act of 1933). engaged in the same, similar, or related trades or 19 See note 10, supra. businesses, or the securities of one or more reported closing price, NAV and mid- 20 26 U.S.C. 851. One of several requirements for qualified publicly traded partnership (‘‘Asset RIC qualification is that the Fund must receive at Test’’). 21 17 CFR 240.10A–3.

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point of the bid/ask spread at the time electronic services. Information Trading Rules of calculation of such NAV (‘‘Bid/Ask regarding the previous day’s closing The Exchange deems the Shares to be Price’’),22 and a calculation of the price and trading volume information equity securities, thus rendering trading premium and discount of the Bid/Ask for the Shares will be published daily in in the Shares subject to the Exchange’s Price against the NAV, and (2) data in the financial section of newspapers. existing rules governing the trading of chart format displaying the frequency Quotation and last-sale information for equity securities. Shares will trade on distribution of discounts and premiums the Shares will be available via the the NYSE Arca Marketplace from 4:00 of the daily Bid/Ask Price against the Consolidated Tape Association (‘‘CTA’’) a.m. to 8:00 p.m. E.T. in accordance NAV, within appropriate ranges, for high-speed line, and, for the underlying with NYSE Arca Equities Rule 7.34 each of the four previous calendar securities, will be available from the (Opening, Core, and Late Trading quarters. On each business day, before national securities exchange on which Sessions). The Exchange has commencement of trading in Shares in they are listed. In addition, the Portfolio appropriate rules to facilitate the Core Trading Session on the Indicative Value, as defined in NYSE transactions in the Shares during all Exchange, the Fund will disclose on its Arca Equities Rule 8.600(c)(3), will be trading sessions. As provided in NYSE Web site the Disclosed Portfolio that widely disseminated at least every 15 Arca Equities Rule 7.6, Commentary .03, will form the basis for the Fund’s seconds during the Core Trading the minimum price variation (‘‘MPV’’) calculation of NAV at the end of the Session by one or more major market for quoting and entry of orders in equity business day.23 data vendors.24 The dissemination of securities traded on the NYSE Arca On a daily basis, the Adviser will the Portfolio Indicative Value, together disclose for each portfolio security and Marketplace is $0.01, with the exception with the Disclosed Portfolio, will allow of securities that are priced less than other financial instrument of the Fund investors to determine the value of the the following information: Ticker $1.00 for which the MPV for order entry underlying portfolio of the Fund on a is $0.0001. symbol (if applicable), name of security daily basis and will provide a close and financial instrument, number of estimate of that value throughout the Surveillance shares or dollar value of securities and trading day. The Exchange intends to utilize its financial instruments held in the Additional information regarding the portfolio, and percentage weighting of existing surveillance procedures Trust and the Shares, including applicable to derivative products (which the security and financial instrument in investment strategies, risks, creation and the portfolio. The Web site information include Managed Fund Shares) to redemption procedures, fees, portfolio monitor trading in the Shares. The will be publicly available at no charge. holdings disclosure policies, In addition, a basket composition file, Exchange represents that these distributions, and taxes is included in procedures are adequate to properly which includes the security names and the Registration Statement. All terms share quantities required to be delivered monitor Exchange trading of the Shares relating to the Fund that are referred to, in all trading sessions and to deter and in exchange for Fund Shares, together but not defined in, this proposed rule with estimates and actual cash detect violations of Exchange rules and change are defined in the Registration applicable federal securities laws. components, will be publicly Statement. disseminated daily prior to the opening The Exchange’s current trading of the NYSE via the National Securities Trading Halts surveillance focuses on detecting securities trading outside their normal Clearing Corporation. The basket With respect to trading halts, the represents one Creation Unit of the patterns. When such situations are Exchange may consider all relevant detected, surveillance analysis follows Fund. factors in exercising its discretion to Investors can also obtain the Trust’s and investigations are opened, where halt or suspend trading in the Shares of Statement of Additional Information appropriate, to review the behavior of the Fund.25 Trading in Shares of the (‘‘SAI’’), the Fund’s Shareholder all relevant parties for all relevant Fund will be halted if the circuit breaker Reports, and its Form N–CSR and Form trading violations. parameters in NYSE Arca Equities Rule N–SAR, filed twice a year. The Trust’s The Exchange may obtain information 7.12 have been reached. Trading also SAI and Shareholder Reports are via the Intermarket Surveillance Group may be halted because of market available free upon request from the (‘‘ISG’’) from other exchanges that are conditions or for reasons that, in the Trust, and those documents and the members of ISG or with which the view of the Exchange, make trading in Form N–CSR and Form N–SAR may be Exchange has entered into a the Shares inadvisable. These may viewed on-screen or downloaded from comprehensive surveillance sharing include: (1) The extent to which trading the Commission’s Web site at agreement.26 In addition, the Exchange is not occurring in the securities and/or www.sec.gov. Information regarding could obtain information from the U.S. the financial instruments comprising market price and trading volume of the exchanges on which the Underlying the Disclosed Portfolio of the Fund; or Shares will be continually available on ETPs, common stock, exchange-listed (2) whether other unusual conditions or a real-time basis throughout the day on ADRs, and other U.S. exchange-listed circumstances detrimental to the brokers’ computer screens and other securities are listed and traded. maintenance of a fair and orderly market are present. Trading in the 22 The Bid/Ask Price of the Fund is determined 26 For a list of the current members of ISG, see using the midpoint of the highest bid and the Shares will be subject to NYSE Arca www.isgportal.org. The Exchange notes that not all lowest offer on the Exchange as of the time of Equities Rule 8.600(d)(2)(D), which sets components of the Disclosed Portfolio for the Fund calculation of the Fund’s NAV. The records relating forth circumstances under which Shares may trade on markets that are members of ISG or to Bid/Ask Prices will be retained by the Fund and of the Fund may be halted. with which the Exchange has in place a its service providers. comprehensive surveillance sharing agreement. All 23 Under accounting procedures followed by the Underlying ETPs and securities in which the Fund Fund, trades made on the prior business day (‘‘T’’) 24 Currently, it is the Exchange’s understanding may invest will be listed on securities exchanges, will be booked and reflected in NAV on the current that several major market data vendors display and/ all of which are members of ISG or are parties to business day (‘‘T+1’’). Accordingly, the Fund will or make widely available Portfolio Indicative a comprehensive surveillance sharing agreement be able to disclose at the beginning of the business Values published on CTA or other data feeds. with the Exchange, provided that the Fund may day the portfolio that will form the basis for the 25 See NYSE Arca Equities Rule 7.12, invest up to 10% of total assets in ADRs traded NAV calculation at the end of the business day. Commentary .04. over-the-counter. See note 10, supra.

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In addition, the Exchange also has a adequate to properly monitor trading in security or other financial instrument of general policy prohibiting the the Shares in all trading sessions and to the Fund the following information: distribution of material, non-public deter and detect violations of Exchange Ticker symbol, name of security and/or information by its employees. rules and applicable federal securities financial instrument, number of shares laws. The Exchange may obtain Information Bulletin or dollar value of securities and information via ISG from other financial instruments held in the Prior to the commencement of exchanges that are members of ISG or portfolio, and percentage weighting of trading, the Exchange will inform its with which the Exchange has entered the security and/or financial instrument Equity Trading Permit (‘‘ETP’’) Holders into a comprehensive surveillance in an Information Bulletin (‘‘Bulletin’’) in the portfolio. Moreover, prior to the sharing agreement. All Underlying ETPs commencement of trading, the Exchange of the special characteristics and risks and securities in which the Fund may associated with trading the Shares. will inform its ETP Holders in an invest will be listed on securities Information Bulletin of the special Specifically, the Bulletin will discuss exchanges, all of which are members of characteristics and risks associated with the following: (1) The procedures for ISG or have entered into a trading the Shares. Trading in Shares of purchases and redemptions of Shares in comprehensive surveillance sharing Creation Unit aggregations (and that agreement with the Exchange, provided the Fund will be halted if the circuit Shares are not individually redeemable); that the Fund may invest up to 10% of breaker parameters in NYSE Arca (2) NYSE Arca Equities Rule 9.2(a), total assets in ADRs traded over-the- Equities Rule 7.12 have been reached or which imposes a duty of due diligence counter. While the Fund may invest up because of market conditions or for on its ETP Holders to learn the essential to 10% of its total assets in leveraged, reasons that, in the view of the facts relating to every customer prior to inverse, or inverse leveraged Underlying Exchange, make trading in the Shares trading the Shares; (3) the risks involved ETPs, such investments will not be used inadvisable. Trading in the Shares will in trading the Shares during the to enhance the leverage of the Fund as be subject to NYSE Arca Equities Rule Opening and Late Trading Sessions a whole and will otherwise be 8.600(d)(2)(D), which sets forth when an updated Portfolio Indicative consistent with the Fund’s investment circumstances under which Shares of Value will not be calculated or publicly objective. The Fund will not hold more the Fund may be halted. In addition, as disseminated; (4) how information than 15% of the Fund’s net assets in noted above, investors will have ready regarding the Portfolio Indicative Value illiquid securities, including Rule 144A access to information regarding the is disseminated; (5) the requirement that securities and loan participations. Fund’s holdings, the Portfolio Indicative ETP Holders deliver a prospectus to Consistent with the Exemptive Order, Value, the Disclosed Portfolio, and investors purchasing newly issued the Fund will not invest in options Shares prior to or concurrently with the quotation and last-sale information for contracts, futures contracts, or swap the Shares. confirmation of a transaction; and (6) agreements. The Fund will not invest in The proposed rule change is designed trading information. any non-U.S. registered equity security, In addition, the Bulletin will including depositary receipts. to perfect the mechanism of a free and reference that the Fund is subject to open market and, in general, to protect various fees and expenses described in The proposed rule change is designed investors and the public interest in that to promote just and equitable principles the Registration Statement. The Bulletin it will facilitate the listing and trading of trade and to protect investors and the will discuss any exemptive, no-action, of an additional type of actively- public interest in that the Exchange will and interpretive relief granted by the managed exchange-traded product that Commission from any rules under the obtain a representation from the issuer of the Shares that the NAV per Share will enhance competition among market Exchange Act. The Bulletin will also participants, to the benefit of investors disclose that the NAV for the Shares will be calculated daily and that the NAV and the Disclosed Portfolio will be and the marketplace. As noted above, will be calculated after 4:00 p.m. E.T. the Exchange has in place surveillance each trading day. made available to all market participants at the same time. In procedures relating to trading in the 2. Statutory Basis addition, a large amount of information Shares and may obtain information via The basis under the Exchange Act for is publicly available regarding the Fund ISG from other exchanges that are this proposed rule change is the and the Shares, thereby promoting members of ISG or with which the requirement under Section 6(b)(5) 27 market transparency. Quotation and Exchange has entered into a that an exchange have rules that are last-sale information for the Shares will comprehensive surveillance sharing designed to prevent fraudulent and be available via the CTA high-speed agreement. In addition, as noted above, manipulative acts and practices, to line. In addition, the Portfolio Indicative investors will have ready access to promote just and equitable principles of Value will be widely disseminated by information regarding the Fund’s trade, to remove impediments to, and the Exchange at least every 15 seconds holdings, the Portfolio Indicative Value, perfect the mechanism of a free and during the Core Trading Session. The the Disclosed Portfolio, and quotation open market and, in general, to protect Fund’s Web site will include a form of and last-sale information for the Shares. investors and the public interest. the prospectus for the Fund that may be The Exchange believes that the downloaded, as well as additional B. Self-Regulatory Organization’s proposed rule change is designed to quantitative information updated on a Statement on Burden on Competition prevent fraudulent and manipulative daily basis. On each business day, The Exchange does not believe that acts and practices in that the Shares will before commencement of trading in the proposed rule change will impose be listed and traded on the Exchange Shares in the Core Trading Session on pursuant to the initial and continued the Exchange, the Fund will disclose on any burden on competition that is not listing criteria in NYSE Arca Equities its Web site the Disclosed Portfolio that necessary or appropriate in furtherance Rule 8.600. The Exchange has in place will form the basis for the Fund’s of the purposes of the Act. surveillance procedures that are calculation of NAV at the end of the business day. On a daily basis, the 27 15 U.S.C. 78f(b)(5). Adviser will disclose for each portfolio

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C. Self-Regulatory Organization’s Commission and any person, other than under NASDAQ Rule 4751(f). The text Statement on Comments on the those that may be withheld from the of the proposed rule change is available Proposed Rule Change Received From public in accordance with the from NASDAQ’s Web site at http:// Members, Participants, or Others provisions of 5 U.S.C. 552, will be nasdaq.cchwallstreet.com/Filings/, at No written comments were solicited available for Web site viewing and NASDAQ’s principal office, and at the or received with respect to the proposed printing in the Commission’s Public Commission’s Public Reference Room. rule change. Reference Section, 100 F Street NE., Washington, DC 20549, on official II. Self-Regulatory Organization’s III. Date of Effectiveness of the business days between 10:00 a.m. and Statement of the Purpose of, and Proposed Rule Change and Timing for 3:00 p.m. Copies of the filing will also Statutory Basis for, the Proposed Rule Commission Action be available for inspection and copying Change Within 45 days of the date of at the NYSE’s principal office and on its In its filing with the Commission, publication of this notice in the Federal Internet Web site at www.nyse.com. All NASDAQ included statements Register or within such longer period (i) comments received will be posted concerning the purpose of and basis for as the Commission may designate up to without change; the Commission does the proposed rule change and discussed 90 days of such date if it finds such not edit personal identifying any comments it received on the longer period to be appropriate and information from submissions. You proposed rule change. The text of these publishes its reasons for so finding or should submit only information that statements may be examined at the (ii) as to which the self-regulatory you wish to make available publicly. All places specified in Item IV below. organization consents, the Commission submissions should refer to File NASDAQ has prepared summaries, set will: Number SR–NYSEArca–2012–39 and forth in sections A, B, and C below, of (A) By order approve or disapprove should be submitted on or before June the most significant aspects of such the proposed rule change, or 7, 2012. statements. For the Commission, by the Division of (B) Institute proceedings to determine A. Self-Regulatory Organization’s whether the proposed rule change Trading and Markets, pursuant to delegated 28 Statement of the Purpose of, and the should be disapproved. authority. Kevin M. O’Neill, Statutory Basis for, the Proposed Rule IV. Solicitation of Comments Deputy Secretary. Change Interested persons are invited to [FR Doc. 2012–11928 Filed 5–16–12; 8:45 am] 1. Purpose submit written data, views, and BILLING CODE 8011–01–P arguments concerning the foregoing, In order to provide enhanced including whether the proposed rule functionality, NASDAQ is proposing to change is consistent with the Act. SECURITIES AND EXCHANGE establish a set of ‘‘Benchmark Orders,’’ Comments may be submitted by any of COMMISSION a new order type for use in trading cash the following methods: equities. The Benchmark Order will [Release No. 34–66972; File No. SR– offer members the ability to enter a Electronic Comments NASDAQ–2012–059] single order in a single security seeking • Use the Commission’s Internet Self-Regulatory Organizations; The to match the performance of a selected comment form (http://www.sec.gov/ NASDAQ Stock Market LLC; Notice of benchmark over a pre-determined rules/sro.shtml); or Filing of Proposed Rule Change To period of time. The Benchmark Order • Send an email to rule- Establish ‘‘Benchmark Orders’’ Under will provide entering firms additional [email protected]. Please include File NASDAQ Rule 4751(f) tools to manage large trades, including Number SR–NYSEArca–2012–39 on the potentially reducing price impact from subject line. May 11, 2012. such large trades. These Benchmark Pursuant to Section 19(b)(1) of the Orders will also assist entering firms by Paper Comments Securities Exchange Act of 1934 increasing flexibility to manage their • Send paper comments in triplicate (‘‘Act’’),1 and Rule 19b–4 thereunder,2 trading interest intraday. To further to Elizabeth M. Murphy, Secretary, notice is hereby given that on May 1, assist members, NASDAQ will provide Securities and Exchange Commission, 2012, The NASDAQ Stock Market LLC those entering Benchmark Orders with 100 F Street NE., Washington, DC (‘‘NASDAQ’’ or ‘‘Exchange’’) filed with detailed analytics with which to 20549–1090. the Securities and Exchange measure the performance of Benchmark Commission (‘‘SEC’’ or ‘‘Commission’’) Orders vis a` vis the relevant All submissions should refer to File the proposed rule change as described benchmarks. Number SR–NYSEArca–2012–39. This in Items I, II and III below, which Items file number should be included on the The Benchmark Order will not itself have been prepared by NASDAQ. The subject line if email is used. To help the be available for execution, but instead Commission is publishing this notice to Commission process and review your will be used by a sub-system of the solicit comments on the proposed rule comments more efficiently, please use trading system to generate a series of change from interested persons. only one method. The Commission will ‘‘Child Orders’’ of the types that already post all comments on the Commission’s I. Self-Regulatory Organization’s exist in the current NASDAQ rules. The Internet Web site (http://www.sec.gov/ Statement of the Terms of Substance of Child Orders of a Benchmark Order may rules/sro.shtml). Copies of the the Proposed Rule Change be executed within the NASDAQ system submission, all subsequent under NASDAQ’s existing processing NASDAQ is filing with the rules, or made available for routing amendments, all written statements Commission a proposed rule change to under NASDAQ’s current routing rules.3 with respect to the proposed rule establish various ‘‘Benchmark Orders’’ change that are filed with the 3 As with routable orders today, Child Orders Commission, and all written 28 17 CFR 200.30–3(a)(12). entered onto the NASDAQ book will be in the communications relating to the 1 15 U.S.C. 78s(b)(1). members’ name, while orders routed to other proposed rule change between the 2 17 CFR 240.19b–4. Continued

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All Child Orders of Benchmark Orders as set forth in NASDAQ Rule 4751.6 Child Orders of Benchmark Orders will comport with NASDAQ’s existing Child Orders will also be marked with will be processed in an identical rules, including (for example) rules unique identifiers, as is the case for all manner to orders generated designed to enforce compliance with orders, for use in linking Child Orders independently of a Benchmark Order. Regulation NMS and the SEC Market to Benchmark Orders. Other than Trade reporting, OATS reporting, and Access Rule. creating a Benchmark Order type for clearing of Child Orders and trades will Initially, NASDAQ will offer three entry purposes, no new order types or occur in the same manner as currently underlying benchmarks for the times in force are being proposed. existing order types. Additionally, pre- Benchmark Orders: Volume Weighted The Application will not be capable trade checks required by the Market Average Price (‘‘VWAP’’), Time of executing either Benchmark Orders or Access Rule (SEC Rule 15c3–5) will be Weighted Average Price (‘‘TWAP’’) and Child Orders but will instead send made on both Benchmark Orders Child Orders, using the proper system submitted by members as well as Child Percent of Volume (‘‘POV’’). In addition 7 to order entry information common to protocol, to the NASDAQ matching Orders created by the Application. All all order types of all attributes— engine or to the NASDAQ router as Child Orders will be checked for needed to complete the Benchmark security, buy/sell side, shares, and compliance with Regulation NMS prior Order.8 Thus, returning to the previous price—a member choosing the to being routed. All fees applicable to example of a Benchmark Order to buy Benchmark Order will enter order existing orders and trades will apply to 5,000 shares at the VWAP, the 10 information relevant to the Benchmark Child Orders. The only difference in Application may determine it is ` Order attribute, including (for example) processing of Child Orders vis a vis necessary to send a marketable limit the benchmark selected, the start time independently formatted orders of the order to buy 1,000 shares of security and duration of the order, and the same type will be the system messages ABCD at $10.00 in order to complete the transmitted between the Application percent of volume target (if any). desired VWAP order. The Application and other parts of the NASDAQ system. NASDAQ members may enter will format the necessary orders, NASDAQ considers the Application Benchmark Orders via an existing perhaps two orders for 500 shares each, to be a functional offering of the NASDAQ protocol and an existing and send those orders to the NASDAQ NASDAQ Stock Market, similar to other NASDAQ port; no new protocols or 4 matching engine because NASDAQ is functions that process member trading ports will be required. Benchmark displaying 900 shares of ABCD at interest, including other order types, Orders will be assigned unique $10.00. The Application will continue order routing and order matching identification numbers, as is the case for to monitor market conditions, capabilities. Thus, although the all orders in the NASDAQ system, used recalculate the VWAP as necessary, technology will be licensed from a third for tracking purposes as described monitor the Child Orders generated and party (‘‘Third Party Provider’’), the below. executions received (via standard Application will be integrated closely Benchmark Orders will not be system messaging and tracking with the NASDAQ system and provided executed by the NASDAQ matching processes) and produce new Child to members subject to NASDAQ’s engine, but will upon entry be directed Orders as necessary to achieve the obligations and responsibilities as a self- to a system application dedicated to desired overall execution. Benchmark regulatory organization. processing Benchmark Orders Orders will be available for entry and NASDAQ has taken steps to provide (‘‘Application’’).5 The Application will execution during the system hours that the Application performs to the process the Benchmark Order in specified in NASDAQ rules. The parent standards NASDAQ sets for itself and accordance with pre-determined logic order will remain active in the that that the SEC sets for all SROs. For designed to achieve benchmark NASDAQ system until fully executed, example, NASDAQ will test the performance based upon the entering expired, or cancelled by the entering Application rigorously and regularly to firm’s instructions. For example, member.9 ensure that the Application is consider a Benchmark Order containing performing the desired calculations and instructions for the Application to buy 6 Child Orders may be generated by the System that it is doing so in a manner that 5,000 shares and achieve a VWAP in using preexisting order types in the RASH system, complies with applicable SEC including previously filed strategies (e.g. SCAN, regulations and NASDAQ rules. Security ABCD over the period from STGY, ISNY). Child Orders may be generated with 9:30 a.m. to 10:00 a.m. The Application instructions available to pre-existing order types NASDAQ will monitor the Application logic will include the calculation of a including but not limited to Limit Orders, Market performance on a real-time and VWAP, the method for replicating that Pegged Orders, Primary Pegged Orders, Midpoint continuous basis just as it monitors all Pegged Orders, orders with instructions to functions performed by the NASDAQ VWAP, the order types necessary to participate in opening or closing crosses, Post-Only achieve that replication, and the prices Orders, Intermarket Sweep Orders, Minimum system. NASDAQ will have access to at which such orders would need to Quantity Orders, Non-Display Orders, and Directed the technology, employees and books execute. The Application will generate Orders. and records of the third party provider such Child Orders as are necessary to 7 Benchmark Orders may be entered using the that are related to the Application and INET FIX or NASDAQ RASH protocols. Child its interaction with NASDAQ and achieve the desired benchmark selected Orders will use available protocols in the same way by the entering firm. Child Orders will that similar orders use them independent of NASDAQ members. be formatted using already-approved Benchmark Orders. Different protocols offer The Third Party Provider will have no NASDAQ order types and times in force members different means of setting parameters discretion with respect to Benchmark based on the technological characteristics of the Orders and will have no authority other protocols. than to apply the licensed technology to venues will be performed by NASDAQ Execution 8 Child Orders that require routing will be routed Services (‘‘NES’’). by NES, NASDAQ’s wholly-owned routing broker- such Benchmark Orders it receives from 4 Currently, orders that may become available for dealer, according to the same rules and processes NASDAQ. Neither the Third Party routing, including Benchmark Orders if approved, applicable to all orders routed from NASDAQ are entered using either NASDAQ’s proprietary pursuant to NASDAQ Rule 4758. 10 NASDAQ has not determined the level of fee INET FIX or RASHport protocol. 9 In the event a member cancels an order, that to assess for the execution of a Benchmark Order. 5 The relationship between NASDAQ and the member will be responsible for all executions When NASDAQ determines the proper fee for the Application technology provider is described in completed prior to the time of cancellation, as well Benchmark Order, it will file a proposed rule more detail below. as all fees appurtenant to such executions. change as required.

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Provider nor its employees will have general, to protect investors and the To the contrary, the establishment of information or access to information public interest. Benchmark Orders on NASDAQ will about NASDAQ members that submit Specifically, NASDAQ believes that enhance NASDAQ’s ability to compete Benchmark Orders. Benchmark Orders the Benchmark Order is consistent with with similar functionality that already is will be received by NASDAQ and not by and supports the goals of Section 6(b)(5) widely dispersed in the industry both the Third Party Provider, and messages because it facilitates transactions in among members and trading venues. sent from NASDAQ to the Third Party securities and improves trading within The Benchmark Order is a voluntary Provider will contain no information by the national market system. The offering; voluntary on the part of the which the Third Party Provider can Benchmark Order will permit members Exchange which is not required to offer identify the specific NASDAQ member to achieve on an exchange via a single it and voluntary on the part of members that entered the order(s). The Third order type what previously has required that are not required to use it. If the Party Provider will store messages access to multiple venues using predicted enhancements and related to NASDAQ Benchmark Orders multiple order types. NASDAQ will improvements of the Benchmark Order only for the purposes of providing end- enable members to leverage NASDAQ’s do not materialize, members will simply of-day analytics and to comply with existing access and existing order types choose to ignore it. NASDAQ’s decision applicable books and records to make benchmarking easier and more to offer the Benchmark Order is a requirements. efficient. For the members that already further indication of the The Third Party Provider will have no have such capabilities, the Benchmark competitiveness of the market for actionable advantage over NASDAQ Order will represent another option. trading platforms. Continued members with respect to the NASDAQ Additionally, the Benchmark Order will improvements and enhancements such system. The third party hardware and expand benchmarking capability to as the Benchmark Order are necessary software will be subordinate to the firms that currently lack it or lack an in order to attract order flow and NASDAQ matching engine and router. exchange-based alternative. execute transactions. This need is The Application will not itself be NASDAQ further believes that the heightened because the functionality capable of executing orders; it will only Benchmark Order will achieve new underlying the Benchmark Order has for generate messages and instructions to be efficiency and cost savings for members. some time been made available by carried out by the NASDAQ system in For NASDAQ members that rely on alternative trading systems that perform accordance with existing NASDAQ NASDAQ to help manage a significant functions similar to NASDAQ but that rules. NASDAQ will maintain control of percentage of their order flow, the have been exempted from the and responsibility for the Application Benchmark Order will extend that requirements of filing proposed rule and the NASDAQ system. The Third capability and thereby allow members changes, among others. Party Provider has a registered broker- to manage more order flow at a single dealer affiliate; however that affiliate trading platform. Members that choose C. Self-Regulatory Organization’s will be performing no broker-dealer to use Benchmark Orders will use the Statement on Comments on the functions with respect to NASDAQ same ports and connectivity and the Proposed Rule Change Received From Benchmark Orders.11 The sole function same programming protocols that they Members, Participants, or Others to be performed by the Third Party currently use for other NASDAQ orders. Written comments were neither Provider’s broker-dealer affiliate will be Additionally, because Benchmark solicited nor received. to accept from NASDAQ post-execution Orders will be based on the same market per-share compensation related to data that NASDAQ uses today, members III. Date of Effectiveness of the Benchmark Orders. should incur no additional charges for Proposed Rule Change and Timing for market data feeds. Commission Action 2. Statutory Basis Finally, the Benchmark Order will Within 45 days of the date of NASDAQ believes that the proposed increase transparency because NASDAQ publication of this notice in the Federal rule change is consistent with the will offer members detailed analytics Register or within such longer period (i) provisions of Section 6 of the Act,12 in regarding the performance of their as the Commission may designate up to general, and with Section 6(b)(5) of the Benchmark Orders. These analytics will 90 days of such date if it finds such 13 Act, in particular, in that the proposal be a ‘‘scorecard’’ not available today longer period to be appropriate and is designed to prevent fraudulent and against which members will measure publishes its reasons for so finding or manipulative acts and practices, to the actual performance of Benchmark (ii) as to which the Exchange consents, promote just and equitable principles of Orders versus the selected benchmark. the Commission shall: (a) by order trade, to foster cooperation and Members may use this tool to approve or disapprove such proposed coordination with persons engaged in experiment with Benchmark Orders rule change, or (b) institute proceedings regulating, clearing, settling, processing and, if successful, determine to enter to determine whether the proposed rule information with respect to, and additional Benchmark Orders or to change should be disapproved. facilitating transactions in securities, to refrain from entering them. The remove impediments to and perfect the analytics will be limited to information IV. Solicitation of Comments mechanism of a free and open market concerning the members’ own Interested persons are invited to and a national market system, and, in executions and as such will include no submit written data, views, and market data that is proprietary to arguments concerning the foregoing, 11 As described above, Child Orders generated by another member. including whether the proposed rule the Application that require routing will be routed change is consistent with the Act. by NES and not by the Third Party Provider or its B. Self-Regulatory Organization’s Comments may be submitted by any of broker-dealer affiliate. As a result, the Third Party Statement on Burden on Competition Provider and affiliate will have no reporting the following methods: obligations with respect to Benchmark Orders NASDAQ does not believe that the under NASDAQ’s OATS rules. See OATS proposed rule change will result in any Electronic Comments Technology Specifications Scenario 4.4.22 (Routing • Services Provided By Members). burden on competition that is not Use the Commission’s Internet 12 15 U.S.C. 78f. necessary or appropriate in furtherance comment form (http://www.sec.gov/ 13 15 U.S.C. 78f(b)(5). of the purposes of the Act, as amended. rules/sro.shtml); or

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• Send an email to rule- SECURITIES AND EXCHANGE A. Self-Regulatory Organization’s [email protected]. Please include File COMMISSION Statement of the Purpose of, and the Number SR–NASDAQ–2012–059 on the Statutory Basis for, the Proposed Rule subject line. [Release No. 34–66970; File No. SR–EDGX– Change Paper Comments 2012–17] 1. Purpose • Send paper comments in triplicate Self-Regulatory Organizations; EDGX Currently, Flag N is yielded when an to Elizabeth M. Murphy, Secretary, Exchange, Inc.; Notice of Filing and order removes liquidity from the EDGX Securities and Exchange Commission, Immediate Effectiveness of Proposed book in Tapes B or C securities. In this 100 F Street NE., Washington, DC Rule Change Relating to Amendments case, a charge of $0.0029 per share is 20549–1090. to the EDGX Exchange, Inc. Fee assessed. Schedule All submissions should refer to File In order to provide additional Number SR–NASDAQ–2012–059. This May 11, 2012. transparency to Members, the Exchange file number should be included on the Pursuant to Section 19(b)(1) of the proposes to amend Flag N so that it only subject line if email is used. To help the Securities Exchange Act of 1934 (the applies to orders that remove liquidity Commission process and review your ‘‘Act’’),1 and Rule 19b–4 thereunder,2 from the EDGX book in Tape C comments more efficiently, please use notice is hereby given that on May 1, securities. The Exchange will continue only one method. The Commission will 2012 the EDGX Exchange, Inc. (the to assess a charge of $0.0029 per share post all comments on the Commission’s ‘‘Exchange’’ or the ‘‘EDGX’’) filed with for Members that utilize Flag N. The Internet Web site (http://www.sec.gov/ the Securities and Exchange Exchange then proposes to add Flag BB rules/sro.shtml). Copies of the Commission (‘‘Commission’’) the for orders that remove liquidity from the submission, all subsequent proposed rule change as described in EDGX book in Tape B securities. The amendments, all written statements Items I, II, and III below, which items Exchange proposes to assess a charge of with respect to the proposed rule have been prepared by the self- $0.0029 per share for Members that change that are filed with the regulatory organization. The utilize Flag BB. In addition, similar to Commission, and all written Commission is publishing this notice to the footnotes appended to Flag N, the communications relating to the solicit comments on the proposed rule Exchange proposes to append Footnotes proposed rule change between the change from interested persons. 1 and 12 to Flag BB. Therefore, Members will be eligible for the tiers Commission and any person, other than I. Self-Regulatory Organization’s provided for in Footnote 1 if the those that may be withheld from the Statement of the Terms of Substance of conditions outlined therein are satisfied. public in accordance with the the Proposed Rule Change In addition, Members using Flag BB will provisions of 5 U.S.C. 552, will be be subject to the conditions of Footnote available for Web site viewing and The Exchange proposes to amend its 3 12 because Flag BB is a removal flag. printing in the Commission’s Public fees and rebates applicable to Members The Exchange also proposes to include Reference Room, 100 F Street, NE., of the Exchange pursuant to EDGX Rule 15.1(a) and (c). All of the changes Flag BB in the list of removal flags in Washington, DC 20549, on official described herein are applicable to EDGX Footnote 13 with regards to the Investor business days between the hours of Members. The text of the proposed rule Tier. The Exchange notes that Flag N is 10:00 a.m. and 3:00 p.m. Copies of the change is available on the Exchange’s currently in the list of removal flags for filing also will be available for Internet Web site at http:// Footnotes 12 and 13. inspection and copying at the principal www.directedge.com, at the Exchange’s office of Nasdaq. All comments received The Exchange also proposes to amend principal office, and at the Public the message-to-trade ratio in (iii) of will be posted without change; the Reference Room of the Commission. Commission does not edit personal Footnote 13 from less than 4:1 to less identifying information from II. Self-Regulatory Organization’s than 6:1. Therefore, Footnote 13, after submissions. You should submit only Statement of the Purpose of, and the amendments described above are information that you wish to make Statutory Basis for, the Proposed Rule applied will read, ‘‘A Member can available publicly. All submissions Change qualify for an Investor Tier and be should refer to File Number SR– provided a rebate of $0.0030 per share In its filing with the Commission, the if they meet the following criteria: (i) On NASDAQ–2012–059 and should be self-regulatory organization included submitted on or before June 7, 2012. a daily basis, measured monthly, posts statements concerning the purpose of, an ADV of at least 8 million shares on For the Commission, by the Division of and basis for, the proposed rule change EDGX where added flags are defined as and discussed any comments it received Trading and Markets, pursuant to delegated B, HA, V, Y, MM, 3, or 4; (ii) have an 14 on the proposed rule change. The text authority. ‘‘added liquidity’’ to ‘‘removed of these statements may be examined at Kevin M. O’Neill, liquidity’’ ratio of at least 70% where the places specified in Item IV below. Deputy Secretary. added flags are defined as B, HA, V, Y, The self-regulatory organization has [FR Doc. 2012–11927 Filed 5–16–12; 8:45 am] prepared summaries, set forth in MM, 3, or 4 and removal flags are BILLING CODE 8011–01–P sections A, B and C below, of the most defined as BB, MT, N, W, PI, or 6; and significant aspects of such statements. (iii) have a message-to-trade ratio of less than 6:1.’’ 1 15 U.S.C. 78s(b)(1). The Exchange also proposes to make 2 17 CFR 240.19b–4. a technical amendment to reduce the 3 A Member is any registered broker or dealer, or rebate from $0.0004 per share to $0.0003 any person associated with a registered broker or per share for Flag RA. This change is a dealer, that has been admitted to membership in the 14 17 CFR 200.30–3(a)(12). Exchange. pass through of the EDGA reduction in

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rebate for removing liquidity, which from EDGX book in Tape C securities remain competitive with those charged was effective on April 1, 2012.4 promotes market transparency and by other venues and therefore continue The Exchange appended Footnote 11 improves investor protection by adding to be reasonable and equitably allocated to Flag 5 in its June 8, 2011 rule filing.5 additional transparency to the EDGX fee to Members. The Exchange proposes to make a schedule. This proposed change more B. Self-Regulatory Organization’s technical amendment to the first precisely delineates for Members paragraph of Footnote 11 to identify whether they are removing liquidity in Statement on Burden on Competition Flag 5 in the description of the footnote Tape B or Tape C securities. The The proposed rule change does not as one of the flags that yields proposed changes to Footnotes 12 and impose any burden on competition that internalization. In the second paragraph 13 to add Flag BB to the list of removal is not necessary or appropriate in of Footnote 11, the Exchange also flags for the applicable tiers/rates furtherance of the purposes of the Act. proposes a technical amendment to outlined also provides additional C. Self-Regulatory Organization’s specify that this paragraph only applies transparency to Members. The Exchange Statement on Comments on the to Flags EA or ER. also believes that the proposal is non- Proposed Rule Change Received From The Exchange also proposes to make discriminatory because it applies Members, Participants, or Others a technical amendment to the title of the uniformly to all Members. EDGX Book Feed. The Exchange The Exchange proposes to amend the The Exchange has not solicited, and proposes to rename ‘‘EDGX Book Feed’’ message-to-trade ratio in (iii) of does not intend to solicit, comments on to ‘‘EdgeBook Depth X’’ and to make Footnote 13 from less than 4:1 to less this proposed rule change. The conforming changes in the description than 6:1 because the Exchange believes Exchange has not received any on the fee schedule. that a message-to-trade ratio of less than unsolicited written comments from The Exchange proposes to implement 6:1 represents a more appropriate members or other interested parties. these amendments to its fee schedule on criterion for Members to qualify for a May 1, 2012. III. Date of Effectiveness of the rebate of $0.0030 per share associated Proposed Rule Change and Timing for 2. Basis with the Investor Tier. The Exchange Commission Action believes the proposed message-to-trade The Exchange believes that the ratio incentivizes Members to direct a The foregoing rule change has become proposed rule changes are consistent high quality order flow to the Exchange effective pursuant to Section 19(b)(3) of with the objectives of Section 6 of the 9 10 because the Exchange believes that such the Act and Rule 19b–4(f)(2) Act,6 in general, and furthers the high quality liquidity provisions will thereunder. At any time within 60 days objectives of Section 6(b)(4),7 in encourage price discovery and market of the filing of such proposed rule particular, as it is designed to provide transparency and improve investor change, the Commission summarily may for the equitable allocation of reasonable protection by encouraging growth in temporarily suspend such rule change if dues, fees and other charges among its liquidity. In addition, the Exchange also it appears to the Commission that such members and other persons using its believes that the proposal is non- action is necessary or appropriate in the facilities. public interest, for the protection of In order to provide additional discriminatory because it applies uniformly to all Members. investors, or otherwise in furtherance of transparency to Members, the Exchange the purposes of the Act. proposes to amend Flag N to apply to The reduction in rebate on Flag RA is orders that remove liquidity from EDGX a pass-through of the reduction in rebate IV. Solicitation of Comments on EDGA’s fee schedule for adding book in Tape C securities and to add Interested persons are invited to Flag BB to orders that remove liquidity liquidity from $0.0004 to $0.0003, effective April 1, 2012.8 The Exchange submit written data, views, and from the EDGX book in Tape B arguments concerning the foregoing, securities. The Exchange proposes to believes the proposed rebate of $0.0003 is equitable and reasonable as it including whether the proposed rule continue to assess a charge of $0.0029 change is consistent with the Act. per share for Members that utilize Flag represents a pass-through of the rebate for adding liquidity to the EDGA book. Comments may be submitted by any of N and the Exchange proposes to assess the following methods: a charge of $0.0029 per share for In addition, the Exchange also believes Members that utilize Flag BB. The that the proposed pass-through of this Electronic Comments rate is non-discriminatory because it Exchange believes that utilizing Flag BB • Use the Commission’s Internet to identify Members that remove applies uniformly to all Members. The Exchange also notes that it comment form (http://www.sec.gov/ liquidity from the EDGX book in Tape operates in a highly-competitive market rules/sro.shtml); or Send an email to B securities and utilizing Flag N to in which market participants can [email protected]. Please include identify Members that remove liquidity readily direct order flow to competing File Number SR–EDGX–2012–17 on the venues if they deem fee levels at a subject line. 4 See Securities Exchange Act Release No. 66763 (April 6, 2012), 77 FR 22008 (April 12, 2012) (SR– particular venue to be excessive. The Paper Comments EDGA–2012–13). proposed rule change reflects a • Send paper comments in triplicate 5 See Securities Exchange Act Release No. 64632 competitive pricing structure designed to Elizabeth M. Murphy, Secretary, (June 8, 2011), 76 FR 34792 (June 14, 2012) (SR– to incent market participants to direct EDGX–2011–17)[sic]. In SR–EDGX–2011–17, the Securities and Exchange Commission, their order flow to the Exchange. The Exchange appended Footnote 11 to Flag 5 and the 100 F Street NE., Washington, DC Exchange believes that the proposed Exchange represented that the internalization fee is 20549–1090. no more favorable than each prevailing maker/taker rates are equitable and non- spread. However, the Exchange noted that if a discriminatory in that they apply All submissions should refer to File Member receives a tiered rebate because the uniformly to all Members. The Number SR–EDGX–2012–17. This file Member posts 10,000,000 shares or more of average number should be included on the daily volume to EDGX, then the Member would get Exchange believes the fees and credits the current rate of $0.0001 per share per side for subject line if email is used. To help the customer internalization. 8 See Securities Exchange Act Release No. 66763 6 15 U.S.C. 78f. (April 6, 2012), 77 FR 22008 (April 12, 2012) (SR– 9 15 U.S.C. 78s(b)(3)(A). 7 15 U.S.C. 78f(b)(4). EDGA–2012–13). 10 17 CFR 19b–4(f)(2).

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Commission process and review your rule change as described in Items I, II the Opening Process when there is an comments more efficiently, please use and III below, which Items have been opening imbalance.5 only one method. The Commission will prepared by the Exchange. The PHLX Depth of Market is the post all comments on the Commission’s Commission is publishing this notice to equivalent of, and is based on, the Internet Web site (http://www.sec.gov/ solicit comments on the proposed rule NASDAQ ITCH to Trade Options or rules/sro.shtml). Copies of the change from interested persons. ‘‘ITTO’’ data feed that NASDAQ offers submission, all subsequent I. Self-Regulatory Organization’s amendments, all written statements under NASDAQ Options Market Statement of the Terms of Substance of with respect to the proposed rule (‘‘NOM’’) Rules, Chapter VI, Section the Proposed Rule Change 6 change that are filed with the 1(a)(3)(A). As with ITTO, subscribers Commission, and all written The Exchange proposes to establish a would use PHLX Depth of Market to communications relating to the direct market data product, PHLX Depth ‘‘build’’ their view of the PHLX book by proposed rule change between the of Market. PHLX Depth of Market is a adding individual orders that appear on Commission and any person, other than data feed that will include full depth of the feed, and subtracting individual those that may be withheld from the quotes and orders, imbalance orders that are executed. public in accordance with the information and last sale data for The Exchange will establish monthly options listed on PHLX. provisions of 5 U.S.C. 552, will be fees for the PHLX Depth of Market data available for Web site viewing and The text of the proposed rule change is available on the Exchange’s Web site product by way of a separate proposed printing in the Commission’s Public rule change, which the Exchange will Reference Room, 100 F Street NE., at http://www.nasdaqtrader.com/ submit after the PHLX Depth of Market Washington, DC 20549, on official micro.aspx?id=PHLXRulefilings, at the product is established. business days between the hours of principal office of the Exchange, and at 10:00 a.m. and 3:00 p.m. Copies of the the Commission’s Public Reference PHLX Depth of Market provides data filing also will be available for Room. that should enhance the ability to inspection and copying at the principal II. Self-Regulatory Organization’s analyze market conditions, and to create office of the Exchange. All comments Statement of the Purpose of, and and test trading models and analytical received will be posted without change; Statutory Basis for, the Proposed Rule strategies. The Exchange believes that the Commission does not edit personal Change PHLX Depth of Market is a valuable tool identifying information from that can be used to gain comprehensive In its filing with the Commission, the submissions. You should submit only insight into the trading activity in a Exchange included statements information that you wish to make particular option series. available publicly. All submissions concerning the purpose of and basis for should refer to File Number SR–EDGX– the proposed rule change and discussed 2. Statutory Basis 2012–17 and should be submitted on or any comments it received on the The Exchange believes that the before June 7, 2012. proposed rule change. The text of these statements may be examined at the proposed rule change is consistent with For the Commission, by the Division of places specified in Item IV below. The the provisions of Section 6 of the Act,7 Trading and Markets, pursuant to delegated in general and with Section 6(b)(5) of authority.11 Exchange has prepared summaries, set forth in sections A, B, and C below, of the Act,8 in that it is designed to Kevin M. O’Neill, the most significant aspects of such promote just and equitable principles of Deputy Secretary. statements. trade, to foster cooperation and [FR Doc. 2012–11925 Filed 5–16–12; 8:45 am] coordination with persons engaged in BILLING CODE 8011–01–P A. Self-Regulatory Organization’s Statement of the Purpose of, and the regulating, clearing, settling, processing Statutory Basis for, the Proposed Rule information with respect to, and SECURITIES AND EXCHANGE Change facilitating transactions in securities, to COMMISSION remove impediments to and perfect the 1. Purpose mechanism of a free and open market [Release No. 34–66967; File No. SR–Phlx– The purpose of the proposed rule and a national market system, and, in 2012–60] change is to establish the PHLX Depth general, to protect investors and the Self-Regulatory Organizations; of Market data product. PHLX Depth of public interest, by establishing a market NASDAQ OMX PHLX LLC; Notice of Market is a data product that provides: data product that enhances subscribers’ Filing and Immediate Effectiveness of (i) Order and quotation information for ability to make decisions on trading Proposed Rule Change To Establish individual quotes and orders on the strategy, and by providing data to the PHLX Depth of Market Data PHLX book; (ii) last sale information for facilitate such decisions in a timely Product trades executed on PHLX; and (iii) an manner. Imbalance Message, as described below. The Exchange represents that it will May 11, 2012. The Imbalance Message includes the Pursuant to Section 19(b)(1) of the symbol, side of the market, size of make the PHLX Depth of Market data Securities Exchange Act of 1934 matched contracts, size of the product equally available to any market (‘‘Act’’) 1, and Rule 19b–4 thereunder,2 imbalance, and price of the affected participant that wishes to subscribe to notice is hereby given that on May 1, series.3 The Imbalance Message should it. 2012, NASDAQ OMX PHLX LLC enable PHLX Depth of Market (‘‘Phlx’’ or ‘‘Exchange’’) filed with the subscribers to participate effectively in 5 An opening ‘‘imbalance’’ occurs where there is Securities and Exchange Commission 4 unexecutable trading interest at a certain price. See the PHLX Opening Process by Exchange Rule 1017(l)(ii)(A). (‘‘SEC’’ or ‘‘Commission’’) the proposed providing them with information during 6 See Securities Exchange Act Release No. 63983 (February 25, 2011), 76 FR 12178 (March 4, 2011) 11 17 CFR 200.30–3(a)(12). 3 See Exchange Rule 1017(l)(vi)(A). (SR–NASDAQ–2011–032). 1 15 U.S.C. 78s(b)(1). 4 For a description of the Opening Process, see 7 15 U.S.C. 78f. 2 17 CFR 240.19b–4. Exchange Rule 1017(l). 8 15 U.S.C. 78f(b)(5).

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B. Self-Regulatory Organization’s Paper Comments collection packages requiring clearance Statement on Burden on Competition • Send paper comments in triplicate by the Office of Management and to Elizabeth M. Murphy, Secretary, Budget (OMB) in compliance with The Exchange does not believe that Public Law 104–13, the Paperwork the proposed rule change will impose Securities and Exchange Commission, Reduction Act of 1995, effective October any burden on competition not 100 F Street NE., Washington, DC 1, 1995. This notice includes revisions necessary or appropriate in furtherance 20549–1090. and one extension of OMB-approved of the purposes of the Act. All submissions should refer to File No. SR–Phlx–2012–60. This file number information collections. C. Self-Regulatory Organization’s should be included on the subject line SSA is soliciting comments on the Statement on Comments on the if email is used. To help the accuracy of the agency’s burden Proposed Rule Change Received From Commission process and review your estimate; the need for the information; Members, Participants, or Others comments more efficiently, please use its practical utility; ways to enhance its only one method. The Commission will Written comments were neither quality, utility, and clarity; and ways to post all comments on the Commission’s solicited nor received. minimize burden on respondents, Internet Web site (http://www.sec.gov/ including the use of automated III. Date of Effectiveness of the rules/sro.shtml). Copies of the collection techniques or other forms of Proposed Rule Change and Timing for submission, all subsequent information technology. Mail, email, or Commission Action amendments, all written statements fax your comments and with respect to the proposed rule Because the foregoing proposed rule change that are filed with the recommendations on the information change does not: (i) Significantly affect Commission, and all written collection(s) to the OMB Desk Officer the protection of investors or the public communications relating to the and SSA Reports Clearance Officer at interest; (ii) impose any significant proposed rule change between the the following addresses or fax numbers. burden on competition; and (iii) become Commission and any person, other than (OMB), Office of Management and operative for 30 days after the date of those that may be withheld from the Budget, Attn: Desk Officer for SSA, the filing, or such shorter time as the public in accordance with the Fax: 202–395–6974, Email address: Commission may designate, it has provisions of 5 U.S.C. 552, will be [email protected]. become effective pursuant to 19(b)(3)(A) available for Web site viewing and of the Act 9 and Rule 19b–4(f)(6) 10 printing in the Commission’s Public (SSA), Social Security Administration, thereunder. Reference Room, 100 F Street NE., DCRDP, Attn: Reports Clearance At any time within 60 days of the Washington, DC 20549, on official Director, 107 Altmeyer Building, 6401 filing of the proposed rule change, the business days between the hours of Security Blvd., Baltimore, MD 21235, Commission summarily may 10:00 a.m. and 3:00 p.m. Copies of such Fax: 410–966–2830, Email address: temporarily suspend such rule change if filing also will be available for [email protected]. it appears to the Commission that such inspection and copying at the principal I. The information collections below action is necessary or appropriate in the office of the Exchange. All comments are pending at SSA. SSA will submit received will be posted without change; public interest, for the protection of them to OMB within 60 days from the the Commission does not edit personal investors, or otherwise in furtherance of date of this notice. To be sure we identifying information from the purposes of the Act. If the consider your comments, we must Commission takes such action, the submissions. You should submit only receive them no later than July 16, 2012. Commission shall institute proceedings information that you wish to make Individuals can obtain copies of the to determine whether the proposed rule available publicly. All submissions collection instruments by writing to the should be approved or disapproved. should refer to File No. SR–Phlx–2012– 60 and should be submitted on or before above email address. IV. Solicitation of Comments June 7, 2012. 1. Disability Report–Adult—20 CFR Interested persons are invited to For the Commission, by the Division of 404.1512 and 416.912—0960–0579. submit written data, views, and Trading and Markets, pursuant to delegated State Disability Determination Services arguments concerning the foregoing, authority.11 (DDS) use the SSA–3368 and its including whether the proposed rule Kevin M. O’Neill, electronic versions to determine if adult change is consistent with the Act. Deputy Secretary. disability applicants’ impairments are Comments may be submitted by any of [FR Doc. 2012–11915 Filed 5–16–12; 8:45 am] severe and, if so, how the impairments the following methods: BILLING CODE 8011–01–P affect the applicants’ ability to work. This determination dictates whether the Electronic Comments DDSs and SSA will find the applicant • Use the Commission’s Internet SOCIAL SECURITY ADMINISTRATION to be disabled and entitled to comment form (http://www.sec.gov/ Supplement Security Income (SSI) rules/sro.shtml); or Agency Information Collection payments. The respondents are • Activities: Proposed Request and applicants for title II disability benefits Send an email to rule- Comment Request [email protected]. Please include File or title XVI SSI payments. No. SR–Phlx–2012–60 on the subject The Social Security Administration Type of Request: Revision of an OMB- line. (SSA) publishes a list of information approved information collection.

9 15 U.S.C. 78s(b)(3)(A). the Commission written notice of its intent to file Commission. The Commission notes that the 10 17 CFR 240.19b–4(f)(6). In addition, Rule 19b– the proposed rule change at least five business days Exchange has satisfied this requirement. 4(f)(6) requires a self-regulatory organization to give prior to the date of filing of the proposed rule 11 17 CFR 200.30–3(a)(12). change, or such shorter time as designated by the

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Average Number of Frequency of burden per Estimated Collection method respondents response response annual burden (minutes) (hours)

SSA–3368 (paper) ...... 29,072 1 60 29,072 Electronic Disability Collect System (EDCS) ...... 2,853,426 1 60 2,853,426 I3368 (Internet) ...... 421,226 1 90 631,839

Totals ...... 3,303,724 ...... 3,514,337

2. Social Security Number addition, the employee’s name and SSN a cost-free method for employers to Verification Services—20 CFR 401.45— must match SSA’s records for SSA to verify employee information either 0960–0660. Internal Revenue Service post earnings to the employee’s earnings through the Internet or via telephone. regulations require employers to record, which SSA maintains. SSA The respondents are employers who provide wage and tax data to SSA using offers the Social Security Number need to verify SSN data using SSA’s Form W–2 or its electronic equivalent. Verification Service (SSNVS), which records. As part of this process, the employer allows employers to verify the reported must furnish the employee’s name and names and SSNs of their employees Type of Request: Revision of an OMB- Social Security number (SSN). In match those in SSA’s records. SSNVS is approved information collection.

Average Estimated Collection method Number of Frequency of Number of burden per total respondents response responses response annual burden (minutes) (hours)

SSNVS ...... 200,000 60 (12,000,000) 5 1,000,000 SSNVS Telephone ...... 50,000 2 (100,000) 10 16,667

Totals ...... 250,000 ...... (12,100,000) ...... 1,016,667

3. Electronic Records Express (Third only authorized people access ERE, SSA representatives of disability applicants Parties)—20 CFR 404.1700–404.1715— requires third parties to complete a or recipients who want to use ERE to 0960–0767. Electronic Records Express unique registration process if they wish electronically access clients’ disability (ERE) is an online system that enables to use this system. This Information files online and submit information to medical providers and various third- Collection Request (ICRSs) includes the SSA. party representatives to download and third-party registration process; the Type of Request: Revision of an OMB- submit disability claimant information burden for submitting evidence to SSA approved information collection. electronically to SSA as part of the is part of other, various ICRs. The disability application process. To ensure respondents are third-party

Average Estimated Collection Number of Frequency of Number of burden per total annual method respondents response responses response burden (minutes) (hours)

ERE ...... 9,000 283 2,547,000 1 42,450

II. SSA submitted the information 1. Request for Withdrawal of applications for benefits complete Form collections below to OMB for clearance. Application—20 CFR 404.640—0960– SSA–521, or sign the completed form Your comments regarding the 0015. Form SSA–521 documents the for each request to withdraw. SSA uses information collections would be most information SSA needs to process the the information from Form SSA–521 to useful if OMB and SSA receive them withdrawal of an application for process the request for withdrawal. The within 30 days from the date of this benefits. A paper SSA–521 is the respondents are applicants for publication. To be sure we consider preferred instrument for executing a Retirement, Survivors, Disability, and your comments, we must receive them withdrawal request; however, any Health Insurance benefits. no later than June 18, 2012. Individuals written request for withdrawal signed can obtain copies of the OMB clearance by the claimant or a proper applicant on Type of Request: Revision of an OMB- packages by writing to the claimant’s behalf will suffice. approved information collection. [email protected]. Individuals who wish to withdraw their

Average Collection Number of Frequency of burden per Estimated method respondents response response annual burden (minutes) (hours)

SSA–521 ...... 39,000 1 5 3,250

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2. Testimony by Employees and the information, records, or testimony of an interest to provide the testimony; and Production of Records and Information agency employee in a legal proceeding (4) provide the date, time, and place for in Legal Proceedings—20 CFR 403.100– where the agency is not a party. The the testimony. Respondents are 403.155—0960–0619. Regulations at 20 request, which respondents submit in individuals or entities who request CFR 403.100–403.155 of the Code of writing to the Commissioner, must (1) testimony from SSA employees in Federal Regulations establish SSA’s fully set out the nature and relevance of connection with a legal proceeding. policies and procedures for an the sought testimony; (2) explain why individual, organization, or government the information is not available by other Type of Request: Extension of an entity to request official agency means; (3) explain why it is in SSA’s OMB-approved information collection.

Average Collection Number of Frequency of burden per Estimated method respondents response response annual burden (minutes) (hours)

20 CFR 403.100–403.155 ...... 100 1 60 100

Dated: May 11, 2012. • Frequency: On Occasion. FOR FURTHER INFORMATION CONTACT: Faye Lipsky, • Obligation To Respond: Required to Direct requests for additional Reports Clearance Director, Office of Obtain Benefits. information regarding the collection Regulations and Reports Clearance, Social • Title of Information Collection: listed in this notice to Nicholas Memos, Security Administration. Request for Advisory Opinion. PM/DDTC, SA–1, 12th Floor, [FR Doc. 2012–11917 Filed 5–16–12; 8:45 am] • OMB Control Number: 1405–0174. Directorate of Defense Trade Controls, • BILLING CODE 4191–02–P Type of Request: Extension of Bureau of Political-Military Affairs, U.S. Currently Approved Collection. Department of State, Washington, DC • Originating Office: Bureau of 20522–0112, who may be reached via DEPARTMENT OF STATE Political-Military Affairs, Directorate of phone at (202) 663–2829, or via email at Defense Trade Controls, PM/DDTC. [email protected]. [Public Notice 7889] • Form Number: DS–6001. SUPPLEMENTARY INFORMATION: • Respondents: Business and We are 60-Day Notice of Two Proposed Nonprofit Organizations. soliciting public comments to permit Directorate of Defense Trade Controls • the Department to: Estimated Number of Respondents: • Information Collections: ‘‘Request To 250. Evaluate whether the proposed Change End-User, End-Use, and/or • Estimated Number of Responses: collection of information is necessary Destination of Hardware’’ and 250. for the proper performance of our ‘‘Request for Advisory Opinion’’ • Average Hours per Response: functions. • 1 hour. Evaluate the accuracy of our ACTION: Notice of request for public • Total Estimated Burden: 250 hours. estimate of the burden of the proposed comments. • Frequency: On Occasion. collection, including the validity of the • Obligation to Respond: Voluntary. methodology and assumptions used. SUMMARY: The Department of State is DATES: The Department will accept • Enhance the quality, utility, and seeking Office of Management and clarity of the information to be Budget (OMB) approval for the comments from the public up to 60 days from May 17, 2012. collected. information collections described • ADDRESSES: Comments and questions Minimize the reporting burden on below. The purpose of this notice is to those who are to respond, including the allow 60 days for public comment in the should be directed to Nicholas Memos, Office of Defense Trade Controls Policy, use of automated collection techniques Federal Register preceding submission or other forms of technology. to OMB. We are conducting this process U.S. Department of State, who may be reached via the following methods: Abstract of proposed collection: The in accordance with the Paperwork • export, temporary import, temporary Reduction Act of 1995. Internet: Persons with access to the Internet may view and comment on this export and brokering of defense articles, • Title of Information Collection: notice by going to the Federal defense services and related technical Request To Change End-User, End-Use, regulations Web site at data are licensed by the Directorate of and/or Destination of Hardware. • www.regulations.gov. You can search for Defense Trade Controls in accordance OMB Control Number: 1405–0173. with the International Traffic in Arms • Type of Request: Extension of the document by selecting ‘‘Notice’’ under Document Type, entering the Regulations (22 CFR parts 120–130) and Currently Approved Collection. Section 38 of the Arms Export Control • Originating Office: Bureau of Public Notice number as the ‘‘Keyword Act. Those of the public who Political-Military Affairs, Directorate of or ID,’’ checking the ‘‘Open for manufacture or export defense articles, Defense Trade Controls, PM/DDTC. Comment’’ box, and then clicking • Form Number: DS–6004. ‘‘Search.’’ If necessary, use the ‘‘Narrow defense services, and related technical • Respondents: Business and by Agency’’ option on the Results page. data, or the brokering thereof, must Nonprofit Organizations. • Email: [email protected]. register with the Department of State. • Estimated Number of Respondents: • Mail: Nicholas Memos, SA–1, 12th Persons desiring to engage in brokering 2,700. Floor, Directorate of Defense Trade activities must submit an application or • Estimated Number of Responses: Controls, Bureau of Political-Military written request to conduct the 2,700. Affairs, U.S. Department of State, transaction to the Department to obtain • Average Hours per Response: Washington, DC 20522–0112. a decision whether it is in the interests 1 hour. You must include the information of U.S. foreign policy and national • Total Estimated Burden: 2,700 collection title in the subject line of security to approve the transaction. hours. your message/letter. Also, registered brokers must submit

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annual reports regarding all brokering a.m. and 5 p.m., Monday through ACTION: Notice of petition for exemption activity that was transacted, and Friday, except Federal holidays. received. registered manufacturers and exporter Privacy: We will post all comments must maintain records of defense trade we receive, without change, to http:// SUMMARY: This notice contains a activities for five years. www.regulations.gov, including any summary of a petition seeking relief Methodology: These forms/ personal information you provide. from specified requirements of 14 CFR. information collections may be sent to Using the search function of our docket The purpose of this notice is to improve the Directorate of Defense Trade Web site, anyone can find and read the the public’s awareness of, and Controls via the following methods: comments received into any of our participation in, this aspect of FAA’s mail or personal delivery. dockets, including the name of the regulatory activities. Neither publication of this notice nor the inclusion or Dated: May 14, 2012. individual sending the comment (or signing the comment for an association, omission of information in the summary Robert S. Kovac, business, labor union, etc.). You may is intended to affect the legal status of Managing Director of Defense Trade Controls, review DOT’s complete Privacy Act the petition or its final disposition. Bureau of Political-Military Affairs, U.S. Statement in the Federal Register DATES: Department of State. Comments on this petition must published on April 11, 2000 (65 FR identify the petition docket number and [FR Doc. 2012–11981 Filed 5–16–12; 8:45 am] 19477–78). must be received on or before June 6, BILLING CODE 4710–25–P Docket: To read background 2012. documents or comments received, go to ADDRESSES: You may send comments http://www.regulations.gov at any time identified by docket number FAA– DEPARTMENT OF TRANSPORTATION or to the Docket Management Facility in 2012–0290 using any of the following Room W12–140 of the West Building methods: Federal Aviation Administration Ground Floor at 1200 New Jersey • Government-wide rulemaking Web Avenue SE., Washington, DC, between 9 [Summary Notice No. PE–2012–17] site: Go to http://www.regulations.gov a.m. and 5 p.m., Monday through and follow the instructions for sending Petition for Exemption; Summary of Friday, except Federal holidays. Petition Received your comments digitally. FOR FURTHER INFORMATION CONTACT: • Mail: Send comments to the Docket AGENCY: Federal Aviation Kenna Sinclair, ANM–113, (425) 227– Management Facility; U.S. Department Administration (FAA), DOT. 1556, Federal Aviation Administration, of Transportation, 1200 New Jersey 1601 Lind Avenue SW., Renton, WA ACTION: Notice of petition for exemption Avenue SE., West Building Ground 98057–3356, or Frances Shaver, ARM– received. Floor, Room W12–140, Washington, DC 207, (202–267–4059), Office of 20590. SUMMARY: This notice contains a Rulemaking, Federal Aviation • Fax: Fax comments to the Docket summary of a petition seeking relief Administration, 800 Independence Management Facility at 202–493–2251. from specified requirements of 14 CFR. Avenue SW., Washington, DC 20591. • Hand Delivery: Bring comments to The purpose of this notice is to improve This notice is published pursuant to the Docket Management Facility in the public’s awareness of, and 14 CFR 11.85. Room W12–140 of the West Building participation in, this aspect of FAA’s Issued in Washington, DC, on May 14, Ground Floor at 1200 New Jersey regulatory activities. Neither publication 2012. Avenue SE., Washington, DC, between of this notice nor the inclusion or Lirio Liu, 9 a.m. and 5 p.m., Monday through omission of information in the summary Acting Director, Office of Rulemaking. Friday, except Federal holidays. is intended to affect the legal status of Privacy: We will post all comments PETITION FOR EXEMPTION the petition or its final disposition. we receive, without change, to http:// DATES: Comments on this petition must Docket No.: FAA–2012–0455 www.regulations.gov, including any identify the petition docket number and Petitioner: The Boeing Company personal information you provide. must be received on or before June 6, Section of 14 CFR Affected: Using the search function of our docket 2012. §§ 25.855(b), 25.855(h)(2), 25.857(e)(2), Web site, anyone can find and read the and 25.857(e)(3) comments received into any of our ADDRESSES: You may send comments Description of Relief Sought: The dockets, including the name of the identified by Docket Number FAA– petitioner requests relief from the design individual sending the comment (or 2012–0455 using any of the following and performance requirements signing the comment for an association, methods: regarding fire protection systems for the • business, labor union, etc.). You may Government-wide rulemaking Web lower lobe cargo compartments on the review the DOT’s complete Privacy Act site: Go to http://www.regulations.gov Boeing Model 747–400 large cargo Statement in the Federal Register and follow the instructions for sending freighters. your comments electronically. published on April 11, 2000 (65 FR [FR Doc. 2012–11987 Filed 5–16–12; 8:45 am] • Mail: Send comments to the Docket 19477–78). Management Facility; U.S. Department BILLING CODE 4910–13–P Docket: To read background of Transportation, 1200 New Jersey documents or comments received, go to http://www.regulations.gov at any time Avenue SE., West Building Ground DEPARTMENT OF TRANSPORTATION Floor, Room W12–140, Washington, DC or to the Docket Management Facility in 20590. Federal Aviation Administration Room W12–140 of the West Building • Fax: Fax comments to the Docket Ground Floor at 1200 New Jersey Management Facility at 202–493–2251. [Summary Notice No. PE–2012–16] Avenue SE., Washington, DC, between 9 • Hand Delivery: Bring comments to a.m. and 5 p.m., Monday through Petition for Exemption; Summary of Friday, except Federal holidays. the Docket Management Facility in Petition Received Room W12–140 of the West Building FOR FURTHER INFORMATION CONTACT: Ground Floor at 1200 New Jersey AGENCY: Federal Aviation Mark Forseth, ANM–113, (425) 227– Avenue SE., Washington, DC, between 9 Administration (FAA), DOT. 2796, Federal Aviation Administration,

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1601 Lind Avenue SW., Renton, WA • Fax: 1–202–493–2251. Avenue SE., Washington, DC 20590– 98057–3356, or Frances Shaver, (202) • Mail: Docket Management Facility; 0001. Telephone: 202–366–4325. Email: 267–4059, Office of Rulemaking (ARM– U.S. Department of Transportation, 1200 [email protected]. 207), Federal Aviation Administration, New Jersey Avenue SE., West Building, SUPPLEMENTARY INFORMATION: 800 Independence Avenue SW., Ground Floor, Room W12–140, 20590– Washington, DC 20591. 0001. Background This notice is published pursuant to • Hand Delivery or Courier: West The Commercial Motor Vehicle Safety 14 CFR 11.85. Building, Ground Floor, Room W12– Act of 1986 (CMVSA) (49 U.S.C. 31301 Issued in Washington, DC, on May 14, 140, 1200 New Jersey Avenue SE., et seq.) established the commercial 2012. Washington, DC between 9 a.m. and 5 driver’s license (CDL) program and Lirio Liu, p.m., e.t., Monday through Friday, directed the Federal Highway Administration (FHWA), FMCSA’s Acting Director, Office of Rulemaking. except Federal holidays. • Instructions: All submissions must predecessor agency, to establish Petition for Exemption include the Agency name and docket minimum qualifications for issuance of Docket No.: FAA–2012–0290. number. For detailed instructions on a CDL. After public notice and an Petitioner: Halliburton Energy submitting comments and additional opportunity for comment, the FHWA Services. information on the exemption process, established standards for the knowledge Section of 14 CFR Affected: § 25.807. see the Public Participation heading and skills which a CDL applicant must Description of Relief Sought: The below. Note that all comments received satisfy. In 1985, the FHWA published ‘‘Model petitioner requests relief from the will be posted without change to Curriculum for Training Tractor-Trailer requirement to have a standard-sized, http://www.regulations.gov, including Drivers.’’ The FHWA did not mandate Type III overwing exit on Gulfstream any personal information provided. driver training at that time. It believed Model GV–SP, G500, and G550 Please see the Privacy Act heading the cost of developing a comprehensive airplanes. below. • Docket: For access to the docket to driver-training program was too high in [FR Doc. 2012–11986 Filed 5–16–12; 8:45 am] read background documents or terms of agency resources. This was BILLING CODE 4910–13–P comments received, go to http:// especially so, FHWA believed, in light www.regulations.gov, and follow the of its reasonable expectation that the level of safety of entry level drivers DEPARTMENT OF TRANSPORTATION online instructions for accessing the dockets, or go to the street address listed would soon be elevated because (1) the deadline for States to adopt the new Federal Motor Carrier Safety above. mandatory CDL-licensing standards for Administration • Privacy Act: Anyone is able to search the electronic form of all driver knowledge and skills was still in [Docket No. FMCSA–2012–0129] comments received into any of our the future, and (2) many truck driving dockets by the name of the individual schools had updated their curricula in Agency Information Collection light of the new model curriculum submitting the comment (or signing the Activities; Extension of a Currently (‘‘Truck Safety: Information on Driver comment, if submitted on behalf of an Approved Collection; Training Training,’’ Report of the U.S. General association, business, labor union, etc.). Certification for Entry-Level Accounting Office, GAO/RCED–89–163, You may review the Department of Commercial Motor Vehicle Operators August 1989, pages 4 and 5). Transportation’s (DOT) complete In 1991, the Intermodal Surface AGENCY: Federal Motor Carrier Safety Privacy Act Statement for the Federal Transportation Efficiency Act of 1991 Administration (FMCSA), DOT. Docket Management System published (ISTEA) (Pub. L. 102–240, December 18, ACTION: Notice and request for in the Federal Register on January 17, 1991) directed the FHWA to comments. 2008 (73 FR 3316), or you may visit ‘‘commence a rulemaking proceeding on http://edocket.access.gpo.gov/2008/ the need to require training of all entry- SUMMARY: In accordance with the pdfE8–794.pdf. level drivers of commercial motor Paperwork Reduction Act of 1995, • Public Participation: The Federal vehicles (CMVs)’’ (Section 4007(a)(2)). FMCSA announces its plan to submit eRulemaking Portal is available 24 On June 21, 1993, the FHWA issued an the Information Collection Request (ICR) hours each day, 365 days each year. You advance notice of proposed rulemaking described below to the Office of can obtain electronic submission and entitled, ‘‘Commercial Motor Vehicles: Management and Budget (OMB) for its retrieval help and guidelines under the Training for All Entry Level Drivers’’ (58 review and approval, and invites public ‘‘help’’ section of the Federal FR 33874). The Agency also began a comment. The FMCSA has developed eRulemaking Portal Web site. If you study of the effectiveness of the driver an improved estimate of the number of want us to notify you that we received training currently being received by annual responses to this information your comments, please include a self- entry-level CMV drivers. The results of collection. The result is an increase in addressed, stamped envelope or the study were published in 1997 under the Agency’s estimate of the total annual postcard, or print the acknowledgement the title ‘‘Adequacy of Commercial burden hours of this collection. page that appears after submitting Motor Vehicle Driver Training.’’ The DATES: We must receive your comments comments online. Comments received study is available under FMCSA Docket on or before July 16, 2012. after the comment closing date will be 1997–2199 at the Federal eRulemaking ADDRESSES: You may submit comments included in the docket and will be Portal (www.regulations.gov) described identified by Federal Docket considered to the extent practicable. above. The study found that three Management System Number FMCSA– FOR FURTHER INFORMATION CONTACT: Mr. segments of the trucking industry were 2012–0129 using one of the following Thomas Yager, Chief, Driver and Carrier not receiving adequate entry-level methods: Operations Division, Office of Bus and training: heavy truck, motor coach, and • Federal eRulemaking Portal: http:// Truck Standards and Operations, school bus. www.regulations.gov. Follow the online Federal Motor Carrier Safety On August 15, 2003, FMCSA instructions for submitting comments. Administration, 1200 New Jersey published a notice of proposed

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rulemaking (NPRM) entitled, vehicles used in commerce to transport The exemptions will enable these ‘‘Minimum Training Requirements for passengers or property if the motor individuals to operate CMVs in Entry-Level Commercial Motor Vehicle vehicle—(a) has a gross combination interstate commerce. Operators’’ (68 FR 48863). The Agency weight rating of 11,794 kilograms or DATES: The exemptions are effective proposed mandatory training for more (26,001 pounds or more) inclusive May 17, 2012. The exemptions expire operators of CMVs on four topics: driver of a towed unit(s) with a gross vehicle on May 19, 2014. qualifications, hours-of-service of weight rating (GVWR) of more than FOR FURTHER INFORMATION CONTACT: drivers, driver wellness and whistle- 4,536 kilograms (10,000 pounds); or (b) Elaine M. Papp, Chief, Medical blower protection. The Agency believed has a GVWR of 11,794 or more Programs Division, (202) 366–4001, that knowledge of these areas would kilograms (26,001 pounds or more); or [email protected], FMCSA, Room provide the greatest benefit to the safety (c) is designed to transport 16 or more W64–224, Department of of CMV operations. On May 21, 2004, passengers, including the driver; or (d) Transportation, 1200 New Jersey FMCSA by final rule prohibited a motor is of any size and is used in the Avenue SE., Washington, DC 20590– carrier from allowing an entry-level transportation of hazardous materials as 0001. Office hours are from 8:30 a.m. to driver to operate a CMV until it received defined in 49 CFR § 383.5 (49 CFR 5 p.m., Monday through Friday, except a written certificate indicating that the 383.5). The definition of CMV found at Federal holidays. driver had received training in the four 49 CFR 390.5 of the FMCSRs is not SUPPLEMENTARY INFORMATION: subject areas (69 FR 2004). The rule applicable to this notice. (3) became effective on July 20, 2004. ‘‘Commercial Driver’s License (CDL) Electronic Access Training providers were required to Driver’’ means the operator of a CMV You may see all the comments online provide a certificate to each driver because such operators must possess a through the Federal Document trainee receiving the requisite training. valid commercial driver’s license (CDL) Management System (FDMS) at: http:// In 2005, the U.S. Court of Appeals for (Section 383.23(a)(2)). (4) ‘‘Entry-level www.regulations.gov. the District of Columbia Circuit held CDL Driver’’ means a driver with less Docket: For access to the docket to that FMCSA had failed to consider than one year of experience operating a read background documents or important aspects of an adequate entry- CMV with a CDL (49 CFR 380.502(b)). comments, go to http:// level training program. It remanded the Public Comments Invited: You are www.regulations.gov and/or Room 2004 driver-training rule to the Agency asked to comment on any aspect of this W12–140 on the ground level of the for further consideration. On December information collection, including: (1) West Building, 1200 New Jersey Avenue 26, 2007, FMCSA proposed revised Whether the proposed collection is SE., Washington, DC, between 9 a.m. minimum standards for the mandatory necessary for the FMCSA’s performance and 5 p.m., Monday through Friday, training of entry-level CDL drivers (72 of functions; (2) the accuracy of the except Federal holidays. FR 73226). The Agency has analyzed the estimated burden; (3) ways for the Privacy Act: Anyone may search the public comments received in response FMCSA to enhance the quality, electronic form of all comments to the notice, and is continuing to usefulness, and clarity of the collected received into any of DOT’s dockets by develop a final rule on this subject. information; and (4) ways that the the name of the individual submitting Title: Training Certification for Entry- burden could be minimized without the comment (or of the person signing Level Commercial Motor Vehicle reducing the quality of the collected the comment, if submitted on behalf of Operators information. The agency will summarize an association, business, labor union, or OMB Control Number: 2126–0028. or include your comments in the request other entity). You may review DOT’s Type of Request: Extension of a for OMB’s clearance of this information Privacy Act Statement for the Federal currently approved ICR. collection. Docket Management System (FDMS) Respondents: Entry-level CDL drivers. Issued on: May 10, 2012. published in the Federal Register on Estimated Number of Respondents: G. Kelly Leone, January 17, 2008 (73 FR 3316), or you 397,500. . may visit http://edocket.access.gpo.gov/ Estimated Time per Response: 10 Associate Administrator for Research and Information Technology. 2008/pdf/E8-785.pdf. minutes. Expiration Date: November 30, 2012. [FR Doc. 2012–11909 Filed 5–16–12; 8:45 am] Background Frequency of Response: On occasion. BILLING CODE 4910–EX–P On March 27, 2012, FMCSA Estimated Total Annual Burden: published a notice of receipt of Federal 66,250 hours. FMCSA estimates that an DEPARTMENT OF TRANSPORTATION diabetes exemption applications from entry-level driver requires 16 individuals and requested comments approximately 10 minutes to complete Federal Motor Carrier Safety from the public (77 FR 18302). The the tasks necessary to comply with the Administration public comment period closed on April regulation. Those tasks are: 26, 2012, and no comments were photocopying the training certificate, [FMCSA Docket No. FMCSA–2012–0043] received. giving the photocopy to the motor FMCSA has evaluated the eligibility Qualification of Drivers; Exemption carrier employer, and placing the of the 16 applicants and determined that Applications; Diabetes Mellitus original of the certificate in a personal granting the exemptions to these file. Therefore, the annual burden for all AGENCY: Federal Motor Carrier Safety individuals would achieve a level of entry-level drivers is 66,250 hours Administration (FMCSA), DOT. safety equivalent to or greater than the [397,500 drivers x 10/60 minutes to ACTION: Notice of final disposition. level that would be achieved by respond = 66,250 hours]. complying with the current regulation Definitions: (1) ‘‘Federal Motor Carrier SUMMARY: FMCSA announces its 49 CFR 391.41(b)(3). Safety Regulations’’ (FMCSRs) are parts decision to exempt 16 individuals from 350–399 of volume 49 of the Code of its rule prohibiting persons with Diabetes Mellitus and Driving Federal Regulations. (2) ‘‘Commercial insulin-treated diabetes mellitus (ITDM) Experience of the Applicants motor vehicle’’ (CMV) means a motor from operating commercial motor The Agency established the current vehicle or combination of motor vehicles (CMVs) in interstate commerce. requirement for diabetes in 1970

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because several risk studies indicated the exemption. The exemption allows In accordance with 49 U.S.C. 31136(e) that drivers with diabetes had a higher the applicants to operate CMVs in and 31315 each exemption will be valid rate of crash involvement than the interstate commerce. for two years unless revoked earlier by general population. The diabetes rule To evaluate the effect of these FMCSA. The exemption will be revoked provides that ‘‘A person is physically exemptions on safety, FMCSA if the following occurs: (1) The person qualified to drive a commercial motor considered medical reports about the fails to comply with the terms and vehicle if that person has no established applicants’ ITDM and vision, and conditions of the exemption; (2) the medical history or clinical diagnosis of reviewed the treating endocrinologists’ exemption has resulted in a lower level diabetes mellitus currently requiring medical opinion related to the ability of of safety than was maintained before it insulin for control’’ (49 CFR the driver to safely operate a CMV while was granted; or (3) continuation of the 391.41(b)(3)). using insulin. exemption would not be consistent with FMCSA established its diabetes Consequently, FMCSA finds that in the goals and objectives of 49 U.S.C. exemption program, based on the each case exempting these applicants 31136(e) and 31315. If the exemption is Agency’s July 2000 study entitled ‘‘A from the diabetes requirement in 49 CFR still effective at the end of the 2-year Report to Congress on the Feasibility of 391.41(b)(3) is likely to achieve a level period, the person may apply to FMCSA a Program to Qualify Individuals with of safety equal to that existing without for a renewal under procedures in effect Insulin-Treated Diabetes Mellitus to the exemption. at that time. Operate in Interstate Commerce as Conditions and Requirements Directed by the Transportation Act for Issued on: May 9, 2012. the 21st Century.’’ The report concluded The terms and conditions of the Larry W. Minor, that a safe and practicable protocol to exemption will be provided to the Associate Administrator for Policy. allow some drivers with ITDM to applicants in the exemption document [FR Doc. 2012–11911 Filed 5–16–12; 8:45 am] operate CMVs is feasible. The and they include the following: (1) That BILLING CODE 4910–EX–P September 3, 2003 (68 FR 52441), each individual submit a quarterly Federal Register notice in conjunction monitoring checklist completed by the with the November 8, 2005 (70 FR treating endocrinologist as well as an DEPARTMENT OF TRANSPORTATION 67777), Federal Register notice provides annual checklist with a comprehensive Federal Motor Carrier Safety the current protocol for allowing such medical evaluation; (2) that each Administration drivers to operate CMVs in interstate individual reports within 2 business commerce. days of occurrence, all episodes of [Docket No. FMCSA–1999–5748; FMCSA– These 16 applicants have had ITDM severe hypoglycemia, significant 1999–6480; FMCSA–2000–7006; FMCSA– over a range of 1 to 44 years. These complications, or inability to manage 2000–7363; FMCSA–2004–17195; FMCSA– applicants report no severe diabetes; also, any involvement in an 2005–21254; FMCSA–2006–23773; FMCSA– hypoglycemic reactions resulting in loss accident or any other adverse event in 2010–0050] of consciousness or seizure, requiring a CMV or personal vehicle, whether or Qualification of Drivers; Exemption the assistance of another person, or not it is related to an episode of Applications; Vision resulting in impaired cognitive function hypoglycemia; (3) that each individual that occurred without warning provide a copy of the ophthalmologist’s AGENCY: Federal Motor Carrier Safety symptoms, in the past 12 months and no or optometrist’s report to the medical Administration (FMCSA), DOT. examiner at the time of the annual recurrent (2 or more) severe ACTION: Notice of renewal of medical examination; and (4) that each hypoglycemic episodes in the past 5 exemptions; request for comments. years. In each case, an endocrinologist individual provide a copy of the annual verified that the driver has medical certification to the employer for SUMMARY: FMCSA announces its demonstrated a willingness to properly retention in the driver’s qualification decision to renew the exemptions from monitor and manage his/her diabetes file, or keep a copy in his/her driver’s the vision requirement in the Federal mellitus, received education related to qualification file if he/she is self- Motor Carrier Safety Regulations for 18 diabetes management, and is on a stable employed. The driver must also have a individuals. FMCSA has statutory insulin regimen. These drivers report no copy of the certification when driving, authority to exempt individuals from other disqualifying conditions, for presentation to a duly authorized the vision requirement if the including diabetes-related Federal, State, or local enforcement exemptions granted will not complications. Each meets the vision official. compromise safety. The Agency has requirement at 49 CFR 391.41(b)(10). Conclusion concluded that granting these The qualifications and medical exemption renewals will provide a level condition of each applicant were stated Based upon its evaluation of the 16 of safety that is equivalent to or greater and discussed in detail in the March 27, exemption applications, FMCSA than the level of safety maintained 2012, Federal Register notice and they exempts, Ross J. Brown (MI), Bert R. without the exemptions for these will not be repeated in this notice. Duncan, Jr. (UT), John L. Frank (ID), commercial motor vehicle (CMV) DeVere E. Hansen (UT), Grant C. drivers. Discussion of Comments Huftalin, (IA), Steven M. Janczak (WI), FMCSA did not receive any Aaron L. Kreiser (MD), Mark S. Madsen DATES: This decision is effective June 3, comments in this proceeding. (NE), James W. McClintock, III (AR), 2012. Comments must be received on or John W. Morrison (CA), Bruce V. before June 18, 2012. Basis for Exemption Determination Oppegard (MN), Edward L. Quinones, ADDRESSES: You may submit comments Under 49 U.S.C. 31136(e) and 31315, (IL), David L. Rice (ME), Wade D. Street bearing the Federal Docket Management FMCSA may grant an exemption from (MT), Charles M. Sweat (VA) and System (FDMS) numbers: FMCSA– the diabetes requirement in 49 CFR Donald E. Towne (CT) from the ITDM 1999–5748; FMCSA–1999–6480; 391.41(b)(3) if the exemption is likely to requirement in 49 CFR 391.41(b)(3), FMCSA–2000–7006; FMCSA–2000– achieve an equivalent or greater level of subject to the conditions listed under 7363; FMCSA–2004–17195; FMCSA– safety than would be achieved without ‘‘Conditions and Requirements’’ above. 2005–21254; FMCSA–2006–23773;

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FMCSA–2010–0050, using any of the SUPPLEMENTARY INFORMATION: exemption will be rescinded if: (1) the following methods: person fails to comply with the terms Background • Federal eRulemaking Portal: Go to and conditions of the exemption; (2) the http://www.regulations.gov. Follow the Under 49 U.S.C. 31136(e) and 31315, exemption has resulted in a lower level on-line instructions for submitting FMCSA may renew an exemption from of safety than was maintained before it comments. the vision requirements in 49 CFR was granted; or (3) continuation of the • Mail: Docket Management Facility; 391.41(b)(10), which applies to drivers exemption would not be consistent with U.S. Department of Transportation, 1200 of CMVs in interstate commerce, for a the goals and objectives of 49 U.S.C. New Jersey Avenue SE., West Building two-year period if it finds ‘‘such 31136(e) and 31315. exemption would likely achieve a level Ground Floor, Room W12–140, Basis for Renewing Exemptions Washington, DC 20590–0001. of safety that is equivalent to or greater • Hand Delivery or Courier: West than the level that would be achieved Under 49 U.S.C. 31315(b)(1), an Building Ground Floor, Room W12–140, absent such exemption.’’ The exemption may be granted for no longer 1200 New Jersey Avenue SE., procedures for requesting an exemption than two years from its approval date Washington, DC, between 9 a.m. and (including renewals) are set out in 49 and may be renewed upon application 5 p.m., Monday through Friday, except CFR part 381. for additional two year periods. In accordance with 49 U.S.C. 31136(e) and Federal holidays. Exemption Decision • Fax: 1–202–493–2251. 31315, each of the 18 applicants has Instructions: Each submission must This notice addresses 18 individuals satisfied the entry conditions for include the Agency name and the who have requested renewal of their obtaining an exemption from the vision docket number for this notice. Note that exemptions in accordance with FMCSA requirements (64 FR 27027; 64 FR DOT posts all comments received procedures. FMCSA has evaluated these 51568; 64 FR 68195; 65 FR 20245; 65 FR without change to http:// 18 applications for renewal on their 20251; 65 FR 45817; 65 FR 57230; 65 FR www.regulations.gov, including any merits and decided to extend each 77066; 66 FR 63289; 67 FR 17102; 67 FR personal information included in a exemption for a renewable two-year 38311; 68 FR 1654; 69 FR 8260; 69 FR comment. Please see the Privacy Act period. They are: 17263; 69 FR 17267; 69 FR 26921; 69 FR heading below. Dean R. Allen (OR) 31447; 70 FR 7545; 70 FR 30999; 70 FR Docket: For access to the docket to James C. Askin (FL) 46567; 71 FR 6826; 71 FR 16410; 71 FR read background documents or Ernie E. Black (NC) 16902; 71 FR 27033; 72 FR 40359; 73 FR 11989; 73 FR 28186; 75 FR 14656; 75 comments, go to http:// Gary O. Brady (WV) FR19674; 75 FR 27623; 75 FR 28682). www.regulations.gov at any time or Stephen H. Goldcamp (OH) Each of these 18 applicants has Room W12–140 on the ground level of Hazel L. Hopkins, Jr. (MD) requested renewal of the exemption and the West Building, 1200 New Jersey Wai F. King (IL) has submitted evidence showing that Avenue SE., Washington, DC, between Dennis E. Krone (IL) the vision in the better eye continues to 9 a.m. and 5 p.m., Monday through Richard J. McKenzie, Jr. (MD) Christopher J. Meerten (OR) meet the requirement specified at 49 Friday, except Federal holidays. The Craig W. Miller, (MO) CFR 391.41(b)(10) and that the vision Federal Docket Management System Robert J. Mohorter (NY) impairment is stable. In addition, a (FDMS) is available 24 hours each day, James A.Mohr (MT) review of each record of safety while 365 days each year. If you want Tommy L. Ray, Jr. (AL) driving with the respective vision acknowledgment that we received your George S. Rayson (OH) deficiencies over the past two years comments, please include a self- Kevin L. Routin (KY) indicates each applicant continues to addressed, stamped envelope or Lane L. Savoie (LA) meet the vision exemption postcard or print the acknowledgement Raul R. Torres (CA) requirements. These factors provide an page that appears after submitting The exemptions are extended subject adequate basis for predicting each comments on-line. to the following conditions: (1) That driver’s ability to continue to drive Privacy Act: Anyone may search the each individual has a physical safely in interstate commerce. electronic form of all comments examination every year (a) by an Therefore, FMCSA concludes that received into any of our dockets by the ophthalmologist or optometrist who extending the exemption for each name of the individual submitting the attests that the vision in the better eye renewal applicant for a period of two comment (or of the person signing the continues to meet the requirements in years is likely to achieve a level of safety comment, if submitted on behalf of an 49 CFR 391.41(b)(10), and (b) by a equal to that existing without the association, business, labor union, etc.). medical examiner who attests that the exemption. You may review DOT’s Privacy Act individual is otherwise physically Statement for the FDMS published in qualified under 49 CFR 391.41; (2) that Request for Comments the Federal Register on January 17, each individual provides a copy of the FMCSA will review comments 2008 (73 FR 3316), or you may visit ophthalmologist’s or optometrist’s received at any time concerning a http://edocket.access.gpo.gov/2008/pdf/ report to the medical examiner at the particular driver’s safety record and E8–785.pdf. time of the annual medical examination; determine if the continuation of the FOR FURTHER INFORMATION CONTACT: and (3) that each individual provide a exemption is consistent with the Elaine M. Papp, Chief, Medical copy of the annual medical certification requirements at 49 U.S.C. 31136(e) and Programs Division, 202–366–4001, to the employer for retention in the 31315. However, FMCSA requests that [email protected], FMCSA, driver’s qualification file and retains a interested parties with specific data Department of Transportation, 1200 copy of the certification on his/her concerning the safety records of these New Jersey Avenue SE., Room W64– person while driving for presentation to drivers submit comments by June 18, 224, Washington, DC 20590–0001. a duly authorized Federal, State, or local 2012. Office hours are from 8:30 a.m. to 5 p.m. enforcement official. Each exemption FMCSA believes that the Monday through Friday, except Federal will be valid for two years unless requirements for a renewal of an holidays. rescinded earlier by FMCSA. The exemption under 49 U.S.C. 31136(e) and

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31315 can be satisfied by initially has determined that certain model year seats, 3 labels were outside of the granting the renewal and then 2011 Toyota Sienna multipurpose specifications of FMVSS No. 225. All 3 requesting and evaluating, if needed, passenger vehicles (MPV) manufactured of those labels were measured at +1 mm subsequent comments submitted by between January 3, 2011 and February beyond the specification, or 26 mm from interested parties. As indicated above, 11, 2011, do not fully comply with the centerline.’’ the Agency previously published paragraph S9.5(a)(3) of Federal Motor Summary of Toyota’s Analysis and notices of final disposition announcing Vehicle Safety Standard (FMVSS) No. Arguments its decision to exempt these 18 225, Child restraint anchorage systems. individuals from the vision requirement Toyota filed an appropriate report dated Toyota stated its belief that although in 49 CFR 391.41(b)(10). The final March 17, 2011, pursuant to 49 CFR Part the lower child anchorage labels are decision to grant an exemption to each 573 Defect and Noncompliance outside the specified limits of this of these individuals was made on the Responsibility and Reports. requirement that the noncompliance is merits of each case and made only after Pursuant to 49 U.S.C. 30118(d) and inconsequential to motor vehicle safety careful consideration of the comments 30120(h) and the rule implementing for the following reasons: received to its notices of applications. those provisions at 49 CFR Part 556, (1) The measured deviations are very The notices of applications stated in Toyota has petitioned for an exemption minor, and such a slight deviation is not detail the qualifications, experience, from the notification and remedy noticeable to consumers and would not and medical condition of each applicant requirements of 49 U.S.C. Chapter 301 impair a consumer’s ability to locate the for an exemption from the vision on the basis that this noncompliance is lower anchorages. requirements. That information is inconsequential to motor vehicle safety. (2) Paragraph S9.1 of FMVSS No. 225 available by consulting the above cited Notice of receipt of the petition was requires that the length of the straight Federal Register publications. published, with a 30-day public portion of the lower anchorage bar be a Interested parties or organizations comment period, on June 16, 2011 in minimum of 25 mm. In the affected possessing information that would the Federal Register (76 FR 35271). No vehicles the length is 30 mm; the total otherwise show that any, or all, of these comments were received. To view the length including the curved portions is drivers are not currently achieving the petition and all supporting documents 54 mm. As a result, even with greater statutory level of safety should log onto the Federal Docket deviations than noted above in label immediately notify FMCSA. The Management System (FDMS) Web site location, some part of the label would Agency will evaluate any adverse at: http://www.regulations.gov/. Then be over some part of the bar, making the evidence submitted and, if safety is follow the online search instructions to bar easy to locate. locate docket number ‘‘NHTSA–2011– (3) The regulatory history of the being compromised or if continuation of ± the exemption would not be consistent 0058.’’ provision allowing a 25 mm lateral For further information on this with the goals and objectives of 49 tolerance for the location of the center decision contact Mr. Ed Chan, Office of U.S.C. 31136(e) and 31315, FMCSA will of the circular label further supports the Vehicle Safety Compliance, the National take immediate steps to revoke the argument that this noncompliance has Highway Traffic Safety Administration exemption of a driver. no adverse safety consequences. As (NHTSA), telephone (202) 493–0335, originally adopted, FMVSS No. 225 Issued on: May 9, 2012. facsimile (202) 366–7002. would have limited the lateral tolerance Larry W. Minor, Vehicles involved: Affected are to ±12 mm. In response to a petition for Associate Administrator for Policy. approximately 9,122 model year 2011 reconsideration from vehicle [FR Doc. 2012–11912 Filed 5–16–12; 8:45 am] Toyota Sienna MPV’s that were manufacturers concerned that such a BILLING CODE 4910–EX–P manufactured between January 3, 2011 low tolerance would be difficult to meet and February 11, 2011. due to process limitations and seat Noncompliance: Toyota explains that design features, NHTSA amended the DEPARTMENT OF TRANSPORTATION the noncompliance is that the label standard to allow the current ±25 mm identifying the location of the lower tolerance. 69 Fed Reg. 48818 (August National Highway Traffic Safety child restraint anchorages in some of the 11, 2004). In doing so, The agency Administration second row seats of the affected vehicles stated: are located slightly outside the limits as [Docket No. NHTSA–2011–0058; Notice 3] stated within the requirements of ‘‘* * * Moreover, the agency believes that increasing the tolerance to 25 mm will not Toyota Motor Corporation, Inc., Grant paragraph S9.5(a)(3) of FMVSS No. 225. significantly affect the consumers’ ability to of Petition for Decision of Specifically, Toyota also explains that find the LATCH anchorages. While anchor Inconsequential Noncompliance ‘‘the potential deviation of the label bars are permitted to be as short as 25 mm location outside the requirement is very in the straight portion of the bar, most are AGENCY: National Highway Traffic small. Toyota observed that in a detailed considerably longer. Even if a 25 mm bar Safety Administration, DOT. survey of a randomly selected subset were used, with a 25 mm tolerance from the center of the bar, the circle will be, at ACTION: Grant of Petition. involving 18 of these vehicles in which it found a deviation, the mean deviation farthest, tangent to a longitudinal vertical plane tangent to the side of the anchorage SUMMARY: Toyota Motor North America, was approximately +1.4 mm (i.e. 26.4 bar. If a person were to probe the seat bight Inc., on behalf of Toyota Motor mm from the centerline); the maximum in the area directly under the marking circle, Corporation,1 and Toyota deviation observed was +2.5 mm (i.e. his or her finger would easily contact the bar. Manufacturing, Indiana, Inc.2 27.5 mm from the centerline); and the For bars that are greater than 25 mm in (collectively referred to as ‘‘Toyota’’), standard deviation was only 0.5 mm. length, with a 25 mm tolerance a portion of While a survey carried out by the seat the marking circle will always be over some 1 Toyota Motor Corporation is a Japanese supplier also supports Toyota’s part of the bar. In either situation, marking the circle with a 25 mm tolerance will corporation that manufacturers and imports motor assertions that the potential deviation of vehicles. adequately provide a visual reminder to 2 Toyota Manufacturing, Indiana, Inc., is an the label location from the specified consumers that the LATCH system is present Indiana corporation that manufactures motor requirements is very small. In the and will help users locate and use the bars. vehicles. supplier’s survey of 240 labels on 120 Adopting the 25 mm tolerance will also

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harmonize FMVSS No. 225 with the for the label identifying the location of defect or noncompliance. Therefore, this comparable Transport Canada requirement.’’ the lower child restraint anchorage is to decision only applies to the vehicles (4) The seat design is such that only assure that the installer of a child that Toyota no longer controlled at the one label at a seating position can be restraint system is readily able to locate time that it determined that a noncompliant. As the seat cover is the appropriate lower child restraint noncompliance existed in the subject constructed, the labels are secured to anchorages. vehicles. the fabric a specified distance apart that NHTSA’s Analysis of Toyota’s Authority: (49 U.S.C. 30118, 30120: reflects the location of each pair of Reasoning delegations of authority at CFR 1.50 and anchorages, and the labels are designed 501.8) to be within the lateral tolerance of the After review of the subject petition NHTSA agrees with Toyota that the Issued on: May 10, 2012. standard. Claude H. Harris, (5) Information provided in the location of the subject lower child Director, Office of Vehicle Safety Compliance. vehicle owner’s manual further reduces restraint anchorage is in-line with the any possibility of confusion when nonconforming location of the lower [FR Doc. 2012–11948 Filed 5–16–12; 8:45 am] child restraint anchorage label, and the installing a child restraint. The BILLING CODE 4910–59–P Owner’s manual provided with the instructions clearly advise the installer vehicles includes a description of the to recline the second row seat and location of the anchorages in sufficient DEPARTMENT OF TRANSPORTATION widen the gap between the seat cushion detail to allow the person installing a and the seatback to expose the lower child seat to readily locate the Pipeline and Hazardous Materials anchorages. anchorage. Safety Administration (6) The label locations are correct for the LATCH anchorage system located at NHTSA Conclusions Actions on Special Permit Applications 3 the third row center seating position. NHTSA agrees with Toyota’s (7) There have been no customer assessment that while the location of the AGENCY: Pipeline and Hazardous complaints, injuries, or accidents subject lower child restraint anchorage Materials Safety Administration related to the deviation of the child label is outside of the allowable (PHMSA), DOT. restraint label location being slightly tolerance relative to the location of the ACTION: Notice of actions on Special outside the limits of the requirement. anchorage that this would not prevent Permit Applications. In addition, Toyota stated that the the installer of a child restraint system model year 2011 Sienna is sold by from being readily able to locate the SUMMARY: In accordance with the Toyota in both the United States and lower child restraint anchorage. procedures governing the application Canada and the subject noncompliance for, and the processing of, special was reported to both NHTSA and Decision permits from the Department of Transport Canada at the same time. (In In consideration of the foregoing, Transportation’s Hazardous Material Canada, the applicable standard is NHTSA has decided that Toyota has Regulations (49 CFR part 107, subpart CMVSS 210.2; it contains the same met its burden of persuasion that the B), notice is hereby given of the actions requirements as FMVSS No. 225). FMVSS No. 225 noncompliance in the on special permits applications in Transport Canada responded on March vehicles identified in Toyota’s February to April 2012. The mode of 23, indicating it concurs that ‘‘there is Noncompliance Information Report is transportation involved are identified by no real or implied degradation to motor inconsequential to motor vehicle safety. a number in the ‘‘Nature of vehicle safety,’’ and that no further Accordingly, Toyota’s petition is Application’’ portion of the table below action in Canada will be required. granted and the petitioner is exempted as follows: 1—Motor vehicle, 2—Rail In summation, Toyota believes that from the obligation of providing freight, 3—Cargo vessel, 4—Cargo the described noncompliance of the notification of, and a remedy for, that aircraft only, 5—Passenger-carrying subject vehicles is inconsequential to noncompliance under 49 U.S.C. 30118 aircraft. Application numbers prefixed motor vehicle safety, and that its and 30120. by the letters EE represent applications petition, to exempt from providing NHTSA notes that the statutory for Emergency Special Permits. It recall notification of noncompliance as provisions (49 U.S.C. 30118(d) and should be noted that some of the required by 49 U.S.C. 30118 and 30120(h)) that permit manufacturers to sections cited were those in effect at the remedying the recall noncompliance as file petitions for a determination of time certain special permits were required by 49 U.S.C. 30120 should be inconsequentiality allow NHTSA to issued. granted. exempt manufacturers only from the duties found in sections 30118 and Dated: Issued in Washington, DC, on May NHTSA Decision 30120, respectively, to notify owners, 8, 2012. Requirement Background: The purchasers, and dealers of a defect or Donald Burger purpose for the locational requirements noncompliance and to remedy the Chief, Special Permits and Approvals Branch.

S.P. No. Applicant Regulation(s) Nature of special permit thereof

Modification Special Permit Granted

8826–M ...... Phoenix Air Group, Inc. 49 CFR 172.101; 172.204(c) To modify the special to reflect the current statutes and regu- Cartersville, GA. (3); 173.27; 175.30(a)(1); lations changes. 175.320(b).

3 Toyota indicated that this LATCH anchorage is not required by the standard, but was voluntarily installed by Toyota.

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S.P. No. Applicant Regulation(s) Nature of special permit thereof

14909–M ...... Lake Clark Air, Inc. Port 49 CFR 173.304(f) ...... To reissue the special permit originally issued on an emer- Alsworth, AK. gency basis authorizing the transportation in commerce of compressed oxygen without rigid outer packaging when no other means of transportation exist. 10656–M ...... Conference of Radiation Con- 49 CFR 172.203(d); Part 172, To modify the special permit add 49 CFR Part 172 Subpart I trol Program Directors, Inc. Subparts C, D, E, F, G. as it pertains to security plans to the list of regulations ex- Frankfort, KY. empted in paragraph 4. 11406–M ...... Conference of Radiation Con- 49 CFR Part 172, Subparts C, To modify the special permit add 49 CFR Part 172 Subpart I trol Program Directors, Inc. D, E, F, G, H; Part 173, as it pertains to security plans to the list of regulations ex- Frankfort, KY. Subparts B, I; 173.22(a)(1); empted in paragraph 4. Part 174, Subpart K; 177.842. 11670–M ...... Schlumberger Oilfield UK Plc 49 CFR 178.36 ...... To modify the exemption to authorize the use of a newly de- Dyce, Aberdeen Scotland, signed non-DOT specification oil well sampling cylinder for Ab. the transportation of Division 2.1 materials. 14193–M ...... Honeywell International, Inc. 49 CFR 173.313 ...... To reissue the exemption originally issued on an emergency Morristown, NJ. basis for the transportation of non-DOT specification IMO Type 5 portable tanks, mounted in an ISO frame, con- taining certain Division 2.2 and 2.3 materials. 10646–M ...... Schlumberger Technologies 49 CFR 173.302 ...... To modify the special permit to authorize an additional mate- Corporation Sugar Land, TX. rial in the construction of non-DOT specification cylinders. 14457–M ...... Amtrol Alfa Metalomecanica 49 CFR 173.304a(a)(1) ...... To modify the special permit to extend the external visual in- SA Portugal. spection to every five (5) years. 14808–M ...... Amtrol, Inc. West Warwick, RI 49 CFR 178.51(b), (f)(1) and To modify the special permit to authorize a longer time be- (2) and (g). tween requalification testing. 14940–M ...... Crown Aerosol Packaging 49 CFR 173.306 ...... To modify the special permit to authorize rail freight and Philadelphia, PA. cargo vessel as additional modes of transportation. 13381–M ...... Carleton Technologies, Pres- 49 CFR 173.302(a)(1), To modify the special permit to authorize an extended testing sure Technology Division 173.304(a), 175.3 and time period for cylinders which are past their retest date but Westminster, MD. 180.205. are not empty. 14616–M ...... Chlorine Service Company 49 CFR 178.245–1(a) ...... To modify the special permit to correct pressure ranges to Kingwood, TX. bring it in line with other special permits issued. 11215–M ...... Orbital Sciences Corporation 49 CFR Part 172, Subparts C, To modify the special permit to add a Class 9 material. Mojave, CA. D; 172.101, Special Provi- sion 109.

New Special Permit Granted

14951–N ...... Lincoln Composites Lincoln, 49 CFR 173.302a ...... To authorize the manufacture, marking, sale and use of a NE. non-DOT specification fully wrapped fiber reinforced com- posite gas cylinders for the transportation of certain com- pressed gases. (modes 1, 2, 3) 15458–N ...... Southern States LLC ...... 49 CFR 49 CFR Parts 171– To authorize the transportation in commerce of specially de- 181; 49 CFR 172.301(c); signed non-DOT specification cylinders containing com- and 173.304. pressed sulfur hexafluoride. (modes 1, 2, 3, 4) 15451–N ...... NK CO., LTD Gangseo-Gu, 49 CFR 180.209(a) and (b) .... To authorize the transportation in commerce of certain DOT Busan. 3AA, 3AAX and 3T cylinders in Multiple Element Gas Con- tainers that have been retested every ten (10) years in- stead of every five (5) years by acoustic emission and ul- trasonic examination (AE/UE) in place of the internal visual inspection and the hydrostatic retest required by § 180.205. (modes 1, 2, 3) 15452–N ...... BE Aerospace Lenexa, KS ..... 49 CFR 173.302(f)(2)(i) ...... To authorize the transportation in commerce of certain DOT Specification 39 cylinders containing oxygen that have their pressure relief devices set to an alternative burst at pres- sure range. (modes 4, 5) 15516–N ...... Moog Inc. East Aurora, NY ..... 49 CFR Part 172, Subpart C .. To authorize the transportation in commerce of certain waste hazardous materials between Moog plants without shipping paper documentation for less than one half mile by private motor vehicle. (mode 1) 15517–N ...... Mountain West Helicopters, 49 CFR 172.101 Column (9B), To authorize the transportation in commerce of certain haz- LLC Alpine, UT. 172.204(c)(3), 173.27(b)(2), ardous materials by external load in remote areas of the 175.30(a)(1), 172.200, U.S. without being subject to hazard communication re- 172.300 and 172.400. quirements and quantity limitations where no other means of transportation is available. (mode 4) 15507–N ...... Yiwu Jinyu Machinery Factory 49 CFR 173.304(d) ...... To authorize the manufacture, marking, sale and use of a Jiangwan Town, Yiwu City. non-refillable, non-DOT specification inside metal container similar to a DOT 2Q for the transportation in commerce of certain Division 2.1 and 2.2 gases. (modes 1, 2, 3, 4) 15509–N ...... The Virginia Commercial 49 CFR 173.301 and To authorize the transportation in commerce of Helium in a Space Flight Authority Nor- 173.302a. non-DOT specification packaging for a short distance by folk, VA. motor vehicle. (mode 1)

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S.P. No. Applicant Regulation(s) Nature of special permit thereof

15483–N ...... United Space Alliance Hous- 49 CFR 173.302a ...... To authorize the transportation in commerce of certain Divi- ton, TX. sion 2.2 compressed gases in non-DOT specification cyl- inders to support the International Space Station Human Research Facility Gas Delivery System. (modes 1, 2, 3, 4, 5) 15541–N ...... T.L. Forest Products, Inc., dba 49 CFR 49 CFR Parts To authorize the transportation in commerce of certain haz- Timberland Logging Ash- 172.101, Column(9b), ardous materials by cargo aircraft including by external land, OR. 172.204(c)(3), 173.27(b)(2), load in remote areas without being subject to hazard com- 175.30(a)(1), 172.200, munication requirements and quantity limitations where no 172.300, and 172.400. other means of transportation is available. (mode 4) 15532–N ...... SET Environmental Inc. 49 CFR 173.244 ...... To authorize the one-time, one-way transportation in com- Wheeling, IL. merce of one irregularly shaped sodium dispersion vessels in alternative packaging. (mode 1) 15536–N ...... WavesinSolids LLC State Col- 49 CFR 173.302 and 180.209 To authorize the transportation in commerce of certain cyl- lege, PA. inders which have been alternatively ultrasonically retested for use in transporting Division 2.1, 2,2 and 2.3 materials. (modes 1, 2, 3, 4, 5) 15537–N ...... Alaska Pacific Powder Com- 49 CFR 172.101 Column (9B) To authorize the transportation in commerce of certain Class pany Watkins, CO. 1 explosive materials which are forbidden for transportation by air, to be transported by cargo aircraft within the State of Alaska when other means of transportation are impracti- cable or not available. (mode 4) 15556–N ...... Winco Inc. Aurora, OR ...... 49 CFR 49 CFR Table To authorize the transportation in commerce of certain haz- 172.101, Column (9B), ardous materials by 14 CFR Part 133 Rotorcraft External 172.204(c)(3), 173.27(b)(2) Load Operations transporting hazardous materials attached and 175.30(a)(1) 172.200 to or suspended from an aircraft, in remote areas of the and 172.301(c) and 175.75. U.S. only, without being subject to hazard communication requirements, quantity limitations and certain loading and stowage requirements. (mode 4) 15560–N ...... San Joaquin Helicopters Dela- 49 CFR 172.101 Column (9B), To authorize the transportation in commerce of certain haz- no, CA. 172.204(c)(3), 173.27(b)(2), ardous materials by Part 133 Rotorcraft External Load Op- 175.30(a)(1), 172.200, erations, attached to or suspended from an aircraft, in re- 172.300, 172.400, mote areas of the U.S. without meeting certain hazard 173.302(f)(3) and 175.75. communication and stowage requirements. (mode 4) 15535–N ...... PM HELI–OPS, INC CEN- 49 CFR 172.101 Column (9B), To authorize the transportation in commerce of certain forbid- TRAL POINT, OR. 172.204(c)(3), 173.27(b)(2) den explosives in sling load operations in remote areas of and 175.30(a)(1). the U.S. without being subject to hazard communication re- quirements, quantity limitations and certain loading and stowage requirements. (mode 4) 15233–N ...... ExpressJet Airlines, Inc. Hous- 49 CFR 173.309, 172.301(c) .. To authorize the transportation in commerce of certain non- ton, TX. DOT specification and DOT–4DA and 4DS specification cylinders, used as fire suppression systems in aircraft to be shipped, as fire extinguishers. (modes 1, 2, 3, 4, 5)

Emergency Special Permit Granted

15118–M ...... Mystery Creek Resources Inc. 49 CFR 172.101 Column (9B) To add nitric acid to the table in paragraph 6 and also to au- McGrath, AK. thorize transportation from 3 additional airports. (mode 4) 15418–N ...... Southwest Airlines Dallas, TX 49 CFR 172.301(c); To authorize the transportation in commerce of life-saving ap- 173.219(b)(1). pliances containing a compressed gas cylinder that is filled in excess of its marked service pressure. (modes 1, 4, 5) 15467–N ...... Dena’ina Air Taxi LLC Anchor- 49 CFR 172.101 Column (9B) To authorize the transportation in commerce of certain Class age, AK. 1 explosive materials which are forbidden for transportation by air, to be transported by cargo aircraft within the State of Alaska when other means of transportation are impracti- cable or not available. (mode 4) 15540–N ...... Andrew Airways, Inc. Kodiak, 49 CFR 175.310(c) ...... To authorize the transportation in commerce of certain non- AK. DOT specification bulk packages containing Class 3 mate- rial by cargo aircraft where no other means of transpor- tation is practicable. (mode 4) 15551–N ...... Zapata Incorporated Charlotte, 49 CFR 173.21(e) ...... To authorize the transportation in commerce of a Division 4.1, NC. Packing Group II material by highway, that has the poten- tial to react during transportation. (mode 1) 15584–N ...... Pacific Bio-Material Manage- 49 CFR 173.196, To authorize the transportation in commerce human and ani- ment, Inc. d/b/a Pacific Sci- 173.197(d)(3)(ii). mal tissue samples in non-specification packaging. (mode entific Transport Fresno, CA. 1) 15562–N ...... Crowley Petroleum Distribu- 49 CFR 172.101 Hazardous To authorize the transportation in commerce of propane by tion, Inc. Anchorage, AK. Materials Table Column (9B). cargo only aircraft in packages that exceed the quantity limitation where no other means of transportation is avail- able. (mode 4)

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S.P. No. Applicant Regulation(s) Nature of special permit thereof

Modification Special Permit Withdrawn

13336–M ...... Renaissance Industries, Inc. 49 CFR 173.302(a)(1); To modify the special permit to authorize additional Division Sharpsville Operations M– 173.304; 175.3. 2.2 gases. 1102 Sharpsville, PA. 9168–M ...... All-Pak Dangerous Goods, a 49 CFR Part 172; Subpart E; To modify the special permit to authorize an additional mode Division of Berlin Packaging 173.118; 173.244; 173.345; of transportation (cargo vessel.) (Former Grantee All-Pak, 173.346; 173.359; 173.370; Inc.) Bridgeville, PA. 173.377; 175.3; 175.33; 172.504; 173.3.

New Special Permit Withdrawn

15469–N ...... B.J. Alan Company, Youngs- 49 CFR 173.62 ...... To authorize the transportation in commerce of certain fire- town, OH. works in large packagings. (mode 1)

Emergency Special Permit Withdrawn

15053–N ...... Department of Defense Scott 49 CFR 173.302 and 173.304 To authorize the transportation in commerce of certain Divi- Air Force Base, IL. sion 2.1 and 2.2 gases in non-DOT specification pack- agings. (modes 1, 4)

Denied

12561–M ...... Request by Rhodia, Inc. Cranbury, NJ February 15, 2012. To modify the special permit by amending Paragraph 7 to reflect ex- isting AAR and 49 CFR construction specifications for DOT 111 tank cars. 14872–N ...... Request by Arkema, Inc. King of Prussia, PA March 05, 2012. To authorize the transportation in commerce of methyl mercaptan in certain DOT 105J300W tank cars. 15317–N ...... Request by The Dow Chemical Company PHILADELPHIA, PA March 05, 2012. To authorize the transportation in commerce of ethylene oxide in a DOT 105J400W tank car with a maximum gross rail load (GRL) not to exceed 286,000 pounds. 15497–N ...... Request by U.S. Department of Energy Washington, DC March 13, 2012. To authorize the transportation in commerce of radio- active materials without being subject to the requirements in 49 CFR 173.417(a)(1)(i). 15503–N ...... Request by Garden City Co-op, Inc. Garden City, KS March 05, 2012. To authorize the transportation in commerce of certain cargo tanks used as an implementation of husbandry with a capacity of 5,000 gallons containing anhydrous ammonia. 15546–N ...... Request by T. SCOTT DUNN CONSTRUCTION, INC. DBA Heli-Dunn Phoenix, OR February 01, 2012. To authorize the trans- portation in commerce of certain hazardous materials by external load in remote areas of the U.S. without being subject to haz- ard communication requirements and quantity limitations where no other means of transportation is available.

[FR Doc. 2012–11659 Filed 5–16–12; 8:45 am] received the applications described Department of Transportation, BILLING CODE 4909–60–P herein. This notice is abbreviated to Washington, DC 20590. expedite docketing and public notice. Comments should refer to the Because the sections affected, modes of application number and be submitted in DEPARTMENT OF TRANSPORTATION transportation, and the nature of triplicate. If confirmation of receipt of application have been shown in earlier comments is desired, include a self- Pipeline and Hazardous Materials Federal Register publications, they are Safety Administration addressed stamped postcard showing not repeated here. Requests for the special permit number. Applications for Modification of modification of special permits (e.g. to FOR FURTHER INFORMATION CONTACT: Special Permit provide for additional hazardous materials, packaging design changes, Copies of the applications are available AGENCY: Pipeline and Hazardous additional mode of transportation, etc.) for inspection in the Records Center, Materials Safety Administration are described in footnotes to the East Building, PHH–30, 1200 New (PHMSA), DOT. application number. Application Jersey Avenue Southeast, Washington ACTION: List of Applications for numbers with the suffix ‘‘M’’ denote a DC or at http://regulations.gov. Modification of Special Permits. modification request. These This notice of receipt of applications applications have been separated from for modification of special permit is SUMMARY: In accordance with the the new application for special permits published in accordance with Part 107 procedures governing the application to facilitate processing. of the Federal hazardous materials for, and the processing of, special transportation law (49 U.S.C. 5117(b); permits from the Department of DATES: Comments must be received on 49 CFR 1.53(b)). Transportation’s Hazardous Material or before June 1, 2012. Regulations (49 CFR part 107, subpart ADDRESSES: Address Comments To: Issued in Washington, DC, on May 8, 2012. B), notice is hereby given that the Office Record Center, Pipeline and Hazardous Donald Burger, of Hazardous Materials Safety has Materials Safety Administration, U.S. Chief, General Approvals and Permits.

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Application number Docket number Applicant Regulation(s) affected Nature of special permits thereof

Modification Special Permits

11054–M ...... Welker Inc. Sugar Land, 49 CFR 178.36 Subpart C To modify the special permit to authorize the con- TX. tainment cylinder or salvage cylinder without the internal piston. 11914–M ...... Cascade Designs, Inc. 49 CFR 173.304(d)(3)(ii); To modify the special permit to authorize cargo only Seattle, WA. 178.33. aircraft. 15448–M ...... U.S. Department of De- 49 CFR 172.320, 173.51, To modify the special permit to authorize interim fense Scott AFB, IL. 173.56, 173.57 and hazard classification of Class 4 and 5 materials, 173.58. and to alow that Ammunition and Explosives (AE) containing Class I may be classified as other than Class 1 dependent on the characteristics of the AE.

[FR Doc. 2012–11657 Filed 5–16–12; 8:45 am] Regulations (49 CFR Part 107, Subpart triplicate. If confirmation of receipt of BILLING CODE 4909–60–M B), notice is hereby given that the Office comments is desired, include a self- of Hazardous Materials Safety has addressed stamped postcard showing received the application described the special permit number. DEPARTMENT OF TRANSPORTATION herein. Each mode of transportation for which a particular special permit is FOR FURTHER INFORMATION CONTACT: Pipeline and Hazardous Materials requested is indicated by a number in Copies of the applications are available Safety Administration the ‘‘Nature of Application’’ portion of for inspection in the Records Center, the table below as follows: 1—Motor East Building, PHH–30, 1200 New Application for Special Permits vehicle, 2—Rail freight, 3—Cargo vessel, Jersey Avenue Southeast, Washington, AGENCY: Pipeline and Hazardous 4—Cargo aircraft only, 5—Passenger- DC or at http://regulations.gov. Materials Safety Administration carrying aircraft. This notice of receipt of applications (PHMSA), DOT. DATES: Comments must be received on for special permit is published in ACTION: List of Applications for Special or before June 18, 2012. accordance with Part 107 of the Federal Permits. ADDRESSES: Address Comments To: hazardous materials transportation law Record Center, Pipeline and Hazardous (49 U.S.C. 5117(b); 49 CFR 1.53(b)). SUMMARY: In accordance with the Materials Safety Administration, U.S. procedures governing the application Department of Transportation, Issued in Washington, DC, on May 08, for, and the processing of, special Washington, DC 20590. 2012. permits from the Department of Comments should refer to the Donald Burger, Transportation’s Hazardous Material application number and be submitted in Chief, General Approvals and Permits.

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

New Special Permits

15610–N ...... WavesinSolids LLC State 49 CFR 180.209, To authorize the transportation in commerce of cer- College, PA. 180.209(a), tain gases in DOT 3A, 3AA, 3AX, 3AAX and 3T 180.205(c)(f)(g)(i), cylinders. The cylinders (tubes) are retested by 173.302a(b)(2)(3)(4)(5), acoustic emission and ultrasonic examination (AE/ 180.213, 180.519(a), UE) described in paragraph 7 below in place of 180.519(b)(c). the internal visual inspection and the hydrostatic retest required in § 180.205. (modes 1, 2, 3) 15621–N ...... Pacific Consolidated In- 49 CFR 107.105(c), To authorize the transportation in commerce of dustries, LLC Riverside, 173.302(f)(3)(4)(5), brass-lined filament wound cylinders identified as CA. 175.501(e)(3). Mobile Oxygen Storage Tanks filled with certain Division 2.1 and 2.2 gases. (modes 1, 2, 3, 4, 5) 15623–N ...... Ledwell and Son Enter- 49 CFR 173.202, To authorize the manufacture, marking, sale and use prises, Inc. Texarkana, 173.203, 173.241, of multiple non-DOT specification containers, TX. 173.242. manifolded together within a frame and securely mounted on a truck chassis, for the transportation in commerce of the materials authorized by this special permit. (mode 1) 15624–N ...... Desert Air Transport An- 49 CFR 172.101 Column To authorize the transportation in commerce of cer- chorage, AK. (9B). tain Class 1 explosive materials which are forbid- den for transportation by air, to be transported by cargo aircraft within the State of Alaska when other means of transportation are impracticable or not available. (mode 4)

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

15626–N ...... EC Source Aviation, LLC 49 CFR 49 CFR Parts To authorize the transportation in commerce of cer- Mesa, AZ. 172.101, Column (9b), tain hazardous materials by cargo aircraft includ- 172.204(c)(3), ing by external load in remote areas without being 173.27(b)(2), subject to hazard communication requirements 175.30(a)(1), 172.200, and quantity limitations where no other means of 172.300, and 172.400. transportation is available. (modes 3, 4) 15628–N ...... E.I. du Pont de Nemours 49 CFR 179.100–12(c) .... To authorize the transportation in commerce of haz- and Company, Wil- ardous material in tank cars with a manway hous- mington, DE. ing which allows for opening from either of two sides. (mode 2) 15631–N ...... Atlas Air, Inc. Miami, FL .. 49 CFR 172.101 Column To authorize the transportation in commerce of Divi- (9B), 172.204(c)(3), sion 1.1 explosives, which are forbidden, by 173.27 (b)(2)(3). cargo-only aircraft. (mode 4)

[FR Doc. 2012–11655 Filed 5–16–12; 8:45 am] of special permit applications that have 2. Extensive public comment under BILLING CODE 4910–60–M been in process for 180 days or more. review. The reason(s) for delay and the expected 3. Application is technically complex completion date for action on each and is of significant impact or DEPARTMENT OF TRANSPORTATION application is provided in association precedent-setting and requires extensive with each identified application. Pipeline and Hazardous Materials analysis. Safety Administration FOR FURTHER INFORMATION CONTACT: 4. Staff review delayed by other Ryan Paquet, Director, Office of priority issues or volume of special Notice of Delays in Processing of Hazardous Materials Special Permits permit Applications. Special Permits Applications and Approvals, Pipeline and Hazardous Materials Safety Administration, U.S. Meaning of Application Number AGENCY: Pipeline and Hazardous Department of Transportation, East Suffixes Materials Safety Administration Building, PHH–30, 1200 New Jersey N—New application (PHMSA), DOT. Avenue Southeast, Washington, DC M—Modification request ACTION: List of applications delayed 20590–0001, (202) 366–4535. R—Renewal Request more than 180 days. P—Party to Exemption Request Key to ‘‘Reason for Delay’’ SUMMARY: In accordance with the Issued in Washington, DC, on May 1, 2012. requirements of 49 U.S.C. 5117(c), 1. Awaiting additional information Donald Burger, PHMSA is publishing the following list from applicant. Chief, General Approvals and Permits.

Reason for Estimated date Application No. Applicant delay of completion

Modification to Special Permits

14372–M ...... Kidde Aerospace and Defense, Wilson, NC ...... 3 06–30–2012 10964–M ...... Kidde Aerospace & Defense, Wilson, NC ...... 3 07–31–2012 12706–M ...... RAGASCO AS, Raufoss, NO ...... 3 07–31–2012 11516–M ...... The Testor Corporation, Rockford, IL ...... 3 07–30–2012

New Special Permit Applications

15080–N ...... Alaska Airlines, Seattle, WA ...... 1 06–30–2012 15393–N ...... Savannah Acid Plant LLC, Savannah, GA ...... 3 07–30–2012 15494–N ...... Johnson Controls Battery Group, Inc., Milwaukee, WI ...... 3 07–31–2012 15510–N ...... TEMSCO Helicopters, Inc., Ketchikan, AK ...... 3 07–30–2012 15334–N ...... Floating Pipeline Company Incorporated, Halifax, Nova Scotia ...... 3 07–30–2012

Party to Special Application

14372–P ...... L’Hotellier, France ...... 3 07–30–2012 15284–P ...... Honeywell International, Inc., Morristown, NJ ...... 3 05–30–2012 11136–P ...... Lantis Productions Inc., dba Lantis Fireworks & Lasers Draper, UT ...... 3 06–30–2012

Renewal Special Permits Applications

12283–R ...... Interstate Battery of Alaska, Anchorage, AK ...... 3 06–30–2012 9929–R ...... Alliant Techsystems Operations LLC, (Former Grantee ATK Elkton) Elkton, MD ...... 3 07–30–2012 11110–R ...... United Parcel Services Company, Louisville, KY 3 08–30–2012 14251–R ...... INO Therapeutics/Ikaria,Port Allen, LA ...... 3 07–31–2012

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[FR Doc. 2012–11653 Filed 5–16–12; 8:45 am] reconsideration. Petitions to stay that do Board decisions and notices are 2 BILLING CODE 4910–60–M not involve environmental issues, available on our Web site at formal expressions of intent to file an ‘‘www.stb.dot.gov.’’ 3 OFA under 49 CFR 1152.27(c)(2), and Decided: May 10, 2012. DEPARTMENT OF TRANSPORTATION trail use/rail banking requests under 49 By the Board, Rachel D. Campbell, CFR 1152.29 must be filed by May 29, Surface Transportation Board Director, Office of Proceedings. 2012. Petitions to reopen or requests for Derrick A. Gardner, public use conditions under 49 CFR [Docket No. AB 511 (Sub-No. 6X)] Clearance Clerk. 1152.28 must be filed by June 6, 2012, Central Railroad Company of with the Surface Transportation Board, [FR Doc. 2012–11966 Filed 5–16–12; 8:45 am] Indianapolis—Abandonment 395 E Street SW., Washington, DC BILLING CODE 4915–01–P Exemption—in Howard County, IN 20423–0001. Central Railroad Company of A copy of any petition filed with the DEPARTMENT OF TRANSPORTATION Indianapolis (CERA) has filed a verified Board should be sent to CERA’s notice of exemption under 49 CFR part representative: Melanie B. Yasbin, Law Surface Transportation Board Offices of Louis E. Gitomer, LLC, 600 1152 subpart F—Exempt Abandonments [Docket No. AB 1090X] to abandon 2.84 miles of rail line on its Baltimore Ave., Suite 301, Towson, MD Tipton Industrial Lead, between 21204. City of Alameda d/b/a Alameda Belt mileposts 55.66 and 58.5 in Howard If the verified notice contains false or Line Railroad—Abandonment County, Ind.1 The line traverses United misleading information, the exemption Exemption—in Alameda County, CA States Postal Service Zip Code 46901. is void ab initio. City of Alameda d/b/a Alameda Belt CERA has certified that: (1) No local CERA has filed a combined Line Railroad (ABL) has filed a verified traffic has moved over the line for at environmental and historic report notice of exemption under 49 CFR part least 2 years; (2) any overhead traffic which addresses the effects, if any, of 1152 subpart F—Exempt Abandonments can be rerouted over other lines; (3) no the abandonment on the environment to abandon approximately 2.61 miles of formal complaint filed by a user of rail and historic resources. OEA will issue rail line between milepost 0.0 near the service on the line (or by a state or local an environmental assessment (EA) by intersection of Clement Avenue and government entity acting on behalf of May 22, 2012. Interested persons may Broadway and milepost 2.61 near such user) regarding cessation of service obtain a copy of the EA by writing to Constitution Way, in the City of over the line either is pending with the OEA (Room 1100, Surface Alameda, Alameda County, Cal. The Surface Transportation Board (Board) or Transportation Board, Washington, DC line traverses United States Postal with any U.S. District Court or has been 20423–0001) or by calling OEA at (202) decided in favor of complainant within Service Zip Code 94501. 245–0305. Assistance for the hearing ABL has certified that: (1) No local the 2-year period; and (4) the impaired is available through the requirements at 49 CFR 1105.7(c) traffic has moved over the line for at Federal Information Relay Service at least 2 years; (2) there is no overhead (environmental report), 49 CFR 1105.11 (800) 877–8339. Comments on (transmittal letter), 49 CFR 1105.12 traffic on the line; (3) no formal environmental and historic preservation complaint filed by a user of rail service (newspaper publication), and 49 CFR matters must be filed within 15 days 1152.50(d)(1) (notice to governmental on the line (or by a state or local after the EA becomes available to the government entity acting on behalf of agencies) have been met. public. As a condition to this exemption, any such user) regarding cessation of service employee adversely affected by the Environmental, historic preservation, over the line either is pending with the abandonment shall be protected under public use, or trail use/rail banking Surface Transportation Board (Board) or Oregon Short Line Railroad— conditions will be imposed, where with any U.S. District Court or has been Abandonment Portion Goshen Branch appropriate, in a subsequent decision. decided in favor of complainant within Between Firth & Ammon, in Bingham & Pursuant to the provisions of 49 CFR the 2-year period; and (4) the Bonneville Counties, Idaho, 360 I.C.C. 1152.29(e)(2), CERA shall file a notice of requirements at 49 CFR 1105.7(c) 91 (1979). To address whether this consummation with the Board to signify (environmental report), 49 CFR 1105.11 condition adequately protects affected that it has exercised the authority (transmittal letter), 49 CFR 1105.12 employees, a petition for partial granted and fully abandoned the line. If (newspaper publication), and 49 CFR revocation under 49 U.S.C. 10502(d) consummation has not been effected by 1152.50(d)(1) (notice to governmental must be filed. CERA’s filing of a notice of agencies) have been met. Provided no formal expression of consummation by May 17, 2013, and As a condition to this exemption, any intent to file an offer of financial there are no legal or regulatory barriers employee adversely affected by the assistance (OFA) has been received, this to consummation, the authority to abandonment shall be protected under exemption will be effective on June 16, abandon will automatically expire. Oregon Short Line Railroad— 2012, unless stayed pending Abandonment Portion Goshen Branch 2 The Board will grant a stay if an informed Between Firth & Ammon, in Bingham & 1 By notice served and published in the Federal decision on environmental issues (whether raised Bonneville Counties, Idaho, 360 I.C.C. Register on July 22, 2010, CERA obtained authority by a party or by the Board’s Office of Environmental 91 (1979). To address whether this to abandon the subject line in Central Railroad Co. Analysis (OEA) in its independent investigation) condition adequately protects affected of Indianapolis—Abandonment Exemption—in cannot be made before the exemption’s effective Howard County, Ind., AB 511 (Sub-No. 5X) (STB date. See Exemption of Out-of-Serv. Rail Lines, 5 employees, a petition for partial served July 22, 2010). That abandonment authority I.C.C. 2d 377 (1989). Any request for a stay should revocation under 49 U.S.C. 10502(d) expired without CERA consummating the be filed as soon as possible so that the Board may must be filed. abandonment, and CERA has since treated the take appropriate action before the exemption’s Provided no formal expression of entire line as an active line of railroad. CERA Letter, effective date. Cent. R.R. Co. of Indianapolis—Aban. Exemption— 3 Each OFA must be accompanied by the filing intent to file an offer of financial in Howard Cnty., Ind., AB 511 (Sub-No. 5X) (filed fee, which is currently set at $1,500. See 49 CFR assistance (OFA) has been received, this July 28, 2011). 1002.2(f)(25). exemption will be effective on June 16,

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2012, unless stayed pending By the Board, Rachel D. Campbell, Title: TD 8366 (Temporary and Final) reconsideration. Petitions to stay that do Director, Office of Proceedings. Real Estate Mortgage Investment not involve environmental issues,1 Derrick A. Gardner, Conduits; Reporting Requirements and formal expressions of intent to file an Clearance Clerk. Other Administrative Matters; TD 8431 OFA under 49 CFR 1152.27(c)(2),2 and [FR Doc. 2012–11976 Filed 5–16–12; 8:45 am] (Final) Allocation of Allocable trail use/rail banking requests under 49 BILLING CODE 4915–01–P Investment Expense; Original Issue CFR 1152.29 must be filed by May 29, Discount Reporting Requirements. 2012. Petitions to reopen or requests for Abstract: The regulations prescribe public use conditions under 49 CFR DEPARTMENT OF THE TREASURY the manner in which an entity elects to 1152.28 must be filed by June 6, 2012, be taxed as a real estate mortgage with the Surface Transportation Board, Submission for OMB Review; investment conduit (REMIC) and the 395 E Street SW., Washington, DC Comment Request filing requirements for REMICs and 20423–0001. certain brokers. A copy of any petition filed with the May 14, 2012. Affected Public: Private Sector: Not- Board should be sent to ABL’s The Department of the Treasury will for-profits institutions. representative: Charles H. Montange, submit the following information Estimated Total Burden Hours: 978. collection request to the Office of 426 NW 162nd St., Seattle, WA 98177. OMB Number: 1545–1231. Management and Budget (OMB) for If the verified notice contains false or Type of Review: Extension without review and clearance in accordance misleading information, the exemption change of a currently approved with the Paperwork Reduction Act of is void ab initio. collection. 1995, Public Law 104–13, on or after the ABL has filed a combined Title: TD 9436—Tax Return Preparer date of publication of this notice. environmental and historic report that Penalties Under Section 6694 and 6695 addresses the effects, if any, of the DATES: Comments should be received on (Final Regulations); TD 8382—Penalty abandonment on the environment and or before June 18, 2012 to be assured of on Income Tax Return Preparers Who historic resources. OEA will issue an consideration. Understate Taxpayer’s Liability on a environmental assessment (EA) by May ADDRESSES: Send comments regarding Federal Income Tax Return or a Claim 22, 2012. Interested persons may obtain the burden estimate, or any other aspect for Refund. a copy of the EA by writing to OEA of the information collection, including Abstract: This information is (Room 1100, Surface Transportation suggestion for reducing the burden, to necessary to make the record of the Board, Washington, DC 20423–0001) or (1) Office of Information and Regulatory name, taxpayer identification number, by calling OEA at (202) 245–0305. Affairs, Office of Management and and principal place of work of each tax Assistance for the hearing impaired is Budget, Attention: Desk Officer for return preparer, make each return or available through the Federal Treasury, New Executive Office claim for refund prepared available for Information Relay Service at 1–800– Building, Room 10235, Washington, DC inspection by the Commissioner of 877–8339. Comments on environmental 20503, or email at Internal Revenue, and to document that and historic preservation matters must _ OIRA [email protected] and the tax return preparer advised the be filed within 15 days after the EA (2) Treasury PRA Clearance Officer, taxpayer of the penalty standards becomes available to the public. 1750 Pennsylvania Ave. NW., Suite applicable to the taxpayer in order for Environmental, historic preservation, 8140, Washington, DC 20220, or on-line the tax return preparer to avoid public use, or trail use/rail banking at www.PRAComment.gov. penalties under section 6694. These conditions will be imposed, where FOR FURTHER INFORMATION CONTACT: regulations implements amendments to appropriate, in a subsequent decision. Copies of the submission(s) may be Pursuant to the provisions of 49 CFR the tax return preparer penalties under obtained by calling (202) 927–5331, sections 6694 and 6695 of the Internal 1152.29(e)(2), ABL shall file a notice of email at [email protected], or the entire consummation with the Board to signify Revenue Code and related provisions information collection request maybe under sections 6060, 6107, 6109, 6696, that it has exercised the authority found at www.reginfo.gov. granted and fully abandoned the line. If and 7701(a)(36) reflecting amendments consummation has not been effected by Internal Revenue Service (IRS) to the Code made by section 8246 of the Small Business and Work Opportunity ABL’s filing of a notice of OMB Number: 1545–0430. consummation by May 17, 2013, and Type of Review: Extension without Tax Act of 2007 and section 506 of the there are no legal or regulatory barriers change of a currently approved Tax Extenders and Alternative to consummation, the authority to collection. Minimum Tax Relief Act of 2008. The abandon will automatically expire. Title: Request for Prompt Assessment final regulation affects tax return Board decisions and notices are Under Internal Revenue Code Section preparers and provides guidance available on our Web site at 6501(d). regarding the amended provisions. ‘‘www.stb.dot.gov.’’ Form: 4810. Affected Public: Private Sector: Abstract: Form 4810 is used to request Businesses or other for-profits. Decided: May 9, 2012. a prompt assessment under IRC Section Estimated Total Burden Hours: 10,679,320. 1 The Board will grant a stay if an informed 6501(d). IRS uses this form to locate the decision on environmental issues (whether raised return to expedite processing of the OMB Number: 1545–1290. by a party or by the Board’s Office of Environmental taxpayer’s request. Type of Review: Extension without Analysis (OEA) in its independent investigation) Affected Public: Private Sector: change of a currently approved cannot be made before the exemption’s effective Businesses or other for-profits. date. See Exemption of Out-of-Serv. Rail Lines, 5 collection. I.C.C.2d 377 (1989). Any request for a stay should Estimated Total Burden Hours: Title: TD 8513—Bad Debt Reserves of be filed as soon as possible so that the Board may 24,800. Banks. take appropriate action before the exemption’s OMB Number: 1545–1018. Abstract: Section 585(c) of the effective date. 2 Each OFA must be accompanied by the filing Type of Review: Extension without Internal Revenue Code requires large fee, which is currently set at $1,500. See 49 CFR change of a currently approved banks to change from the reserve 1002.2(f)(25). collection. method of accounting to the specific

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charge off method of accounting for bad review and clearance in accordance DEPARTMENT OF THE TREASURY debts. The information required by with the Paperwork Reduction Act of § 1.585–8 of the regulations identifies 1995, Public Law 104–13, on or after the Office of the Comptroller of the any election made or revoked by the date of publication of this notice. Currency taxpayer in accordance with § 585(c). [Docket No. OCC–2012–0004] Affected Public: Private Sector: DATES: Comments should be received on or before June 18, 2012 to be assured of Businesses or other for-profits. FEDERAL RESERVE SYSTEM Estimated Total Burden Hours: 625. consideration. [Docket No. OP–1421] OMB Number: 1545–1514. ADDRESSES: Send comments regarding Type of Review: Extension without the burden estimate, or any other aspect FEDERAL DEPOSIT INSURANCE change of a currently approved of the information collection, including CORPORATION collection. suggestion for reducing the burden, to Title: REG–209040–88 (NPRM), the (1) Office of Information and Supervisory Guidance on Stress Qualified Electing Fund Elections. Regulatory Affairs, Office of Testing for Banking Organizations Abstract: The regulations permit Management and Budget, Attention: With More Than $10 Billion in Total certain shareholders to make a special Consolidated Assets section 1295 election with respect to Desk Officer for Treasury, New certain preferred shares of a PFIC. Executive Office Building, Room 10235, AGENCY: Board of Governors of the Taxpayers must indicate the election on Washington, DC 20503, or email at Federal Reserve System (‘‘Board’’ or _ a Form 8621 and attach a statement OIRA [email protected] and ‘‘Federal Reserve’’); Federal Deposit containing certain information and to the (2) Treasury PRA Clearance Insurance Corporation (‘‘FDIC’’); Office representations. Form 8621 must be Officer, 1750 Pennsylvania Ave. NW., of the Comptroller of the Currency, filed annually. The shareholder also Suite 8140, Washington, DC 20220, or Treasury (‘‘OCC’’). must obtain, and retain a copy of, a on-line at www.PRAComment.gov. ACTION: Final supervisory guidance. statement from the corporation as to its FOR FURTHER INFORMATION CONTACT: SUMMARY: The Board, FDIC and OCC, status as a PFIC. Copies of the submission(s) may be Affected Public: Individuals or (collectively, the ‘‘agencies’’) are issuing obtained by calling (202) 927–5331, Households. this guidance, which outlines high-level email at [email protected], or the entire Estimated Total Burden Hours: 600. principles for stress testing practices, information collection request maybe applicable to all Federal Reserve- OMB Number: 1545–1954. found at www.reginfo.gov. Type of Review: Extension without supervised, FDIC-supervised, and OCC- change of a currently approved Alcohol and Tobacco Tax and Trade supervised banking organizations with collection. Bureau (TTB) more than $10 billion in total Title: Health Coverage Tax Credit consolidated assets. The guidance Registration Update Form. OMB Number: 1513–0103. highlights the importance of stress Form: 13704. Type of Review: Revision a currently testing as an ongoing risk management Abstract: Internal Revenue Code approved collection. practice that supports a banking Sections 35 and 7527 enacted by public organization’s forward-looking Title: Tobacco Bond—Collateral, law 107–210 require the Internal assessment of its risks and better equips Tobacco Bond—Surety, and Tobacco Revenue Service to provide payments of the organization to address a range of the HCTC to eligible individuals Bond. adverse outcomes. beginning August 1, 2003. The IRS will Form: TTB F 5200.25, 5200.26, DATES: This guidance will become use the Registration Update Form to 5200.29. effective on July 23, 2012. ensure, that the processes and Abstract: TTB requires a corporate FOR FURTHER INFORMATION CONTACT: communications for delivering these surety bond or a collateral bond to Board: Constance M. Horsley, payments help taxpayers determine if ensure payment of the excise tax on Manager, Capital and Regulatory Policy they are eligible for the credit and tobacco products (TP) and cigarette (202) 452–5239, David Palmer, Senior understand what they need to do to paper and tubes (CP&T) removed from Supervisory Analyst, Risk Section, (202) continue to receive it. the factory or warehouse. These TTB 452–2904, or Sean Healey, Financial Affected Public: Individuals or forms identify the agreement to pay and Analyst, Capital and Regulatory Policy, Households. the person from which TTB will attempt (202) 912–4611, Division of Banking Estimated Total Burden Hours: 1,100. to collect any unpaid excise tax. Supervision and Regulation; or Benjamin W. McDonough, Senior Dawn D. Wolfgang, Manufactures of TP or CP&T, export Counsel, (202) 452–2036, Christine E. Treasury PRA Clearance Officer. warehouse proprietors, and corporate Graham, Senior Attorney, (202) 452– [FR Doc. 2012–11935 Filed 5–16–12; 8:45 am] sureties, if applicable, are the 3005, or Dominic A. Labitzky, Senior BILLING CODE 4830–01–P respondents for these forms. Attorney, (202) 452–3428, Legal Affected Public: Private Sector: Division, Board of Governors of the Businesses or other for-profits. Federal Reserve System, 20th and C DEPARTMENT OF THE TREASURY Estimated Total Burden Hours: 111. Streets NW., Washington, DC 20551. Submission for OMB Review; FDIC: George French, Deputy Comment Request Dawn D. Wolfgang, Director, Policy, (202) 898–3929; Robert Treasury PRA Clearance Officer. Burns, Associate Director, Division of May 14, 2012. [FR Doc. 2012–11985 Filed 5–16–12; 8:45 am] Risk Management Supervision, (202) The Department of the Treasury will BILLING CODE 4810–31–P 898–3905; Karl Reitz, Senior Capital submit the following information Markets Specialist, (202) 898–6775, collection request to the Office of Division of Risk Management Management and Budget (OMB) for Supervision; or Mark Flanigan, Counsel,

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(202) 898–7426; Ryan Clougherty, The 2007–2009 financial crisis further the guidance describes several types of Senior Attorney, (202) 898–3843, underscored the need for banking stress testing activities and how they Supervision Branch, Legal Division, organizations to incorporate stress may be most appropriately used by Federal Deposit Insurance Corporation, testing into their risk management, as banking organizations subject to this 550 17th Street NW., Washington, DC banking organizations unprepared for guidance. 20429. stressful events and circumstances can The final guidance does not OCC: Darrin Benhart, Deputy suffer acute threats to their financial implement the stress testing Comptroller, Credit and Market Risk, condition and viability.4 The final requirements imposed by the Dodd- (202) 874 1711, Robert Scavotto, Lead guidance is intended to be consistent Frank Wall Street Reform and Consumer International Expert, International with sound industry practices and with Protection Act (Dodd-Frank Act) on Analysis and Banking Condition (202) international supervisory standards.5 financial companies regulated by the 874–4943, Tanya Smith, NBE, Lead Building upon previously issued OCC, FDIC, or Board with total Expert for Regulatory Capital and supervisory guidance that discusses the consolidated assets of more than $10 Operational Risk, Large Bank uses and merits of stress testing in billion or by the Board’s capital plan Supervision (202) 874–4464, Akhtarur specific areas of risk management, the rule on U.S. bank holding companies Siddique, Deputy Director, Enterprise final guidance provides principles that with total consolidated assets equal to Risk Analysis Division (202) 874–4665, a banking organization should follow or greater than $50 billion.6 The Dodd- or Alexandra Arney, Attorney, when conducting its stress testing Frank Act’s stress testing requirements Legislative and Regulatory Activities activities. The guidance outlines broad are being implemented through separate Division (202) 874–6104, Office of the principles for a satisfactory stress testing notices of proposed rulemaking by the Comptroller of the Currency, 250 E framework and describes the manner in respective agencies.7 The Board issued Street SW., Washington, DC 20219. which stress testing should be employed the final capital plan rule on November 22, 2011. In light of these recent SUPPLEMENTARY INFORMATION: as an integral component of risk management that is applicable at rulemaking efforts on stress testing, the I. Background various levels of aggregation within a guidance provides banking On June 15, 2011, the agencies banking organization and that organizations with principles for requested public comment on joint contributes to capital and liquidity conducting their stress testing activities proposed guidance on the use of stress planning. While the guidance is not to, among other things, ensure that those testing as an ongoing risk management intended to provide detailed activities are adequately integrated into 8 practice by banking organizations with instructions for conducting stress testing overall risk management. The agencies more than $10 billion in total for any particular risk or business area, expect such companies would follow consolidated assets (the proposed the principles set forth in the guidance).1 The public comment period www.federalreserve.gov/boarddocs/srletters/2010/ guidance—as well as other relevant sr1001.htm; Supervision and Regulation Letter SR on the proposed guidance closed on July supervisory guidance—when 09–4, Applying Supervisory Guidance and conducting stress testing in accordance 29, 2011. The agencies are adopting the Regulations on the Payment of Dividends, Stock guidance in final form with certain Redemptions, and Stock Repurchases at Bank with statutory or regulatory 9 modifications that are discussed below Holding Companies (revised March 27, 2009), requirements. available at http://www.federalreserve.gov/ (the final guidance). As described boarddocs/srletters/2009/SR0904.htm; Supervision II. Discussion of Comments on the below, this guidance does not apply to and Regulation Letter SR 07–1, OCC Bulletin 2006– Proposed Guidance banking organizations with consolidated 46 or FDIC FIL–104–2006, Interagency Guidance on The agencies received 17 comment assets of $10 billion or less. Concentrations in Commercial Real Estate (January 4, 2007), available at http://www.federalreserve.gov/ letters on the proposed guidance. All banking organizations should boarddocs/srletters/2007/SR0701.htm; Supervision Commenters included financial trade have the capacity to understand their and Regulation Letter SR 01–4, OCC Bulletin 2001– associations, bank holding companies, risks and the potential impact of 6 or FDIC FIL–9–2001, Subprime Lending (January financial advisory firms, and stressful events and circumstances on 31, 2001), available at http:// www.federalreserve.gov/boarddocs/srletters/2001/ individuals. Commenters generally their financial condition.2 The agencies SR0104.htm; Supervision and Regulation Letter SR expressed support for the proposed have previously highlighted the use of 99–18, Assessing Capital Adequacy in Relation to guidance. However, several commenters Risk at Large Banking Organizations and Others stress testing as a means to better recommended changes to, or understand the range of a banking with Complex Risk Profiles (July 1, 1999), available 3 at http://www.federalreserve.gov/boarddocs/ clarification of, certain provisions of the organization’s potential risk exposures. srletters/1999/SR9918; Supervisory Guidance: proposed guidance, as discussed below. Supervisory Review Process of Capital Adequacy In response to these comments, the 1 See 76 FR 35072 (June 15, 2011). (Pillar 2) Related to the Implementation of the Basel 2 For purposes of this guidance, the term II Advanced Capital Framework, 73 FR 44620 (July agencies have clarified the principles set ‘‘banking organization’’ means national banks, 31, 2008); The Supervisory Capital Assessment forth in the guidance and modified the federal savings associations, and federal branches Program: Overview of Results (May 7, 2009), proposed guidance in certain respects as and agencies supervised by the OCC; state member available at http://www.federalreserve.gov/ described in this section. banks, bank holding companies, savings and loan newsevents/press/bcreg/bcreg20090507a1.pdf; holding companies, and all other institutions for Comprehensive Capital Analysis and Review: which the Federal Reserve is the primary federal Objectives and Overview (March 18, 2011), 6 See 12 CFR 225.8. supervisor; and state nonmember banks, and all available at http://www.federalreserve.gov/ 7 See Enhanced Prudential Standards and Early other institutions for which the FDIC is the primary newsevents/press/bcreg/bcreg20110318a1.pdf; and Remediation Requirements for Covered Companies, federal supervisor. 12 CFR 225.8. 77 FR 594 (Jan. 5, 2012) (Board); Annual Stress 3 See, e.g., Supervision and Regulation Letter SR 4 The Dodd-Frank Wall Street Reform and Test, 77 FR 3408 (Jan. 24, 2012) (OCC); Annual 10–6, OCC Bulletin 2010–13 or FDIC Financial Consumer Protection Act (Pub. L. 111–203, 124 Stress Test, 77 FR 3166 (Jan. 23, 2012) (FDIC). Institution Letter (FIL) 13–2010, Interagency Policy Stat. 1376) requires financial organizations with 8 As described below, the agencies believe that Statement on Funding and Liquidity Risk more than $10 billion in total consolidated assets $10 billion is the appropriate threshold based on Management (March 17, 2010), available at http:// to conduct a stress test at least annually. See the general complexity of firms above this size. www.federalreserve.gov/boarddocs/srletters/2010/ generally 12 U.S.C. 5365(i)(2). 9 To the extent that the guidance conflicts with sr1006.htm; Supervision and Regulation Letter SR 5 See Basel Committee on Banking Supervision, the requirements imposed with respect to any 10–1, OCC Bulletin 2010–1 or FDIC FIL–2–2010, Principles for Sound Stress Testing Practices and future statutory or regulatory stress test, banking Interagency Advisory on Interest Rate Risk (January Supervision (May 2009), available at http:// organizations must comply with the requirements 11, 2010), available at http:// www.bis.org/publ/bcbs155.pdf. set forth in the relevant statute or regulation.

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A. Scope of Application home country supervisors and suggested certain differences do exist between The proposed guidance would have that the agencies give consideration to national banks and federal savings applied to all banking organizations those requirements. When developing associations, the OCC notes that the supervised by the agencies with more the guidance, the agencies sought to final guidance contains flexibility than $10 billion in total consolidated ensure that it would not introduce adequate to accommodate the variations assets. Specifically, with respect to the inconsistencies with internationally in size, complexity, business activities, OCC, these banking organizations would agreed supervisory standards. The and overall risk profile of all banking have included national banking agencies recognize that an FBO’s U.S. organizations that meet the asset associations and federal branches and operations are part of the FBO’s global threshold. Thus, it is also expected that agencies; with respect to the Board, enterprise subject to requirements of its each federal savings association would these banking organizations would have home country. The agencies provided implement the guidance consistent with included state member banks, bank sufficient flexibility in the proposed its own business and risk profile. guidance so that the guidance could Several commenters requested holding companies, and all other apply to various types of organizations. clarification on the linkage between the institutions for which the Board is the In this final guidance, the agencies stress testing guidance and the stress primary federal supervisor; with respect clarify that certain aspects of the testing requirements in the Dodd-Frank to the FDIC, these banking organizations guidance may not apply to U.S. Act. In devising the guidance, the would have included state nonmember branches and agencies of FBOs (such as agencies endeavored to ensure that the banks and all other institutions for the portions related to capital stress proposed and final guidance is which the FDIC is the primary federal testing) or may apply differently (such consistent with the stress testing supervisor. The proposed guidance as portions related to governance and requirements under the Dodd-Frank Act indicated that a banking organization controls). Supervisors will take these and believe that the principles set forth should develop and implement its stress issues into consideration when in the final guidance are useful when testing framework in a manner evaluating the ability of U.S. offices of conducting the stress tests required commensurate with its size, complexity, FBOs to meet the principles in the under the Act. Notably, the final business activities, and overall risk guidance. guidance was framed broadly to inform profile. Two commenters expressed concern a banking organization’s use of stress Some commenters supported the total regarding the application of the testing in overall risk management, not consolidated asset threshold (i.e., more proposed guidance to savings and loan just stress tests required under the than $10 billion), but others noted the holding companies (SLHCs). They Dodd-Frank Act. Dodd-Frank stress tests importance and value of stress testing suggested that the Board issue separate would generally be considered part of for smaller banking organizations. guidance for SLHCs, as these an organization’s overall stress testing Consistent with the proposed guidance, institutions would face a different set of framework as described in the stress no supervised banking organization stress testing assumptions and scenarios testing guidance.11 with $10 billion or less in total than banking organizations. The Board B. Stress Testing Principles consolidated assets is subject to this believes that the guidance is instructive final guidance. The agencies believe that to SLHCs to the same degree it is for As noted above, the proposed $10 billion is the appropriate threshold bank holding companies. The Federal guidance identified and included a for the guidance based on the general Reserve became the primary federal discussion of four key principles for a complexity of firms above this size. supervisor for SLHCs on July 21, 2011, banking organization’s stress testing However, the agencies note that after the agencies published the framework and related stress test previously issued supervisory guidance proposed guidance for public comment results, namely that: (1) A banking applicable to all supervised institutions but before the end of the comment organization’s stress testing framework discusses the use of stress testing as a period. While the Board recognizes that should include activities and exercises tool in certain aspects of risk certain differences do exist between that are tailored to and sufficiently management—such as for commercial bank holding companies and SLHCs, the capture the banking organization’s real estate concentrations, liquidity risk Board believes the guidance contains exposures, activities, and risks; (2) an management, and interest-rate risk flexibility adequate to accommodate the effective stress testing framework management. The agencies received two variations in size, complexity, business employs multiple conceptually sound comments suggesting that the $10 activities, and overall risk profile of all stress testing activities and approaches; billion total consolidated asset banking organizations that meet the (3) an effective stress testing framework threshold be measured over a four- asset threshold. Thus, the guidance is forward-looking and flexible; and (4) quarter period in order to minimize the anticipates that each banking stress test results should be clear, likelihood that temporary asset organization, including each SLHC, actionable, well supported, and inform fluctuations would trigger application of would implement stress testing in a decision-making. In the final guidance, the guidance. The agencies do not manner consistent with its own the agencies have incorporated a fifth establish an asset calculation business and risk profile.10 principle specifying that an methodology in the final guidance; Similarly, one commenter advocated organization’s stress testing framework however, banking organizations with that the OCC propose separate guidance should include strong governance and assets near the threshold should use on stress testing specifically tailored to effective internal controls. The elements reasonable judgment and consider, in savings associations. The OCC became of the fifth principle had been set forth conjunction with their primary federal the primary federal supervisor for in section VI of the proposed guidance, supervisor as appropriate, whether they federal savings associations on July 21, and the fifth principle does not expand should consider preparing to follow the 2011. While the OCC recognizes that on this aspect of the proposed guidance. guidance. Rather, the agencies reorganized this Three commenters expressed concern 10 See Supervision and Regulation Letter SR 11– discussion into a fifth principle in order that foreign banking organizations 11, Supervision of Savings and Loan Holding Companies (SLHCs) (July 21, 2011), available at to underscore the importance of (FBOs) are required to follow stress http://www.federalreserve.gov/bankinforeg/ testing guidelines established by their srletters/sr1111.pdf. 11 See supra note 8.

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governance and controls as a key an organization’s liabilities into account to assume a known adverse outcome, element in a banking organization’s and have clarified this in the final such as suffering a credit loss that stress testing framework. guidance. Three commenters suggested causes it to breach a minimum As noted above, commenters were that operational risk be specifically regulatory capital ratio or suffering supportive of the principles-based referenced in the guidance. In response, severe liquidity constraints making it approach and the notion that a banking the agencies have clarified in the final unable to meet its obligations, and then organization’s stress testing framework guidance that operational risk should be deduce the types of events that could should be implemented in a manner among the risks considered by an lead to such an outcome. This type of commensurate with factors such as the organization’s stress testing framework. stress testing may help a banking complexity and size of the organization. Another commenter expressed organization to consider scenarios With more specific regard to the concern that the frequency of stress beyond its normal business expectations proposed principles, commenters testing and communication of results and see the impact of severe systemic suggested that the final guidance might eventually desensitize senior effects on the banking organization. It address the standardization of stress management to them. The agencies testing through the inclusion of believe that regular review of stress test also would allow a banking organization common coefficients, models, or results is useful—both during periods of to challenge common assumptions benchmarks. These commenters economic downturn and benign about its performance and expected expressed concerns that banking periods—and have clarified that such mitigation strategies. organizations would implement the review can help a banking organization Three commenters expressed doubts principles inconsistently and that track over time the impact of ongoing regarding the effectiveness of reverse standardization would help regulators business activities, changes in stress testing, as the approach could conduct comparative analyses across exposures, varying economic produce results of questionable value firms. Another commenter suggested conditions, and market movements on and captures unlikely, ‘‘extreme’’ that the agencies prescribe more its financial condition. Aside from the scenarios. The agencies reiterate the detailed and integrated stress testing inclusion of a fifth principle as value of reverse stress testing, as it helps between different entities or business described above, the agencies have a banking organization evaluate the units within an organization. otherwise adopted the proposed combined effect of several types of The agencies did not modify the principles in the final guidance with extreme events and circumstances that guidance in response to these only minor additional refinements. might threaten the survival of the comments. A key aspect of the guidance is to provide organizations flexibility on C. Stress Testing Approaches and banking organization, even if in how they design their individual stress Applications isolation each of the effects might be testing frameworks. Thus, each banking The proposed guidance described manageable. Another commenter organization should design a specific certain stress testing approaches and expressed concern that the results of stress testing framework to capture risks applications—scenario analysis, severe scenarios used for reverse stress relevant to the organization. The sensitivity analysis, enterprise-wide testing would directly lead to a agencies believe that prescribing testing, and reverse stress testing—that supervisory requirement to raise capital standardized stress tests in this a banking organization could consider if the results of the approach were guidance would have its own inherent using within its stress testing unfavorable to the organization. In limitations and may not appropriately framework, as appropriate. The addition, some commenters sought cover a banking organization’s material proposed guidance provided that each clarification that results would not be risks and activities. banking organization should apply these used by regulators to criticize banking In addition, commenters suggested approaches and applications organizations. that the agencies mandate public release commensurate with its size, complexity, As stated in the proposed guidance, a of stress testing results through the and business profile, and may not need given stress test result will not guidance. The agencies have considered to incorporate all of the details necessarily lead to immediate action by these comments, but do not believe the described in the guidance. a firm, and in some cases stress test final guidance is the appropriate place Some commenters questioned the results—including those from reverse for such a requirement given its broader appropriate number and types of stress stress tests—are most useful for the focus on banking organizations’ overall test approaches an organization should additional information they provide. In stress testing frameworks. The agencies utilize. The agencies do not believe that note, however, that banking specifying a number or particular types terms of supervisory responses to an organizations may be required to of approaches—including the number of organization’s stress testing activities, disclose information about their stress scenarios—is appropriate in the the agencies expect to consider a tests pursuant to other statutory, guidance given the wide range of stress banking organization’s stress test results regulatory, or supervisory requirements. testing activities that different banking and the appropriateness of its overall A few commenters stated that a organizations may undertake. A banking stress testing framework, along with all banking organization should explain organization should choose the other relevant information, in assessing and justify the stress testing approaches that appropriately consider a banking organization’s risk methodologies it utilizes to its primary the unique characteristics of that management practices, as well as its federal supervisor. The agencies note particular organization and the relevant capital and liquidity adequacy. The that supervisors will examine firms’ risks it faces. The agencies expect that guidance sets forth supervisory stress testing methodologies through the stress testing methodologies will evolve expectations for prudent risk supervisory process. One commenter over time as banking organizations management practices and a firm’s noted that the guidance should develop approaches that best capture decision not to follow the principles in explicitly indicate that liabilities should their individual risk profiles. this guidance will be examined as part be part of a banking organization’s stress In addition, the proposed guidance of the supervisory process and may be testing activities; the agencies intended described reverse stress testing as a tool cited as evidence of unsafe and unsound that stress testing activities would take that would allow a banking organization practices.

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D. Stress Testing For Assessing E. Governance and Controls The agencies have modified the final Adequacy of Capital and Liquidity guidance to clarify that senior As noted under the new fifth management, not the board of directors, Given the importance of capital and principle of the final guidance, a should have the primary responsibility liquidity to a banking organization’s banking organization’s stress testing for stress testing implementation and viability, stress testing should be framework will be effective only if it is technical design. However, the agencies applied to these two areas on a regular subject to strong governance and emphasize that a banking organization’s basis. Stress testing for capital and controls to ensure that the framework board of directors should be provided liquidity adequacy should be conducted functions as intended. Strong with information from senior in coordination with a banking governance and controls also help management on stress testing organization’s overall business strategy ensure that the framework contains core developments (including the process to and annual planning cycles. Results elements, from clearly defined stress design tests and develop scenarios) and should be refreshed in the event of testing objectives to recommended on stress testing results (including from major strategic decisions, or other actions. Importantly, strong governance individual tests, where material). As a changes that can materially impact provides critical review of elements of general matter, the board of directors is capital or liquidity. the stress testing framework, especially also responsible for monitoring An effective stress testing framework regarding key assumptions, effectiveness of the overall framework, should explore the potential for capital uncertainties, and limitations. A and using the results to inform their and liquidity problems to arise at the banking organization should ensure that decision-making process. same time or exacerbate one another. A the stress testing framework is not In addition, the final guidance banking organization’s liquidity stress isolated within a banking organization’s specifies that senior management analysis should explore situations in risk management function, but is firmly should, in consultation with the board which the banking organization may be integrated into business lines, capital of directors, review stress testing operating with a capital position that and asset-liability committees, and other activities and results with an exceeds regulatory minimums, but is decision-making bodies. appropriately critical eye to ensure that nonetheless viewed within the financial As part of their overall there is objective review and that the markets or by its counterparties as being responsibilities, a banking stress testing framework includes a of questionable viability. For its capital organization’s board and senior sufficient range of stress testing and liquidity stress tests, a banking management should establish a activities applied at the appropriate organization should articulate clearly its comprehensive, integrated and effective levels of the banking organization. objectives for a post-stress outcome, for stress testing framework that fits into Finally, in response to comments, the instance to remain a viable financial the broader risk management of the agencies have clarified that a banking market participant that is able to meet banking organization. Stress testing organization’s minimum annual review its existing and prospective obligations results should be used to inform the and assessment of the effectiveness of and commitments. board about alignment of the banking their stress testing framework should In response to comments received on organization’s risk profile with the ensure that stress testing coverage is the planning horizon for stress tests, the board’s chosen risk appetite, as well as comprehensive, tests are relevant and agencies clarified that while capital inform operating and strategic current, methodologies are sound, and stress tests should generally be decisions. Stress testing results should results are properly considered. be considered directly by the board and conducted with a horizon of at least two IV. Administrative Law Matters years, organizations should recognize senior management for decisions that the effects of certain stress relating to capital and liquidity A. Paperwork Reduction Act Analysis conditions could extend beyond that adequacy. Senior management, in In accordance with the Paperwork horizon. The agencies have also consultation with the board, should Reduction Act (‘‘PRA’’) of 1995 (44 clarified, in response to comments, that ensure that the stress testing framework U.S.C. 3506; 5 CFR Part 1320 Appendix consolidated stress tests should account includes a sufficient range of stress A.1), the agencies reviewed the final for the fact that certain legal entities testing activities applied at the guidance. The agencies may not conduct within the consolidated organization are appropriate levels of the banking or sponsor, and an organization is not required to meet regulatory capital organization (i.e., not just one required to respond to, an information requirements. enterprise-wide stress test). collection unless the information A commenter requested clarification Several commenters raised concerns collection displays a currently valid on whether capital and liquidity stress regarding the proposed responsibilities OMB control number. While the testing should be evaluated in unified or of a banking organization’s board of guidance is not being adopted as a rule, separate stress tests. The proposed directors with respect to stress tests and the agencies determined that certain guidance did not specify the precise the framework. One commenter aspects of the guidance may constitute manner in which capital and liquidity believed that the board of directors a collection of information and, stress tests should be performed. The should not review all stress test results, therefore, believed it was helpful to final guidance notes that assessing the but rather only those that were expected publish a burden estimate with the potential interaction of capital and to have a material impact on the overall guidance. In particular, the aspects of liquidity can be challenging and may organization. Another commenter the guidance that may constitute an not be possible within a single stress expressed the belief that the board of information collection are the test, so a banking organization should directors should be involved in provisions that state a banking explore several avenues to assess that providing direction and oversight organization should (i) have a stress interaction. In any case, the agencies regarding the banking organization’s testing framework that includes clearly believe that stress testing for both stress testing framework, but that the defined objectives, well-designed liquidity and capital adequacy should board of directors should not be scenarios tailored to the banking be an integral part of a banking expected to be involved directly in more organization’s business and risks, well- organization’s stress testing framework. operational aspects of the framework. documented assumptions, conceptually

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sound methodologies to assess potential OMB Control No: To be assigned by This information collection is impact on the banking organization’s OMB. authorized pursuant to the Federal financial condition, informative Estimated Number of Respondents: Deposit Insurance Act, (12 U.S.C. 1811 management reports, and recommended 154. et seq.) and the International Banking actions based on stress test results; and Estimated Time per Response: 260 Act (12 U.S.C. 3101 et seq.). The FDIC (ii) have policies and procedures for a hours. expects to review the policies and stress testing framework. The agencies Estimated Total Annual Burden procedures for stress testing as part of estimated that the above-described Hours: 40,040 hours. its supervisory process. To the extent information collections included in the FDIC: the FDIC collects information during an guidance would take respondents, on OMB Control No: To be assigned by examination of a banking organization, average, 260 hours each year. The OMB. confidential treatment may be afforded frequency of information collection is Estimated Number of Respondents: to the records under exemption 8 of the estimated to be annual. Respondents are 25. Freedom of Information Act (‘‘FOIA’’), banking organizations with more than Estimated Time per Response: 260 5 U.S.C. 552(b)(8).) $10 billion in total consolidated assets, hours. The agencies have a continuing Estimated Total Annual Burden as defined in the guidance. interest in the public’s opinions of Hours: 6500 hours. The agencies received three comment collections of information. At any time, OCC: For purposes of the PRA, this comments regarding the burden letters regarding the paperwork burden information collection will be titled of the guidance, stating that estimate, or any other aspect of this Recordkeeping and Disclosure collection of information, including implementation will require a multiple Provisions Associated with Stress of the 260 estimated hours. The agencies suggestions for reducing the burden, Testing Guidance. may be sent to: Communications emphasize that the guidance does not This information collection is implement the stress testing Division, Office of the Comptroller of authorized pursuant to the National the Currency, Mailstop 2–3, Attention: requirements imposed by the Dodd- Bank Act, (12 U.S.C. 1 et seq.; 12 U.S.C. 12 1557–NEW, 250 E Street SW., Frank Act or the Board’s capital plan 161) and the International Banking Act 13 Washington, DC 20219, by electronic rule, and does not otherwise impose (12 U.S.C. 3101 et seq.). The OCC mandatory stress testing requirements. mail to [email protected], or expects to review the policies and by fax to (202) 874–5274; Secretary, The burden of information collections procedures for stress testing as part of associated with mandatory stress tests Board of Governors of the Federal its supervisory process. To the extent Reserve System, 20th and C Streets will be accounted for in the respective the OCC collects information during an rules that implement those NW., Washington, DC 20551; Executive examination of a banking organization, Secretary, Attention: Comments, FDIC, requirements. In addition, the agencies confidential treatment may be afforded believe that in some respects, the 550 17th Street NW., Washington, DC to the records under exemption 8 of the 20429; and to the Office of Management information collection elements of this Freedom of Information Act (‘‘FOIA’’), guidance augment certain expectations and Budget, New Executive Office 5 U.S.C. 552(b)(8). Building, Washington, DC 20503. that already are in place relative to Board: For purposes of the PRA, this certain existing supervisory guidance. information collection will be titled B. Regulatory Flexibility Act Analysis The burden estimates for this guidance Recordkeeping and Disclosure Board: take into consideration only those Provisions Associated With Stress While the guidance is not being collections of information, such as Testing Guidance. The agency form adopted as a rule, the Board has documentation of policies and number for the collection is FR 4202. considered the potential impact of the procedures and relevant reports, that are The agency control number for this new guidance on small banking specific to this guidance. Based on these collection will be assigned by OMB. organizations in accordance with the factors, the agencies believe the burden This information collection is Regulatory Flexibility Act (5 U.S.C. estimates included in the proposed authorized pursuant to sections 11(a), 603(b)). Based on its analysis and for the guidance continue to be appropriate. 11(i), 25, and 25A of the Federal Reserve reasons stated below, the Board believes Title: Recordkeeping and Disclosure Act (12 U.S.C. 248(a), 248(i), 602, and that the final guidance will not have a Provisions Associated with Stress 611), section 5 of the Bank Holding significant economic impact on a Testing Guidance. Company Act (12 U.S.C. 1844), and substantial number of small entities. Frequency of Response: Annual. section 7(c) of the International Banking Nevertheless, the Board is publishing a Affected Public: Banking Act (12 U.S.C. 3105(c)). The Board regulatory flexibility analysis. organizations with more than $10 expects to review the policies and For the reason discussed in the billion in total consolidated assets. procedures for stress testing as part of Supplementary Information above, the OCC: the Board’s supervisory process. To the Board is issuing the guidance to OMB Control No: To be assigned by extent the Board collects information emphasize the importance of stress OMB. during an examination of a banking testing as an ongoing risk management Estimated Number of Respondents: organization, the confidentiality of any practice to support a banking 62. such information submitted to the Board organization’s forward-looking Estimated Time per Response: 260 will be determined in accordance with assessment of risks in order to better hours. the Freedom of Information Act equip such organization to address a Estimated Total Annual Burden (5 U.S.C. 552(b)(8)) Board’s Rules range of adverse outcomes. The Hours: 16,120 hours Regarding Availability of Information guidance provides broad principles a Board: (12 CFR part 261). banking organization should follow in Agency Information Collection FDIC: For purposes of the PRA, this conducting its stress testing activities, Number: FR 4202. information collection will be titled such as ensuring that those activities fit Recordkeeping and Disclosure into the organization’s overall risk 12 77 FR 594 (January 5, 2012). Provisions Associated With Stress management program. The guidance 13 (Reg Y–13; OMB No. 7100–0342). Testing Guidance. outlines broad principles for a

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satisfactory stress testing framework, 2009 financial crisis underscored the savings associations and insured and describes the manner in which a need for banking organizations to branches of foreign banks.3 banking organization should employ incorporate stress testing into their risk The guidance does not apply to any stress testing as an integral component management practices, demonstrating supervised institution below the of risk management. that banking organizations unprepared designated asset threshold. Certain other Under regulations issued by the Small for stressful events and circumstances existing supervisory guidance that Business Administration (‘‘SBA’’), a can suffer acute threats to their financial applies to all supervised institutions small banking organization is defined as condition and viability.2 The Federal discusses the use of stress testing as a a banking organization with total assets Reserve, the Office of the Comptroller of tool in certain aspects of risk of $175 million or less. See 13 CFR the Currency, and the Federal Deposit management, such as for commercial 121.201. The final guidance applies to real estate concentrations, liquidity risk Insurance Corporation (collectively, the banking organizations supervised by the management, and interest-rate risk ‘‘agencies’’) are issuing this guidance to agencies with more than $10 billion in management. However, no institution at emphasize the importance of stress total consolidated assets, including state or below $10 billion in total member banks, bank holding testing as an ongoing risk management consolidated assets is subject to this companies, savings and loan holding practice that supports banking final guidance. companies, and U.S. branches and organizations’ forward-looking Building upon previously issued agencies of foreign banking assessment of risks and better equips supervisory guidance that discusses the organizations. Banking organizations them to address a range of adverse uses and merits of stress testing in that are subject to the guidance therefore outcomes. specific areas of risk management, this substantially exceed the $175 million This joint guidance is applicable to all guidance provides broad principles a total asset threshold at which a banking institutions supervised by the agencies banking organization should follow in organization is considered a small with more than $10 billion in total conducting its stress testing activities, banking organization under SBA consolidated assets. Specifically, with such as ensuring that those activities fit regulations. In light of the foregoing, the respect to the OCC, these banking into the organization’s overall risk Board does not believe that the guidance organizations include national banking management program. The guidance has a significant economic impact on a associations, federal savings outlines broad principles for a substantial number of small entities. associations, and federal branches and satisfactory stress testing framework and describes the manner in which stress V. Final Supervisory Guidance agencies; with respect to the Board, testing should be employed as an these banking organizations include The text of the final supervisory integral component of risk management guidance is as follows: state member banks, bank holding that is applicable at various levels of companies, savings and loan holding Office of the Comptroller of the aggregation within a banking companies, and all other institutions for Currency organization, as well as for contributing which the Federal Reserve is the to capital and liquidity planning.4 Federal Reserve System primary federal supervisor; with respect While the guidance is not intended to Federal Deposit Insurance Corporation to the FDIC, these banking organizations provide detailed instructions for include state nonmember banks, state Guidance on Stress Testing for Banking conducting stress testing for any Organizations With Total Consolidated particular risk or business area, the Assets of More Than $10 Billion boarddocs/srletters/2009/SR0904.htm (hereinafter document describes several types of SR 09–04); Supervision and Regulation Letter SR stress testing activities and how they I. Introduction 07–1, OCC Bulletin 2006–46 or FDIC FIL–104–2006, Interagency Guidance on Concentrations in may be most appropriately used by All banking organizations should Commercial Real Estate (January 4, 2007), available banking organizations. have the capacity to understand fully at http://www.federalreserve.gov/boarddocs/ II. Overview of Stress Testing their risks and the potential impact of srletters/2007/SR0701.htm; Supervision and Regulation Letter SR 01–4, OCC Bulletin 2001–6 or Framework stressful events and circumstances on FDIC FIL–9–2001, Subprime Lending (January 31, their financial condition. The U.S. 2001), available at http://www.federalreserve.gov/ For purposes of this guidance, stress federal banking agencies have boarddocs/srletters/2001/SR0104.htm; Supervision testing refers to exercises used to previously highlighted the use of stress and Regulation Letter SR 99–18, Assessing Capital conduct a forward-looking assessment testing as a means to better understand Adequacy in Relation to Risk at Large Banking of the potential impact of various Organizations and Others with Complex Risk the range of a banking organization’s Profiles (July 1, 1999), available at http:// adverse events and circumstances on a potential risk exposures.1 The 2007– www.federalreserve.gov/boarddocs/srletters/1999/ banking organization. Stress testing SR9918 (hereinafter SR 99–18); Supervisory occurs at various levels of aggregation, 1 See, e.g., Supervision and Regulation Letter SR Guidance: Supervisory Review Process of Capital including on an enterprise-wide basis. 10–6, OCC Bulletin 2010–13 or FDIC Financial Adequacy (Pillar 2) Related to the Implementation As outlined in section IV, there are of the Basel II Advanced Capital Framework, 73 FR Institution Letter (FIL) 13–2010, Interagency Policy several approaches and applications for Statement on Funding and Liquidity Risk 44620 (July 31, 2008) (hereinafter Supervisory Management (March 17, 2010), available at http:// Review Process of Capital Adequacy); The www.federalreserve.gov/boarddocs/srletters/2010/ Supervisory Capital Assessment Program: Overview 3 Given the unique structure of U.S. branches and sr1006.htm (hereinafter Funding and Liquidity Risk of Results (May 7, 2009), available at http:// agencies of foreign banking organizations, the Management Policy Statement); Supervision and www.federalreserve.gov/newsevents/press/bcreg/ agencies recognize that certain aspects of this Regulation Letter SR 10–1, OCC Bulletin 2010–1 or bcreg20090507a1.pdf; Comprehensive Capital guidance may not apply to those U.S. branches and FDIC FIL–2–2010, Interagency Advisory on Interest Analysis and Review: Objectives and Overview agencies (such as the portions related to capital Rate Risk (January 11, 2010), available at http:// (March 18, 2011), available at http:// stress testing) or may apply differently (such as the www.federalreserve.gov/boarddocs/srletters/2010/ www.federalreserve.gov/newsevents/press/bcreg/ portions related to governance and controls). sr1001.htm (hereinafter Interest Rate Risk bcreg20110318a1.pdf; and 12 CFR 225.8. Supervisors can work with these entities on a case- Advisory); Supervision and Regulation Letter SR 2 The Dodd-Frank Wall Street Reform and by-case basis to identify the portions of the 09–4, Applying Supervisory Guidance and Consumer Protection Act (Pub. L. 111–203, 124 guidance that are most relevant for them. Regulations on the Payment of Dividends, Stock Stat. 1376) requires financial organizations with 4 While capital and liquidity stress tests may be Redemptions, and Stock Repurchases at Bank more than $10 billion in total consolidated assets among the most prominent, other types of stress Holding Companies (revised March 27, 2009), to conduct a stress test at least annually. See testing exercises that use different metrics should available at http://www.federalreserve.gov/ generally 12 U.S.C. 5365(i)(2). be conducted.

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stress testing and a banking organization systemic stress events and also address non-contractual sources of should consider the use of each in its circumstances that are based on risks, such as those related to a banking stress testing framework. historical experience as well as on organization’s reputation. Appropriate An effective stress testing framework hypothetical occurrences that could coverage is important as stress testing provides a comprehensive, integrated, have an adverse impact on a banking results could give a false sense of and forward-looking set of activities for organization’s operations and financial comfort if certain portfolios, exposures, a banking organization to employ along condition. Banking organizations liabilities, or business line activities are with other practices in order to assist in subject to this guidance should develop not included. Stress testing exercises the identification and measurement of policies on reviewing and assessing the should be part of a banking its material risks and vulnerabilities, effectiveness of their stress testing organization’s regular risk identification including those that may manifest frameworks, and use those policies at and measurement activities. For themselves during stressful economic or least annually to assess the effectiveness example, in assessing credit risk a financial environments, or arise from of their frameworks. Such assessments banking organization should evaluate firm-specific adverse events. Such a should help to ensure that stress testing the potential impact of adverse framework should supplement other coverage is comprehensive, tests are outcomes, such as an economic quantitative risk management practices, relevant and current, methodologies are downturn or declining asset values, on such as those that rely primarily on sound, and results are properly the condition of its borrowers and statistical estimates of risk or loss considered. counterparties, and on the value of any estimates based on historical data, as supporting collateral. As another III. General Stress Testing Principles well as qualitative practices. In this example, in assessing interest-rate risk, manner, stress testing can assist in A banking organization should banking organizations should analyze highlighting unidentified or under- develop and implement an effective the effects of significant interest rate assessed risk concentrations and stress testing framework as part of its shocks or other yield-curve movements. interrelationships and their potential broader risk management and An effective stress testing framework impact on the banking organization governance processes. The framework should be applied at various levels in during times of stress.5 should include several activities and the banking organization, such as A banking organization should exercises, and not just rely on any single business line, portfolio, and risk type, as develop and implement its stress testing test or type of test, since every stress test well as on an enterprise-wide basis. In framework in a manner commensurate has limitations and relies on certain many cases, stress testing may be more with its size, complexity, business assumptions. effective at business line and portfolio activities, and overall risk profile. Its The uses of a banking organization’s levels, as a higher level of aggregation stress testing framework should include stress testing framework should include, may cloud or underestimate the clearly defined objectives, well- but are not limited to, augmenting risk potential impact of adverse outcomes on designed scenarios tailored to the identification and measurement; a banking organization’s financial banking organization’s business and estimating business line revenues and condition. In some cases, stress testing risks, well-documented assumptions, losses and informing business line can also be applied to individual sound methodologies to assess potential strategies; identifying vulnerabilities, exposures or instruments. Each stress impact on the banking organization’s assessing the potential impact from test should be tailored to the relevant financial condition, informative those vulnerabilities, and identifying level of aggregation, capturing critical management reports, ongoing and appropriate actions; assessing capital risk drivers, internal and external effective review of stress testing adequacy and enhancing capital influences, and other key considerations processes, and recommended actions planning; assessing liquidity adequacy at the relevant level. based on stress test results. Stress and informing contingency funding Stress testing should capture the testing should incorporate the use of plans; contributing to strategic planning; interplay among different exposures, high-quality data and appropriate enabling senior management to better activities, and risks and their combined assumptions about the performance of integrate strategy, risk management, and effects. While stress testing several types the institution under stress to ensure capital and liquidity planning decisions; of risks or business lines simultaneously that the outputs are credible and can be and assisting with recovery and may prove operationally challenging, a used to support decision-making. resolution planning. This section banking organization should aim to Importantly, a banking organization describes general principles that a identify common risk drivers across risk should have a sound governance and banking organization should apply in types and business lines that can control infrastructure with objective, implementing such a framework. adversely affect its financial condition. critical review to ensure the stress Principle 1: A banking organization’s Accordingly, stress tests should provide testing framework is functioning as stress testing framework should include a banking organization with the ability intended. activities and exercises that are tailored to identify potential concentrations— A stress testing framework should to and sufficiently capture the banking including those that may not be readily allow a banking organization to conduct organization’s exposures, activities, and observable during benign periods and consistent, repeatable exercises that risks. whose sensitivity to a common set of focus on its material exposures, An effective stress testing framework factors is apparent only during times of activities, risks, and strategies, and also covers a banking organization’s full set stress—and to assess the impact of conduct ad hoc scenarios as needed. of material exposures, activities, and identified concentrations of exposures, The framework should consider the risks, whether on or off the balance activities, and risks within and across impact of both firm-specific and sheet, based on effective enterprise-wide portfolios and business lines and on the risk identification and assessment. Risks organization as a whole. 5 For purposes of this guidance, the term addressed in a firm’s stress testing Stress testing should be tailored to the ‘‘concentrations’’ refers to groups of exposures and/ framework may include (but are not banking organization’s idiosyncrasies or activities that have the potential to produce losses large enough to bring about a material change limited to) credit, market, operational, and specific business mix and include in a banking organization’s risk profile or financial interest-rate, liquidity, country, and all major business lines and significant condition. strategic risk. The framework should individual counterparties. For example,

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a banking organization that is complexity of any given test does not events, macroeconomic and financial geographically concentrated may undermine its integrity, usefulness, or market developments, or some determine that a certain segment of its clarity. In some cases, relatively simple combination of these events. A banking business may be more adversely affected tests can be very useful and informative. organization should also ensure that its by shocks to economic activity at the Additionally, effective stress testing MIS are capable of incorporating state or local level than by a severe relies on high-quality input data and relatively rapid changes in exposures, national recession. On the other hand, if information to produce credible activities, and risks. the banking organization has significant outcomes. A banking organization While stress testing should utilize global operations, it should consider should ensure that it has readily available historical information, a scenarios that have an international available data and other information for banking organization should look component and stress conditions that the types of stress tests it uses, beyond assumptions based only on could affect the different aspects of its including key variables that drive historical data and challenge operations in different ways, as well as performance. In addition, a banking conventional assumptions. A banking conditions that could adversely affect organization should have appropriate organization should ensure that it is not all of its operations at the same time. management information systems (MIS) constrained by past experience and that A banking organization should use its and data processes that enable it to it considers multiple scenarios, even stress testing framework to determine collect, sort, aggregate, and update data scenarios that have not occurred in the whether exposures, activities, and risks and other information efficiently and recent past or during the banking under normal and stressed conditions reliably within business lines and across organization’s history. For example, a are aligned with the banking the banking organization for use in banking organization should not assume organization’s risk appetite.6 A banking stress testing. If certain data and that if it has suffered no or minimal organization can use stress testing to information are not current or not losses in a certain business line or help inform decisions about its strategic available, or if proxies are used, a product that such a pattern will direction and/or risk appetite by better banking organization should analyze the continue. Structural changes in understanding the risks from its stress test outputs with an customer, product, and financial exposures or of engaging in certain understanding of those data limitations. markets can present unprecedented business practices. For example, if a A banking organization should also situations for a banking organization. A banking organization pursues a business document the assumptions used in its banking organization with any type of strategy for a new or modified product, stress tests and note the degree of significant concentration can be and the banking organization does not uncertainty that may be incorporated particularly vulnerable to rapid changes have long-standing experience with that into the tools used for stress testing. In in economic and financial conditions product or lacks extensive data, the some cases, it may be appropriate to and should try to identify and better banking organization can use stress present and analyze test results not just understand the impact of those testing to identify the product’s in terms of point estimates, but also vulnerabilities in advance. For example, potential downsides and unanticipated including the potential margin of error the risks related to residential mortgages risks. Scenarios used in a banking or statistical uncertainty around the were underestimated for a number of organization’s stress tests should be estimates. Furthermore, almost all stress years leading up to the 2007–2009 relevant to the direction and strategy set tests, including well-developed financial crisis by a large number of by its board of directors, as well as quantitative tests supported by high- banking organizations, and those risks sufficiently severe to be credible to quality data, employ a certain amount of eventually affected the banking internal and external stakeholders. expert or business judgment, and the organizations in a variety of ways. Principle 2: An effective stress testing role and impact of such judgment Effective stress testing can help a framework employs multiple should be clearly documented. In some banking organization identify any such conceptually sound stress testing cases, when credible data are lacking concentrations and help understand the activities and approaches. and more quantitative tests are potential impact of several key aspects All measures of risk, including stress operationally challenging or in the early of the business being exposed to tests, have an element of uncertainty stages of development, a banking common drivers. due to assumptions, limitations, and organization may choose to employ Stress testing should be conducted other factors associated with using past more qualitatively based tests, provided over various relevant time horizons to performance measures and forward- that the tests are properly documented adequately capture both conditions that looking estimates. Banking and their assumptions are transparent. may materialize in the near term and organizations should, therefore, use Regardless of the type of stress tests adverse situations that take longer to multiple stress testing activities and used, a banking organization should develop. For example, when a banking approaches (consistent with section IV), understand and clearly document all organization stress tests a portfolio for and ensure that each is conceptually assumptions, uncertainties, and market and credit risks simultaneously, sound. Stress tests usually vary in limitations, and provide that it should consider that certain credit design and complexity, including the information to users of the stress testing risk losses may take longer to number of factors employed and the results. materialize than market risk losses, and degree of stress applied. A banking Principle 3: An effective stress testing also that the severity and speed of mark- organization should ensure that the framework is forward-looking and to-market losses may create significant flexible. vulnerabilities for the firm, even if a 6 For purposes of this guidance, risk appetite is A stress testing framework should be more fundamental analysis of how defined as the level and type of risk an organization sufficiently dynamic and flexible to realized losses may play out over time is able and willing to assume in its exposures and business activities, given its business objectives and incorporate changes in a banking seems to show less threatening results. obligations to stakeholders. See Senior Supervisors organization’s on- and off-balance-sheet A banking organization should carefully Group, Observations on Developments in Risk activities, portfolio composition, asset consider the incremental and Appetite Frameworks and IT Infrastructure quality, operating environment, cumulative effects of stress conditions, (December 23, 2010), available at http:// www.newyorkfed.org/newsevents/news/banking/ business strategy, and other risks that particularly with respect to potential 2010/an101223.pdf. may arise over time from firm-specific interactions among exposures, activities,

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and risks and possible second-order or to appropriate levels within the banking recommended actions. Importantly, ‘‘knock-on’’ effects. organization to foster dialogue around strong governance provides critical In addition to conducting formal, stress testing, keep the board of review of elements of the stress testing routine stress tests, a banking directors, management, and staff framework, especially regarding key organization should have the flexibility apprised, and to inform stress testing assumptions, uncertainties, and to conduct new or ad hoc stress tests in approaches, results, and decisions in limitations. A banking organization a timely manner to address rapidly other areas of the banking organization. should ensure that the stress testing emerging risks. These less routine tests A banking organization should maintain framework is not isolated within a usually can be conducted in a short an internal summary of test results to banking organization’s risk management amount of time and may be simpler and document at a high level the range of its function, but is firmly integrated into less extensive than a banking stress testing activities and outcomes, as business lines, capital and asset-liability organization’s more formal, regular well as proposed follow-up actions. committees, and other decision-making tests. However, for its ad hoc tests a Regular review of stress test results can bodies. Along those lines, the board of banking organization should still have be an important part of a banking directors and senior management the capacity to bring together organization’s ability over time to track should play key roles in ensuring strong approximated information on risks, the impact of ongoing business governance and controls. The extent and exposures, and activities and assess activities, changes in exposures, varying sophistication of a banking their impact. economic conditions, and market organization’s governance over its stress More broadly, a banking organization movements on its financial condition. In testing framework should align with the should continue updating and addition, management should review extent and sophistication of that maintaining its stress testing framework stress testing activities on a regular basis framework. Additional details regarding in light of new risks, better to determine, among other things, the governance and controls of an understanding of the banking validity of the assumptions, the severity organization’s stress testing framework organization’s exposures and activities, of tests, the robustness of the estimates, are outlined in section VI. new stress testing techniques, and any the performance of any underlying IV. Stress Testing Approaches and changes in its operating structure and models, and the stability and Applications environment. A banking organization’s reasonableness of the results. stress testing development should be Stress test results should inform This section discusses some general iterative, with ongoing adjustments and analysis and decision-making related to types of stress testing approaches and refinements to better calibrate the tests business strategies, limits, risk profile, applications. For any type of stress test, to provide current and relevant and other aspects of risk management, banking organizations should indicate information. Banking organizations consistent with the banking the specific purpose and the focus of the should document the ongoing organization’s established risk appetite. test. Defining the scope of a given stress development of their stress testing A banking organization should review test is also important, whether it applies practices. the results of its various stress tests with at the portfolio, business line, risk type, Principle 4: Stress test results should the strengths and limitations of each test or enterprise-wide level, or even just for be clear, actionable, well supported, and in mind (consistent with Principle 2), an individual exposure or counterparty. inform decision-making. determine which results should be Based on the purpose and scope of the Stress testing should incorporate given greater or lesser weight, analyze test, different stress testing techniques measures that adequately and effectively the combined impact of its tests, and are most useful. Thus, a banking convey results of the impact of adverse then evaluate potential courses of action organization should employ several outcomes. Such measures may include, based on that analysis. A banking approaches and applications; these for example, changes to asset values, organization may decide to maintain its might include scenario analysis, accounting and economic profit and current course based on test results; sensitivity analysis, enterprise-wide loss, revenue streams, liquidity levels, indeed, the results of highly severe stress testing, and reverse stress testing. cash flows, regulatory capital, risk- stress tests need not always indicate that Consistent with Principle 1, banking weighted assets, the loan loss immediate action has to be taken. organizations should apply these allowance, internal capital estimates, Wherever possible, benchmarking or commensurate with their size, levels of problem assets, breaches in other comparative analysis should be complexity, and business profile, and covenants or key trigger levels, or other used to evaluate the stress testing results may not need to incorporate all of the relevant measures. Stress test measures relative to other tools and measures— details described below. Consistent with should be tailored to the type of test and both internal and external to the Principle 3, banking organizations the particular level at which the test is banking organization—to provide should also recognize that stress testing applied (for example, at the business proper context and a check on results. approaches will evolve over time and line or risk level). Some stress tests may Principle 5: An organization’s stress they should update their practices as require using a range of measures to testing framework should include strong needed. evaluate the full impact of certain governance and effective internal events, such as a severe systemic event. controls. Scenario Analysis In addition, all stress test results should Similar to other aspects of its risk Scenario analysis refers to a type of be accompanied by descriptive and management, a banking organization’s stress testing in which a banking qualitative information (such as key stress testing framework will be organization applies historical or assumptions and limitations) to allow effective only if it is subject to strong hypothetical scenarios to assess the users to interpret the exercises in governance and effective internal impact of various events and context. The analysis and the process controls to ensure the framework is circumstances, including extreme ones. should be well documented so that functioning as intended. Strong Scenarios usually involve some kind of stress testing processes can be replicated governance and effective internal coherent, logical narrative or ‘‘story’’ as if need be. controls help ensure that the framework to why certain events and circumstances A banking organization should contains core elements, from clearly can occur and in which combination regularly communicate stress test results defined stress testing objectives to and order, such as a severe recession,

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failure of a major counterparty, loss of of other risk measurement practices. For performance and linkage of underlying major clients, natural or man-made example, market risk VaR models cash flows. Sensitivity analysis should disaster, localized economic downturn, generally assume liquid markets with be conducted periodically due to disruptions in funding or capital known prices. Scenario analysis could potential changes in a banking markets, or a sudden change in interest shed light on the effects of a breakdown organization’s exposures, activities, rates brought about by unfavorable in liquidity and of valuation difficulties. operating environment, or the inflation developments. Scenario One of the key challenges with relationship of variables to one another. analysis can be applied at various levels scenario analysis is to translate a Sensitivity analysis can also help to of the banking organization, such as scenario into balance sheet impact, assess a combined impact on a banking within individual business lines to help changes in risk measures, potential organization of several variables, identify factors that could harm those losses, or other measures of adverse parameters, factors, or drivers. For business lines most. financial impact, which would vary example, a banking organization could Stress scenarios should reflect a depending on the test design and the better understand the impact on its banking organization’s unique type of scenario used. For some aspects credit losses from a combined increase vulnerabilities to factors that affect its of scenario analysis, banking in default rates and a decrease in exposures, activities, and risks. For organizations may use econometric or collateral values. A banking example, if a banking organization is similar types of analysis to estimate a organization could also explore the concentrated in a particular line of relationship between some underlying impact of highly adverse capitalization business, such as commercial real estate factors or drivers and risk estimates or rates, declines in net operating income, or residential mortgage lending, it loss projections based on a given data and reductions in collateral when would be appropriate to explore the set, and then extrapolate to see the evaluating its risks from commercial impact of a downturn in those particular impact of more severe inputs. Care real estate exposures. Sensitivity market segments. Similarly, a banking should be taken not to make analysis can be especially useful organization with lending assumptions that relationships from because it is not necessarily concentrations to oil and gas companies benign or mildly adverse times will accompanied by a particular narrative or should include scenarios related to the hold during more severe times or that scenario; that is, sensitivity analysis can energy sector. Other relevant factors to estimating such relationships is provide banking organizations more be considered in scenario analysis relate relatively straightforward. For example, flexibility to explore the impact of to operational, reputational and legal linear relationships between risk drivers potential stresses that they may not be risks to a banking organization, such as and losses may become nonlinear able to capture in designed scenarios. significant events of fraud or litigation, during times of stress. In addition, Furthermore, banking organizations may or a situation when a banking organizations should recognize that decide to conduct sensitivity analysis of organization feels compelled to provide there can be multiple permutations of their scenarios, i.e., choosing different support to an affiliate or provide other outcomes from just a few key risk levels or paths of variables to types of non-contractual support to drivers. understand the sensitivities of choices avoid reputational damage. Scenarios made during scenario design. For Sensitivity Analysis should be internally consistent and instance, banking organizations may portray realistic outcomes based on Sensitivity analysis refers to a banking decide to apply a few different interest- underlying relationships among organization’s assessment of its rate paths for a given scenario. variables, and should include only those exposures, activities, and risks when Enterprise-Wide Stress Testing mitigating developments that are certain variables, parameters, and inputs consistent with the scenario. are ‘‘stressed’’ or ‘‘shocked.’’ A key goal Enterprise-wide stress testing is an Additionally, a banking organization of sensitivity analysis is to test the application of stress testing that should consider the best manner to try impact of assumptions on outcomes. involves assessing the impact of certain to capture combinations of stressful Generally, sensitivity analysis differs specified scenarios on the banking events and circumstances, including from scenario analysis in that it involves organization as a whole, particularly second-order and ‘‘knock-on’’ effects. changing variables, parameters, or with regard to capital and liquidity. As Ultimately, a banking organization inputs without an explicit underlying is the case with scenario analysis more should select and design multiple reason or narrative, in order to explore generally, enterprise-wide stress testing scenarios that are relevant to its profile what occurs under a range of inputs and involves robust scenario design and and make intuitive sense, use enough at extreme or highly adverse levels. In effective translation of scenarios into scenarios to explore the range of this type of analysis a banking measures of impact. Enterprise-wide potential outcomes, and ensure that the organization may realize, for example, stress tests can help a banking scenarios continue to be timely and that a given relationship is much more organization in its efforts to assess the relevant. difficult to estimate at extreme levels. impact of its full set of risks under A banking organization may apply A banking organization may apply adverse events and circumstances, but scenario analysis within the context of sensitivity analysis at various levels of should be supplemented with other its existing risk measurement tools (e.g., aggregation to estimate the impact from stress tests and other risk measurement the impact of a severe decline in market a change in one or more key variables. tools given inherent limitations in prices on a banking organization’s The results may help a banking capturing all risks and all adverse value-at-risk (VaR) measure) or use it as organization better understand the range outcomes in one test. an alternative, supplemental measure. of outcomes from some of its models, Scenario design for enterprise-wide For instance, a banking organization such as developing a distribution of stress testing involves developing may use scenario analysis to measure output based on a variety of extreme scenarios that affect the banking the impact of a severe financial market inputs. For example, a banking organization as a whole that stem from disturbance and compare those results organization may choose to calculate a macroeconomic, market-wide, and/or to what is produced by its VaR or other range of changes to a structured firm-specific events. These scenarios measures. This type of scenario analysis security’s overall value using a range of should incorporate the potential should account for known shortcomings different assumptions about the simultaneous occurrence of both firm-

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specific and macroeconomic and objective is to see how the banking could represent potential blind spots. market-wide events, considering organization as a whole will be affected Reverse stress testing can highlight system-wide interactions and feedback by a common scenario. previously unacknowledged sources of effects. For example, price shocks may risk that could be mitigated through Reverse Stress Testing lead to significant portfolio losses, rising enhanced risk management. funding gaps, a ratings downgrade, and Reverse stress testing is a tool that V. Stress Testing for Assessing the diminished access to funding. In allows a banking organization to assume Adequacy of Capital and Liquidity general, it is a good practice to consult a known adverse outcome, such as with a large set of individuals within suffering a credit loss that breaches There are many uses of stress testing the banking organization—in various regulatory capital ratios or suffering within banking organizations. business lines, research and risk areas— severe liquidity constraints that render Prominent among these are stress tests to gain a wide perspective on how it unable to meet its obligations, and designed to assess the adequacy of enterprise-wide scenarios should be then deduce the types of events that capital and liquidity. Given the designed and to ensure that the could lead to such an outcome. This importance of capital and liquidity to a scenarios capture the relevant aspects of type of stress testing may help a banking banking organization’s viability, stress the banking organization’s business and organization to consider scenarios testing should be applied in these two risks. Banking organizations should also beyond its normal business expectations areas in particular, including an conduct scenarios of varying severity to and see the impact of severe systemic evaluation of the interaction between gauge the relative impact. At least some effects on the banking organization. It capital and liquidity and the potential scenarios should be of sufficient also allows a banking organization to for both to become impaired at the same severity to challenge the viability of the challenge common assumptions about time. Depletions and shortages of capital banking organization, and should its performance and expected mitigation or liquidity can cause a banking include instantaneous market shocks strategies. organization to no longer perform and stressful periods of extended Reverse stress testing helps to explore effectively as a financial intermediary, duration (e.g., not just a one- or two- so-called ‘‘break the bank’’ situations, be viewed by its counterparties as no quarter shock after which conditions allowing a banking organization to set longer viable, become insolvent, or return to normal). aside the issue of estimating the diminish its capacity to meet legal and Selection of scenario variables is likelihood of severe events and to focus financial obligations. A banking important for enterprise-wide tests, more on what kinds of events could organization’s capital and liquidity because these variables generally serve threaten the viability of the banking stress testing should consider how as the link between the overall narrative organization. This type of stress testing losses, earnings, cash flows, capital, and of the scenario and tangible impact on also helps a banking organization liquidity would be affected in an the banking organization as a whole. For evaluate the combined effect of several environment in which multiple risks instance, in aiming to capture the types of extreme events and manifest themselves at the same time, combined impact of a severe recession circumstances that might threaten the for example, an increase in credit losses and a financial market downturn, a survival of the banking organization, during an adverse interest-rate banking organization may choose a set even if in isolation each of the effects environment. Additionally, banking of variables such as changes in gross might be manageable. For instance, organizations should recognize that at domestic product (GDP), unemployment reverse stress testing may help a the end of the time horizon considered rate, interest rates, stock market levels, banking organization recognize that a by a given stress test, they may still have or home price levels. However, certain level of unemployment would substantial residual risks or problem particularly when assessing the impact have a severe impact on credit losses, exposures that may continue to pressure on the whole banking organization, that a market disturbance could create capital and liquidity resources. using a large number of variables can additional losses and result in rising Stress testing for capital and liquidity make a test more cumbersome and funding costs, and that a firm-specific adequacy should be conducted in complicated—so a banking organization case of fraud would cause even further coordination with a banking may also benefit from simpler scenarios losses and reputational impact that organization’s overall strategy and or from those with fewer variables. could threaten a banking organization’s annual planning cycles. Results should Banking organizations should balance viability. In some cases, reverse stress be refreshed in the event of major the comprehensiveness of contributing tests could reveal to a banking strategic decisions, or other decisions variables and tractability of the exercise. organization that ‘‘breaking the bank’’ is that can materially impact capital or As with scenario analysis generally, not as remote an outcome as originally liquidity. Banking organizations should translating scenarios into tangible thought. conduct stress testing for capital and effects on the banking organization as a Given the numerous potential threats liquidity adequacy periodically. whole presents certain challenges. A to a banking organization’s viability, the banking organization should identify organization should ensure that it Capital Stress Testing appropriate and meaningful focuses first on those scenarios that Capital stress testing results can serve mechanisms for translating scenarios have the largest firm-wide impact, such as a useful tool to support a banking into relevant internal risk parameters as insolvency or illiquidity, but also on organization’s capital planning and that provide a firm-wide view of risks those that seem most imminent given corporate governance.7 They may help a and understanding of how these risks the current environment. Focusing on banking organization better understand are translated into loss estimates. Not all the most prominent vulnerabilities its vulnerabilities and evaluate the business areas are equally affected by a helps a banking organization prioritize impact of adverse outcomes on its given scenario, and problems in one its choice of scenarios for reverse stress business area can have effects on other testing. However, a banking 7 In this manner, stress testing can form an units. However, for an enterprise-wide organization should also consider a integral part of an organization’s internal capital adequacy process, consistent with supervisory test, assumptions across business lines wider range of possible scenarios that standards outlined in SR 09–4, SR 99–18, and and risk areas should remain constant could jeopardize the viability of the Supervisory Review Process of Capital Adequacy, for the chosen scenario, since the banking organization, exploring what supra note 12.

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capital position and ensure that the organization is not encountering window, or other secured wholesale banking organization holds adequate problems.9 Where material relative to funding sources. capital given its business model, the banking organization’s capital, Liquidity stress testing should explore including the complexity of its activities counterparty exposures should also be the potential impact of adverse and its risk profile. Capital stress testing included in capital stress testing. developments that may affect market complements a banking organization’s Enterprise-wide stress testing, as and asset liquidity, including the regulatory capital analysis 8 by described in section IV, should be an freezing up of credit and funding providing a forward-looking assessment integral part of a banking organization’s markets, and the corresponding impact of capital adequacy, usually with a capital stress testing.10 Such enterprise- on the banking organization. Such tests forecast horizon of at least two years wide testing should include pro-forma can also help identify the conditions (with the recognition that the effects of estimates of not only potential losses under which balance sheets might certain stress conditions could extend and resources available to absorb losses, expand, thus creating additional beyond two years for some stress tests), but also potential planned capital funding needs (e.g., through accelerated and highlighting the potential adverse actions (such as dividends or share drawdowns on unfunded effects on capital levels and ratios from repurchases) that would affect the commitments). These tests also help risks not fully captured in regulatory banking organization’s capital position, determine whether the banking capital requirements. It should also be including regulatory and other capital organization has a sufficient liquidity used to help a banking organization ratios. There should also be buffer to meet various types of future assess the quality and composition of consideration of the impact on the liquidity demands under stressful capital and its ability to absorb losses. banking organization’s allowance for conditions. In this regard, liquidity Stress testing can aid capital loan and lease losses and other relevant stress testing should be an integral part contingency planning by helping financial metrics. Even with very of the development and maintenance of management identify exposures or risks effective enterprise-wide tests, banking a banking organization’s contingency in advance that would need to be organizations should use capital stress funding planning. Liquidity stress reduced and actions that could be taken testing in conjunction with other testing should include enterprise-wide to bolster capital levels or otherwise internal approaches (in addition to tests as discussed in section IV, but maintain capital adequacy, as well as regulatory measures) for assessing should also be applied, as appropriate, actions that in times of stress might not capital adequacy, such as those that rely at lower levels of the banking be possible—such as raising capital. primarily on statistical estimates of risk organization, and in particular should Capital stress testing should include or loss estimates based on historical account for regulatory or supervisory exercises that analyze the potential for data. restrictions on inter-affiliate funding changes in earnings, losses, reserves, and asset transfers. As with capital Liquidity Stress Testing and other potential effects on capital stress testing, banking organizations under a variety of stressful A banking organization should also may need to conduct liquidity stress circumstances. Such testing should also conduct stress testing for liquidity tests at both the consolidated and capture any potential change in risk- adequacy.11 Through such stress testing subsidiary level. In undertaking weighted assets, the ability of capital to a banking organization can work to enterprise-wide liquidity tests banking absorb losses, and any resulting impact identify vulnerabilities related to organizations should make realistic on the banking organization’s capital liquidity adequacy in light of both firm- assumptions as to the implications of ratios. It should include all relevant risk specific and market-wide stress events liquidity stresses in one part of the types and other factors that have a and circumstances. Effective stress banking organization on other parts. potential to affect capital adequacy, testing helps a banking organization An effective stress testing framework whether directly or indirectly, including identify and quantify the depth, source, should explore the potential for capital firm-specific ones. A banking and degree of potential liquidity and and liquidity problems to arise at the organization should also explore the funding strain and to analyze possible same time or exacerbate one another. potential for possible balance sheet impacts on its cash flows, liquidity For example, a banking organization in expansion to put pressure on capital position, profitability, and other aspects a stressed liquidity position is often ratios and consider risk mitigation and of its financial condition over various required to take actions that have a capital preservation options, other than time horizons. For example, stress negative direct or indirect capital simply shrinking the balance sheet. testing can be used to explore potential impact (e.g., selling assets at a loss or Capital stress testing should assess the funding shortfalls, shortages in liquid incurring funding costs at above market potential impact of a banking assets, the inability to issue debt, rates to meet funding needs). A banking organization’s material subsidiaries exposure to possible deposit outflows, organization’s liquidity stress analysis suffering capital problems on their volatility in short-term brokered should explore situations in which the own—such as being unable to meet deposits, sensitivity of funding to a banking organization may be operating local country capital requirements— ratings downgrade, and the impact of with a capital position that exceeds even if the consolidated banking reduced collateral values on borrowing regulatory minimums, but is capacity at the Federal Home Loan nonetheless viewed within the financial Banks, the Federal Reserve discount 8 While savings and loan holding companies markets or by its counterparties as being currently are not subject to consolidated regulatory of questionable viability. Assessing the leverage or risk-based capital requirements, a 9 For regulated subsidiaries, stress testing potential interaction of capital and savings and loan holding company should have activities should be fully consistent with the liquidity can be challenging and may sufficient capital and an effective capital planning regulations and guidance of the relevant primary process, consistent with its overall risk profile and federal supervisor. not be possible within a single stress considering the size, scope, and complexity of its 10 The agencies expect that the stress test test, so organizations should explore operations, to ensure the safe and sound operation requirements in the Dodd-Frank Act for companies several avenues to assess that of the company. See Supervision and Regulation with more than $10 billion in assets would be an interaction. As with other applications Letter SR 11–11, Supervision of Savings and Loan integral part of this type of stress testing. of stress testing, for its capital and Holding Companies (July 21, 2011), available at 11 See, Funding and Liquidity Risk Management http://www.federalreserve.gov/bankinforeg/ Policy Statement and Interest Rate Risk Advisory, liquidity stress tests, it is beneficial for srletters/sr1111.pdf. supra note 12. a banking organization to articulate

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clearly its objectives for a post-stress A banking organization should have documented appropriately, including a outcome, for instance to remain a viable written policies, approved and annually description of the types of stress tests financial market participant that is able reviewed by the board, that direct and and methodologies used, key to meet its existing and prospective govern the implementation of the stress assumptions, results, and suggested obligations and commitments. In such testing framework in a comprehensive actions. Senior management, in cases, banking organizations would manner. Policies, along with procedures consultation with the board, should have to consider which measures of to implement them, should: review stress testing activities and financial condition would need to be • Describe the overall purpose of results with an appropriately critical eye met on a post-stress basis to secure the stress testing activities; and ensure that there is objective review • confidence of counterparties and market Articulate consistent and of all stress testing processes. participants. sufficiently rigorous stress testing The results of stress testing analyses practices across the entire banking should facilitate decision-making by the VI. Governance and Controls organization; board and senior management. Stress • As noted under Principle 5, a banking Indicate stress testing roles and testing results should be used to inform organization’s stress testing framework responsibilities, including controls over the board about alignment of the will be effective only if it is subject to external resources used for any part of banking organization’s risk profile with strong governance and controls to stress testing (such as vendors and data the board’s chosen risk appetite, as well ensure the framework is functioning as providers); as inform operating and strategic • Describe the frequency and priority intended. The extent and sophistication decisions. Stress testing results should with which stress testing activities of a banking organization’s governance be considered directly by the board and should be conducted; senior management for decisions over its stress testing framework should • Indicate how stress test results are relating to capital and liquidity align with the extent and sophistication used, by whom, and outline instances in of that framework. adequacy, including capital contingency which remedial actions should be taken; plans and contingency funding plans. Governance over a banking and Senior management, in consultation organization’s stress testing framework • Be reviewed and updated as with the board, should ensure that the rests with the banking organization’s necessary to ensure that stress testing stress testing framework includes a board of directors and senior practices remain appropriate and keep sufficient range of stress testing management. As part of their overall up to date with changes in market activities applied at the appropriate responsibilities, a banking conditions, banking organization levels of the banking organization (i.e., organization’s board and senior products and strategies, banking not just one enterprise-wide stress test). management should establish a organization exposures and activities, Sound governance also includes using comprehensive, integrated and effective the banking organization’s established stress testing to consider the stress testing framework that fits into risk appetite, and industry stress testing effectiveness of a banking organization’s the broader risk management of the practices. risk mitigation techniques for various banking organization. While the board is A stress testing framework should risk types over their respective time ultimately responsible for ensuring that incorporate validation or other type of horizons, such as to explore what could the banking organization has an independent review to ensure the occur if expected mitigation techniques effective stress testing framework, senior integrity of stress testing processes and break down during stressful periods. management generally has results, consistent with existing responsibility for implementing that supervisory expectations.12 If a banking VII. Conclusion framework. Senior management duties organization engages a third party A banking organization should use should include establishing adequate vendor to support some or all of its the principles laid out in this guidance policies and procedures and ensuring stress testing activities, there should be to develop, implement, and maintain an compliance with those policies and appropriate controls in place to ensure effective stress testing framework. Such procedures, assigning competent staff, that those externally developed systems a framework should be adequately overseeing stress test development and and processes are sound, applied tailored to the banking organization’s implementation, evaluating stress test correctly, and appropriate for the size, complexity, risks, exposures, and results, reviewing any findings related banking organization’s risks, activities, activities. A key purpose of stress to the functioning of stress test and exposures. Additionally, senior testing is to explore various types of processes, and taking prompt remedial management should be mindful of any possible outcomes, including rare and action where necessary. Senior potential inconsistencies, extreme events and circumstances, management, directly and through contradictions, or gaps among its stress assess their impact on the banking relevant committees, also should be tests and assess what actions should be organization, and then evaluate the responsible for regularly reporting to the taken as a result. Internal audit should boundaries up to which the banking board on stress testing developments also provide independent evaluation of organization plans to be able to (including the process to design tests the ongoing performance, integrity, and withstand such outcomes. Stress testing and develop scenarios) and on stress reliability of the stress testing may be particularly valuable during testing results (including from framework. A banking organization benign periods when other measures individual tests, where material), as should ensure that its stress tests are may not indicate emerging risks. well as on compliance with stress While stress testing can provide testing policy. Board members should 12 For validation of models and other quantitative valuable information regarding potential tools used for stress testing, see OCC Bulletin 2011– actively evaluate and discuss this 12, Supervisory Guidance on Model Risk future outcomes, similar to any other information, ensuring that the stress Management (April 4, 2011), available at http:// risk management tool it has limitations testing framework is in line with the www.occ.gov/news-issuances/bulletins/2011/ and cannot provide absolute certainty banking organization’s risk appetite, bulletin-2011-12a.pdf; or Supervision and regarding the implications of assumed Regulation Letter SR 11–7, Guidance on Model Risk overall strategy and business plans, and Management (April 4, 2011), available at http:// events and impacts. Furthermore, contingency plans, directing changes www.federalreserve.gov/bankinforeg/srletters/ management should ensure that stress where appropriate. sr1107.pdf. testing activities are not constrained to

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reflect past experiences, but instead DEPARTMENT OF THE TREASURY (‘‘Circular’’), 2011 Revision, to reflect consider a broad range of possibilities. this change. Fiscal Service No single stress test can accurately With respect to any bonds currently estimate the impact of all stressful Surety Companies Acceptable on in force with this company, bond- events and circumstances; therefore, a approving officers may let such bonds banking organization should understand Federal Bonds—Termination: Atlantic Bonding Company, Inc. run to expiration and need not secure and account for stress testing limitations new bonds. However, no new bonds and uncertainties, and use stress tests in AGENCY: Financial Management Service, should be accepted from this company, combination with other risk Fiscal Service, Department of the and bonds that are continuous in nature management tools to make informed Treasury. should not be renewed. risk management and business decisions. ACTION: Notice. The Circular may be viewed and downloaded through the Internet at Dated: May 10, 2012. SUMMARY: This is Supplement No. 19 to www.fms.treas.gov/c570. Thomas J. Curry, the Treasury Department Circular 570, Questions concerning this notice may Comptroller of the Currency. 2011 Revision, published July 1, 2011, at 76 FR 38892. be directed to the U.S. Department of By order of the Board of Governors of the the Treasury, Financial Management FOR FURTHER INFORMATION CONTACT: Service, Financial Accounting and Federal Reserve System, May 11, 2012. Surety Bond Branch at (202) 874–6850. Jennifer J. Johnson, Services Division, Surety Bond Branch, SUPPLEMENTARY INFORMATION: Notice is 3700 East-West Highway, Room 6F01, Secretary of the Board. hereby given that the Certificate of Hyattsville, MD 20782. Dated at Washington, DC, this 10th day of Authority issued by the Treasury to the May 2012. Dated: May 8, 2012. above-named company under 31 U.S.C. Federal Deposit Insurance Corporation. 9305 to qualify as acceptable surety on Laura Carrico, Robert E. Feldman, Federal bonds is terminated effective Director, Financial Accounting and Services Executive Secretary. today. Federal bond-approving officials Division. [FR Doc. 2012–11989 Filed 5–16–12; 8:45 am] should annotate their reference copies [FR Doc. 2012–11893 Filed 5–16–12; 8:45 am] BILLING CODE CODE 4810–33–P; 6210–01–P; 6714–01–P of the Treasury Department Circular 570 BILLING CODE 4810–35–P

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Part II

Department of Agriculture

Commodity Credit Corporation 7 CFR Part 1485 Market Access Program; Final Rule

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DEPARTMENT OF AGRICULTURE (braille, large print, audiotape, etc.) (NEPA), no environmental assessment should contact the USDA TARGET or environmental impact statement will Commodity Credit Corporation Center at (202) 720–2600 (Voice and be prepared. TDD). 7 CFR Part 1485 Unfunded Mandates SUPPLEMENTARY INFORMATION: Title II of the Unfunded Mandates RIN 0551–AA72 Executive Order 12866 Reform Act of 1995 (UMRA) does not Market Access Program This rule is issued in conformance apply to this rule because it does not with Executive Order 12866. It has been impose any enforceable duty or contain AGENCY: Foreign Agricultural Service determined to be not significant for the any unfunded mandate as described and Commodity Credit Corporation, purposes of Executive Order 12866 and under the UMRA. USDA. was not reviewed by the Office of Paperwork Reduction Act of 1995 ACTION: Final rule. Management and Budget. A cost-benefit In accordance with the Paperwork assessment of this rule was not Reduction Act of 1995, FAS has SUMMARY: This final rule revises and completed. amends the regulation used to previously received approval from OMB administer the Market Access Program Executive Order 12988 with respect to the information (MAP) by updating and merging the This rule has been reviewed in collection required to support this application requirements and the accordance with Executive Order 12988. program. The information collection is activity plan requirements to reflect the This rule does not preempt State or described below: Unified Export Strategy (UES) system local laws, regulations, or policies Title: Foreign Market Development currently in place; clarifying the unless they present an irreconcilable Program (FMD) and Market Access eligibility of activities designed to conflict with this rule. This rule would Program (MAP); OMB Control Number: address international market access not be retroactive. 0551–0026. issues; modifying the list of eligible and The current OMB approval of this ineligible contributions; revising the Executive Order 12372 information collection is scheduled to portions of the regulation regarding This program is not subject to expire on August 31, 2012. evaluations, contracting procedures, and Executive Order 12372, which requires Consequently, CCC will submit a the compliance review and appeals intergovernmental consultation with request to OMB under the Paperwork process; eliminating the Export State and local officials. See the notice Reduction Act (PRA), 44 U.S.C. 3501 et Incentive Program/Market Access related to 7 CFR part 3015, subpart V, seq., for the continued use of this Program (EIP/MAP) as a separate published at 48 FR 29115 (June 24, information collection. CCC’s request subcomponent; and making other 1983). will reflect changes to the new administrative changes for clarity and paperwork collection requirements that Executive Order 13175 program integrity. This final rule adopts were made in the final rule in response the substantive provisions of the This rule does not have tribal to public comments. A separate Notice proposed rule published September 8, implications as specified by Executive of Request for Extension and Revision of 2009, revising and amending MAP Order 13175 (65 FR 67249, November 9, Currently Approved Information regulations, with changes made to 2000) that will preempt Tribal law. Collection for the Market Access Program will be published in the reflect public comments to the proposed Executive Order 13132 rule. Federal Register for comment. This rule does not have any DATES: Effective Date: This rule is E-Government Act Compliance substantial direct effect on States, on the effective May 17, 2012. Applicability relationship between the Federal CCC is committed to complying with Date: This regulation will become government and the States, or on the the E-Government Act to promote the applicable for each MAP participant at distribution of power and use of the Internet and other the beginning of the MAP participant’s responsibilities among the various information technologies to provide 2013 program year (i.e., 01/01/2013 or levels of government, nor does this rule increased opportunities for citizen 07/01/2013). impose substantial direct compliance access to Government information and FOR FURTHER INFORMATION CONTACT: costs on State and local governments. services and for other purposes. The Mark Slupek, 202–720–1169, U.S. Therefore, consultation with the States forms, regulations, and other Department of Agriculture, Foreign was not required. information collection activities Agricultural Service, Office of Trade required to be utilized by a person Programs, Program Operations Division, Regulatory Flexibility Act subject to this rule are available at: Portals Office Building, Suite 400, 1250 The Regulatory Flexibility Act does http://www.fas.usda.gov. Maryland Avenue SW., Washington, DC not apply to this rule because Background 20024; or by phone: (202) 720–4327; or Commodity Credit Corporation (CCC) is by fax: (202) 720–9361; or by email: not required by 5 U.S.C. 553 or any Section 203 of the Agricultural Trade [email protected]. other law to publish a notice of Act of 1978, as amended, directs CCC to The U. S. Department of Agriculture proposed rulemaking with respect to the carry out a program to encourage the (USDA) prohibits discrimination in its subject matter of the rule. development, maintenance, and programs on the basis of race, color, expansion of commercial export markets national origin, sex, religion, sexual Environmental Assessment for agricultural commodities through orientation, age, disability, political CCC has determined that this rule cost-share assistance to eligible trade beliefs and marital or familial status. does not constitute a major State or organizations. Such assistance may be (Not all prohibited bases apply to all Federal action that would significantly provided in the form of CCC funds or programs.) Persons with disabilities affect the human or natural CCC-owned commodities. who require alternative means for environment. Consistent with the Since the inception of the MAP, CCC communication of program information National Environmental Policy Act has monitored the program closely,

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strengthened program controls, and alert MAP Participants of procedures for technical teams while traveling in the implemented changes to improve the requesting advances, applicable federal United States. This change codifies effectiveness of the program. In pay scale rates, lists of economic and MAP Notice 06–002. MAP Notice 06– administering the program, CCC is trade sanctions against certain foreign 002 will be removed from FAS’ Web committed to ensuring efficient and countries, reporting formats and site. effective use of public funds. In this computer codes to use with the UES. CCC has decided to eliminate the regard, CCC considers an applicant’s The content of some MAP notices provision allowing reimbursement of need for Federal financial assistance, an were already codified in the proposed domestic travel expenditures for a MAP applicant’s use of rigorous performance rule. In response to the commenters, Participant’s attendance at meetings of measurements in its plans, and CCC has incorporated into the final rule international technical organizations increasing contribution levels from several additional MAP notices that when such meetings are conducted in Participants as important factors in the CCC has judged to be more substantive the United States. overall management of the MAP. in nature. Those MAP notices that have These provisions are discussed in been so codified will be deleted from more detail in a later response. Summary and Analysis of Comments the FAS Web site. Domestic travel expenditures are not On May 23, 2007, the CCC published CCC will remove certain other of the reimbursable for brand promotion an advance notice of proposed remaining MAP notices that are now activities. rulemaking and public hearing in the obsolete or inconsistent with the final The comments regarding E-ticketing Federal Register (72 FR 28901). This rule before or concurrent with the final and internet purchase of tickets appear notice was intended to solicit comments rule’s effective date. The remaining to refer to MAP Notice 02–004. This on whether to amend and revise the MAP notices will continue to be notice reminds MAP Participants that current MAP regulations. In addition, available on the Web site for the reimbursement of allowable travel CCC held a public hearing on July 25, informational purposes and reflect expenses when using E-Tickets is 2007, to receive oral and written details related to CCC’s current subject to the availability of sufficient comments. administration of the MAP program. documentation to support the expenses, On September 8, 2009 (74 FR 46027), Comment: One respondent stated that as is the case with all travel expenses. a proposed rule was published although domestic travel is not The notice provides examples of governing the operations of MAP. addressed in the new MAP regulation, information that such documentation CCC received nearly 1,300 comments this is one area with respect to which a must include, such as the complete from nonprofit U.S. trade associations, policy clarification exists. Fourteen routing codes (i.e., layover and flight U.S. companies, state organizations, additional comments were made information for each segment of a trip in regional trade associations, Participants, regarding E-ticketing and internet which a change of airplane or flight and consulting firms in response to the purchasing of tickets (not through a designation is made) and the fare proposed rule. Following is a summary travel agency). The respondents stated amount charged (i.e., point-to-point of the comments that specifically that this is an area that was previously faring). The notice also informs MAP address the proposed rule and CCC’s covered by a policy clarification but is Participants that reimbursable travel responses to these comments. General not covered in the new regulation; so expenditures include associated comments relating to the value of the the question whether previous policy reasonable and common fees that travel program, editorial suggestions, and non- clarifications will remain in effect or if agents or other ticketing sources may substantive comments have been the new MAP regulation will supersede charge for providing E-Ticket itineraries, omitted. the policy clarifications applies here as invoices and/or receipts. The MAP final well. rule now sets broad guidance on the Sec. 1485.10 General Purpose & Scope Response: Domestic travel was reimbursement of a MAP Participant’s Policy Clarifications addressed in a limited fashion in the domestic travel. CCC believes the final proposed rule at § 1485.17(c)(25), which rule’s provisions provide sufficient CCC received 164 comments on this would have allowed, inter alia, guidance to MAP Participants and does section. reimbursement, solely in connection not believe it necessary to codify MAP Comment: Nineteen respondents with generic promotion, only of Notice 02–004’s explanation of the expressed their concern with regard to domestic travel expenditures associated particulars of program administration. whether previous policy clarifications with meetings of international MAP Notice 02–004 shall remain on the will remain in effect or if the new MAP organizations conducted in the United FAS Web site for informational regulation will supersede the policy States. In response to the comment, purposes. clarifications currently in effect. The however, CCC has addressed domestic Comment: Six respondents asked for respondents asked for clarification on travel more extensively in several new further clarification on the types of this and stated that if previous policy subsections of § 1485.17(c). activities in the U.S. that are clarifications remain in effect, that the New § 1485.17(c)(24) lays out the reimbursable. notices should be incorporated into the conditions under which domestic travel Response: In response to the new regulation. related to international retail, trade and comments, CCC has made a clarification Response: CCC understands that the consumer exhibits and shows to § 1485.10(c) that, to be reimbursable, commenters are referring to the ‘‘Market conducted in the United States can be all activities that occur in the United Access Program notices’’ available at reimbursed. States must develop, maintain, or http://www.fas.usda.gov/mos/programs/ New § 1485.17(c) (25) allows expand the commercial export market mnotice.html. CCC issues these MAP reimbursement for domestic travel for for the relevant U.S. agricultural notices for informational purposes. seminars and educational training commodity in accordance with the MAP These notices have no legal effect. They conducted in the United States. Participant’s approved MAP program. are intended to alert MAP Participants New § 1485.17(c) (26) allows Comment: Fourteen respondents of various aspects of CCC’s reimbursement of domestic travel recommended that the threshold in the administration of the MAP program. For expenditures of certain individuals regulations for Miscellaneous/Fixed example, CCC issues MAP notices to accompanying foreign trade missions or Asset Category be raised to $500 and

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proposed that software be subject to the primarily in furtherance of an approved Response: CCC disagrees with the same threshold as fixed assets. activity would be fully reimbursed respondents in regard to the need for Response: These comments refer to a under MAP. In contrast, under a caller additional definitions of these terms, threshold in § 1485.23(d)(2) of the usage plan that charges by the minute, except that it has further clarified the current MAP regulations. This provision only charges for calls incurred in terms ‘‘foreign brand’’ and ‘‘theme.’’ The was not included in the proposed rule furtherance of an approved activity definition of ‘‘generic promotion’’ now and is not included in the final rule. would be reimbursed under MAP. refers to a foreign brand as ‘‘a brand Section 1485.30 of the MAP final rule owned primarily by foreign interests Section 1485.11 Definitions provides the final property standards for and being used to market a commodity the program. In addition, MAP CCC received 153 comments on this or product in a foreign market.’’ Participants are subject to the applicable section. In response to the comments, Similarly, the definition of ‘‘generic property management standards CCC has edited the definitions as set promotion’’ refers to the concept of a described in 7 CFR Parts 3015, 3016 and forth below. In addition, CCC has made ‘‘unified theme’’ as ‘‘a dominant idea or 3019, depending on the nature of the minor clarifications to the definitions of motif.’’ CCC has removed the term MAP Participant organization. ‘‘contribution,’’ ‘‘program year,’’ ‘‘negative comparison’’ from that Comment: One respondent stated ‘‘SRTG,’’ and ‘‘supergrade.’’ CCC has definition in response to a different more flexibility is needed for electronic also included a new definition for comment. communications, which are becoming a ‘‘product samples.’’ This definition now Comment: Fourteen respondents more important part of the marketing codifies MAP Notice 11–003, and MAP questioned the definition of audits. mix for Participants, both branded and Notice 11–003 will be removed from They stated that audits are mentioned in generic. FAS’ Web site. Finally, CCC has added at least three places with seemingly Response: CCC believes that the a new definition for MAP Notice in the contradictory provisions. flexibility provided in § 1485.17(b)(1) MAP final rule. Response: CCC notes the MAP final and § 1485.17(b)(16) is adequate. Comment: One respondent rule does not define ‘‘audit.’’ However, Comment: Fourteen respondents recommended that the generic CCC does not believe it is necessary to stated that FAS refers to miscellaneous promotions be defined more broadly as define this term, as CCC views this term communications devices in the new ‘‘using U.S. commodities from multiple as generally understood. In response to regulations but did not address their U.S. suppliers or in cases where only the comments, however, CCC agrees that usage costs and asked for clarification one U.S. supplier is selected to supply the use of the term ‘‘audit’’ in on whether these costs were the commodity in question, that § 1485.21(d)(7) is confusing and has reimbursable. multiple U.S. suppliers had the replaced the term ‘‘audit’’ with the term Response: CCC believes the opportunity to submit bids or compete ‘‘compliance review’’ in § 1485.21(d)(7). reimbursement of the usage costs of for the business.’’ This respondent Comment: Fourteen respondents various communications devices is stated that as long as multiple U.S. commented that the use of already addressed by the various companies had the opportunity to representatives (branded) in the phrase provisions in the MAP final rule. compete for that business, it believed ‘‘no more than two representatives of a Reimbursement of such communication promotions with these companies single brand participant to exhibit their costs depends on the circumstances should be considered generic. Another company’s products at a foreign trade under which the communication took respondent commented that a generic show’’ implied that these individuals place. For example, where usage costs of promotion should not be required to have to be employees of the brand (as communications devices are incurred by support at least two brands since this is in § 1485.17(b)(7)). These respondents the MAP Participant’s U.S. offices and difficult when a retailer carries only suggested that this definition be staff, those costs are not reimbursable one. expanded to include others associated pursuant to § 1485.16(c) and Response: CCC disagrees with the with the brand such as distributors, § 1485.17(d)(26). If usage costs of respondents’ comments suggesting that consultants, etc. communications devices are incurred a generic promotion not be required to Response: CCC agrees with the while on eligible international or support at least two brands, particularly respondents. CCC has modified this domestic travel for approved MAP in the case raised by the respondent, in section (now § 1485.17(b)(8)) to expand brand or generic promotion activities which a single company has been the list of eligible representatives to and are allowed under the U.S. Federal competitively selected over other include: Employees and board members Travel Regulations (41 CFR Parts 301 bidders. of private companies, employees or through 304), they are potentially For clarity, CCC has moved the members of cooperatives, or any broker, reimbursable as international or substance of proposed § 1485.17(d), consultant, or marketing representative domestic travel expenditures under the defining what may be considered a contracted by the company or circumstances laid out in the applicable generic promotion activity, from the cooperative to represent the company or provisions in § 1485.17(b) and (c). If section on MAP ‘‘Reimbursement rules’’ cooperative in sales transactions. CCC usage costs of communications devices to the definition of ‘‘generic promotion’’ notes that MAP Notice 99–003 is now are incurred as part of the organization in § 1485.11. Original subsections (e), obsolete and will be removed from FAS’ costs for a MAP Participant’s overseas (f), (g), (h), (i), (j), and (k) in § 1485.17 Web site. office approved in its MAP program have been re-designated as (d), (e), (j), Comment: Sixteen respondents agreement and such communications (f), (g), (h), and (i), respectively. commented that the proposed definition originate overseas, § 1485.17(c)(11) Comment: Fourteen respondents for ‘‘notifications’’ has veered from the provides that such communications recommended adding or clarifying original purpose for notifications, which costs are reimbursable for generic definitions for the following terms: is to notify CCC of significant changes promotions so long as the expenditure Advertising, audits, contractors, direct to the MAP Participant’s strategic plan. was made in furtherance of an approved promotional costs, employees, foreign The respondents asked FAS to clarify activity. Thus, the monthly service brand, negative comparison, overhead the definition of notifications and stated charge for a caller usage plan with costs, representative, small purchase the proposed rule would be burdensome unlimited minutes that is incurred threshold, and theme. to the Participants.

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Response: CCC agrees with the does not appear to allow a cooperative state that a foreign third party is a commenters. Instead of changing the to apply for funds to run its own brand foreign entity with whom a MAP definition of ‘‘notification,’’ however, program. Therefore, they requested that Participant works to promote the export CCC has modified § 1485.14(i) to change § 1485.11 (brand participant) and of a U.S. agricultural commodity under when notifications will be required. § 1485.13(a) be clarified to make it clear the MAP program. Notifications are now required only if a that cooperatives will continue to be Comment: Three respondents MAP Participant wishes to conduct an eligible to apply directly for a brand commented that in light of the entirely new activity or if the promotion program. continued development of agricultural Participant wishes to increase the One respondent stated that currently products for non-food use, they funding level for existing, approved cooperatives are allowed to contract proposed that this rule be amended to activities by more than $25,000 or 25%, directly with FAS to participate in the insert ‘‘non-durable’’ between ‘‘and whichever is greater. A MAP Participant MAP program to promote the brand that any’’ and ‘‘product thereof, excluding may make significant adjustments below their farmers have developed, own and tobacco.’’ that threshold without prior notification use, to maximize their returns. This Response: CCC disagrees with the to CCC, but must still submit a respondent stated that it should be respondents’ suggestion, as the change notification alerting CCC of such allowed to continue to do so, as this was would unnecessarily limit the scope of adjustments no later than 30 days after what Congress intended. the program. CCC has modified the the change. Finally, CCC has clarified One respondent stated that the definition of ‘‘U.S. agricultural that minor adjustments to existing, reference to ‘‘participating in the brand commodity’’ to preserve the scope of the approved activities and/or funding promotion program of another MAP program as covering all agricultural levels do not require notification. Participant’’ does not always apply and commodities, regardless of the type of Comment: Three respondents should be deleted from the definition. use to which the agricultural product is recommended that the definition of a Response: CCC agrees with these put. The definition of U.S. agricultural small-sized entity be expanded for the comments and has clarified these commodity now refers to ‘‘any program by establishing the size sections. CCC has modified the agricultural commodity, including any eligibility standard to one not exceeding definition of ‘‘brand participant’’ to food, feed, fiber, forestry product, 150 percent of the current Small make clear that the term does not livestock, or insect of U.S. origin or fish Business Administration guidelines. include any agricultural cooperatives * * *’’ that are MAP Participants that apply for The respondents stated that this Sec. 1485.12 Participation Eligibility recommendation would better align the MAP funds to implement their own definition with the actual practice in the brand programs. CCC has also modified CCC received 2 comments on this food processing industry. the definition of ‘‘brand promotion’’ to section. Response: CCC disagrees. CCC include U.S. agricultural cooperatives’ Comment: One respondent stated the believes it is consistent with the promotion of their own brand in their current MAP regulations allow U.S. Administration’s National Export own brand program. CCC has also agricultural cooperatives to be a MAP Initiative to maintain the same modified § 1485.15 to delete the phrase Participant. The proposed rule retained definition of small business as the Small ‘‘third party’’ before ‘‘brand this eligibility but qualified ‘‘U.S. Business Administration. participants’’ as redundant, since the agricultural cooperative’’ with the term Comment: Fourteen respondents definition of brand participant clearly ‘‘nonprofit.’’ The respondent suggested the phrase, ‘‘online to MAP refers to third parties and not the MAP commented that its understanding is and any other USDA market promotion Participant. CCC has also modified that the term ‘‘nonprofit’’ in § 1485.12(c) program * * *’’ in the ‘‘UES Web site’’ § 1485.17(b)(7) (now § 1485.17(b)(8)) to and elsewhere in the proposed definition be changed to ‘‘* * * and make clear that the travel expenses of regulations is not intended to change any other USDA market development representatives of MAP Participants, the eligibility of cooperatives that are program * * *’’ which is more accurate including U.S. agricultural cooperatives currently participating in MAP and and the terminology used in the running their own brand programs, at which are considered ‘‘nonprofit’’ in the subsequent definition of the Unified brand promotions at trade shows are sense that they are entitled to tax Export Strategy (UES). also reimbursable. Finally, CCC has treatment afforded by Subchapter T of Response: CCC agrees with the modified § 1485.15(d) to refer to the Internal Revenue Code Section 1381. respondents and has changed the final ‘‘entity’’ instead of ‘‘company’’ in noting The respondent requested that FAS rule accordingly. In addition, CCC has that MAP Participants may not provide confirm that ‘‘a nonprofit U.S. added an explicit reference to the MAP assistance to a single entity for brand agricultural cooperative’’ as used in the program to the end of the definition. promotion in a single country for more proposed regulations includes U.S. Comment: One comment was received than 5 years. agricultural cooperatives that are recommending each definition be given Comment: One respondent stated that entitled to tax treatment afforded by an identifying number or letter so that the proposed definition of ‘‘foreign third Subchapter T of the Internal Revenue it is easier to indicate which definition party’’ implies that the MAP Participant Code (IRC) Section 1381. is being discussed. can select a qualified foreign third party Response: CCC confirms that U.S. Response: CCC disagrees. CCC with whom to work. The commenter agricultural cooperatives that are believes that providing the definitions stated if the proposed definition intends entitled to tax treatment afforded by alphabetically is adequate for to imply that FAS must give approval of Subchapter T of the IRC Section 1381 identifying definitions. foreign third parties with whom are eligible to participate in the MAP Comment: Three respondents stated Participants work, then it must be program. CCC has deleted the term that because ‘‘brand participant’’ is deleted. ‘‘nonprofit’’ before ‘‘U.S. agricultural defined in the proposed regulation to Response: It is not CCC’s intention cooperative’’ as unnecessary and mean only U.S. agricultural that CCC would review or approve potentially confusing. CCC has also cooperatives that are ‘‘participating in foreign third parties with whom modified the definition of ‘‘brand the MAP brand promotion of another Participants wish to work. CCC has participant’’ in § 1485.11 and MAP Participant,’’ the proposed rule clarified this definition accordingly to § 1485.12(c) and made conforming edits

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to § 1485.13 and § 1485.28(b) to delete § 170.200(b), any regulations issued Comment: Twenty-one respondents the term ‘‘nonprofit.’’ after September 14, 2010 and containing questioned if the online version is still Comment: One respondent stated its instructions for applicants of grants and required, could it be submitted in a concern that the proposed regulation cooperative agreements, among other reasonably short time following the § 1485.13(a) states that ‘‘applicants’’ assistance, must require applicants that deadline? may apply for the MAP program, but do not qualify for an exception under 2 Response: No. Electronic applications does not define the term ‘‘applicant.’’ CFR § 170.110(b) to have the necessary may not be submitted after the deadline. The respondent was also concerned that processes and systems in place to CCC is required to publish a Notice of § 1485.12 uses the term ‘‘entities’’ to comply with Part 170’s reporting Funds Availability annually in the describe who can ‘‘participate’’ in the requirements if they receive funding. Federal Register. This notice provides MAP, while § 1485.13(a) uses the term Comment: Two respondents stated 60 days to submit applications either ‘‘applicant.’’ The respondent was that under the current MAP regulations electronically or by hard copy. concerned that the two sections do not a U.S. agricultural cooperative is eligible Applications are required to be cross reference each other and that to be a MAP Participant and in that submitted by the deadline that is neither term is defined in § 1485.11 capacity to apply directly to CCC for the published in the annual notice. ‘‘Definitions.’’ The respondent also cooperative’s own brand promotion Comment: Two respondents provided suggested the proposed regulations be program. comments regarding revised as necessary to make clear that The respondents stated that the § 1485.13(a)(3)(i)(A) and ‘‘a nonprofit U.S. agricultural proposed regulation at § 1485.13(a) § 1485(a)(3)(i)(B). They stated they cooperative’’ is one of the four entities appears to unintentionally change this support the requirement that eligible to participate in MAP under by providing in the fourth sentence that Participants submit a strategic plan; § 1485.12 and is also eligible to be an a MAP applicant (i.e., including a however, to reduce the complexity of ‘‘applicant’’ and apply directly for MAP nonprofit U.S. agricultural cooperative) the UES process, they recommended under § 1485.13(a), including for its ‘‘may apply to conduct a generic that the plan submission remain own brand promotion program. promotion program, a brand promotion separate from the current UES process. Response: CCC does not share the program that provides MAP funds to Response: CCC disagrees. CCC will respondent’s concerns. CCC believes it brand participants for branded continue to approve applications that it is unnecessary to define the terms promotion, or both.’’ They requested considers to present the best ‘‘applicant’’ and ‘‘entity.’’ CCC believes that FAS confirm that a nonprofit U.S. opportunities for developing and that it is appropriate to use different agricultural cooperative that applies to expanding export markets for U.S. terms in § 1485.13(a), which deals with CCC for its own brand promotion agricultural commodities. The strategic those who actually apply to the program program would be considered a ‘‘MAP planning process is a critical part of the and therefore are ‘‘applicants,’’ and Participant,’’ not a ‘‘brand participant’’ application and therefore must be § 1485.12, which deals with who, in since it would enter into a MAP provided within the UES process in theory, is eligible to apply. The MAP agreement directly with CCC. order for the applications to be final rule is clear that to participate in Response: CCC agrees with the evaluated in a consistent and equitable the MAP, an entity must be one of four respondents. CCC did not intend to manner. This is not a change from types of entities, one of which is a U.S. change this policy and has modified current practice. agricultural cooperative. Implicit in the § 1485.13(a) accordingly to explicitly Comment: Sixteen respondents concept of being ‘‘eligible’’ to state that an applicant who is a U.S. provided similar comments that stated participate in the MAP is the notion that agricultural cooperative may also apply that § 1485.13(a)(1)(i)(R) & (S) both eligible ‘‘entities’’ are also eligible to be for funds to conduct its own brand appear to require that the applicant’s ‘‘applicants’’ to the program. promotion program. As noted proposed contribution be stated in both previously, CCC has also clarified the dollar terms and as a percentage of CCC Sec. 1485.13 Application Process definition of ‘‘brand participant’’ in resources requested. They stated that CCC received 94 comments on this § 1485.11 to exclude from that they assume this change is not the section. CCC’s responses are below. In definition any agricultural cooperatives intention of CCC, because § 1485.25 of addition, CCC has included new that are MAP Participants that apply for the proposed rule implies that the § 1485.13(d) and (e) to comply with MAP funds to implement their own applicant has a choice between stating OMB regulations 2 CFR Part 25, brand programs. its proposed contribution either in ‘‘Universal Identifier and Central Comment: Twenty-one respondents dollar terms or as a percentage, as is the Contractor Registration (CCR)’’ and submitted requests for FAS to clarify case under current MAP regulations. 2 CFR Part 170, ‘‘Reporting Subaward that electronic copies of applications are The respondents asked for clarification. and Executive Compensation no longer required to be submitted Response: CCC agrees with the Information.’’ 2 CFR § 25.200 directs through the UES system and only a hard respondents and has changed the final federal agencies to include in their copy is required to be sent. rule to clarify that the applicant has the regulations issued on or after September Response: CCC’s intent was not to choice to propose its contribution in 14, 2010 requirements that all imply that only a hard copy be sent. dollar terms or as a percentage of applicants for federal financial Applicants have always had a choice to resources requested. Section assistance: (1) Be registered in the CCR submit either an electronic copy or a 1485.13(a)(1)(i)(R) & (S) have been prior to submitting an application or hard copy of their application. CCC eliminated and new § 1485.13(a)(1)(i)(Q) plan; (2) maintain an active CCR believes the MAP final rule clearly requires applications to include: ‘‘Value, registration with current information at maintains that choice, but encourages in U.S. dollars, of proposed all times during which it has an active organizations to submit their contributions from the applicant or the Federal award or an application or plan applications through the UES system, applicant’s proposed contribution stated under consideration by an agency; and because this format virtually eliminates as a percentage of the total dollar (3) provide its DUNS number in each paperwork and expedites the FAS amount of CCC resources requested.’’ application or plan it submits to the processing, review, and reimbursement Comment: Sixteen respondents stated agency. Similarly, pursuant to 2 CFR cycles. that § 1485.13(a)(3)(i)(M), which

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introduces the requirement for an Comment: One respondent stated that will review proposed MAP-funded evaluation plan as part of the MAP both § 1485.13(a)(1)(i)(J) and general administrative and overhead application process, seems to imply that § 1485.14(c)(9) refer to evaluating a costs compared to proposed MAP- the current practice of ‘‘performance request for a brand promotion program funded direct promotional costs. measures’’, Country Progress Reports based on the percentage of CCC Comment: With respect to and regular, formal evaluations is not resources that will be made available to § 1485.14(c)(8), fourteen respondents sufficient. The respondents stated that if small-sized entities. The comment questioned how CCC compares salaries this is the case the evaluation plan stated that since only small companies of staff with technical expertise and could become an added bureaucratic are eligible to participate in the branded who execute programs with the fees of burden and asked for further program, this reference does not appear consultants who do similar work. The clarification of CCC’s intent with this to be needed and should be deleted. respondents stated that they felt the new requirement. They also asked for Response: CCC has deleted the wording made an overly simplistic further clarification on whether the references requested by the respondent distinction between administration and evaluation plan is an additional but for a different reason. The promotional expenses. requirement. respondent is not correct that only small Response: CCC disagrees that the Response: The requirement for an companies are eligible to participate in wording of § 1485.14(c)(8) is overly evaluation plan is not a new the branded program. U.S. agricultural simplistic. However, this comment requirement. The Government cooperatives are also eligible to raises an issue that requires further Performance and Results Act (GPRA) of participate in the branded program. clarification of § 1485.11’s definition of 1993 (5 U.S.C. 306; 31 U.S.C. 1105, CCC, however, does not intend for small ‘‘administrative expenses or costs.’’ The 1115–1119, 3515, 9703–9704) requires companies to receive preference over MAP final rule now deletes the phrase performance measurement of Federal cooperatives. Accordingly, there is no ‘‘that are not directly identifiable with a programs, including MAP. Section need to determine the percentage of specific market promotion activity’’ 1485.13(a)(3)(D) of the prior MAP rule resources made available to small-sized from the proposed definition of administrative expenses or costs. required ‘‘[a] statement of goals and the entities, and CCC has eliminated both Administrative expenses or costs now applicant’s plans for monitoring and sections. Large companies remain are defined as those ‘‘expenses or costs evaluating performance towards ineligible for branded programs. of administering, directing, and achieving these goals.’’ In addition, Sec. 1485.14 Application Review and controlling an organization that is a § 1485.14(b)(6)(v) of the previous rule Formation of Agreements MAP Participant * * * [including costs listed as one of the criteria considered CCC has edited § 1485.14(b)(3) to related to personnel (including, but not by CCC in choosing applications the make clear that the preference given to limited to, salaries, benefits, payroll adequacy of the applicant’s strategic organizations with the broadest taxes, individual insurance, training)]’’ plan in the following category producer representation/industry regardless of whether they are ‘‘Description of an evaluation plan and participation applies only with respect specifically identifiable with a specific suitability of the plan for performance to nonprofit U.S. trade organizations. market promotion activity. As proposed measurement.’’ The new final rule CCC has also clarified § 1485.14(e) and § 1485.16(c) and § 1485.17(d)(26) made merely clarifies the current requirement (f) to reflect that the approval letter must clear, home office domestic to increase each applicant’s opportunity also be signed by the MAP Participant administrative expenses, including for success. To clarify that the and that final agreement occurs when salaries of U.S. home office staff who evaluation plan is not a new both the program agreement or execute MAP activities, are generally requirement, CCC has combined sub- amendment and the approval letter are not reimbursable under MAP, and the paragraphs (M) and (E) into one sub- signed by both parties. In addition, CCC Participant must use its own funds to paragraph (E) in § 1485.13(a)(3). received 130 comments on this section, pay any administrative costs of its U.S. Comment: Fourteen respondents set forth below. offices. This is not a change from the stated that the specific mention of the Comment: Fourteen respondents prior regulations. This change to the submission of an ‘‘evaluation plan’’ in stated under § 1485.14(c)(8) that definition of ‘‘administrative expenses the application process implied that the ‘‘overhead costs’’ and ‘‘direct or costs’’ makes the definition current submission of goals and promotional costs’’ are not defined. consistent with these sections. performance measures is no longer Response: CCC believes these terms Pursuant to § 1485.17(c)(1) and (11), sufficient. The fourteen respondents are generally well-understood and that however, MAP funding is available, for also recommended that if such a plan is ‘‘direct promotional costs’’ in specific is generic promotion only, to pay for the required, that the Participant’s self-explanatory. CCC, therefore, does compensation of a U.S. citizen submission be permitted to be brief and not deem it necessary to define these employee or U.S. citizen contractor generalized. terms in the final rule. Moreover, this stationed overseas, as well as the Response: As noted in response to the language remains unchanged from the administrative costs for overseas offices prior comment, in this final rule, CCC current rule that has been in place for approved in MAP program agreements. has combined the current regulation’s 15 years. Section 1485.14(c) explains In evaluating applications for MAP language on goals and performance the allocation factors used by CCC to funding of overseas offices, as reflected measures and the new proposed determine which applications to in § 1485.14(c)(8), CCC generally prefers language on evaluation plans into one approve. Subsection (c)(8), which notes that MAP funding be directed toward single sub-paragraph (E) in § 1485.13. that CCC will review general promotional expenses rather than CCC notes that evaluation of MAP’s administrative and overhead costs administrative expenses. It is true that effectiveness has been and will continue compared to direct promotional costs, salaries of overseas office staff with to be an integral element of program merely reflects CCC’s preference that technical expertise are still considered planning and implementation. The program funds be used for promotional administrative expenses even if the staff adequacy of the evaluation plan has expenses rather than administrative execute MAP activities, whereas fees of been and will remain one of the criteria expenses. CCC has modified consultants who do similar work would in approving applications. § 1485.14(c)(8) to make clear that CCC be classified as promotional expenses.

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However, applicants are free to explain Note that this prohibition does not required. Similarly, CCC will require in their applications what promotional apply when the U.S. based organization notifications for adjustments below that activities overseas office staff are is providing administrative services to threshold only if the change is anticipated to conduct. an approved MAP funded overseas significant. No notification is required Comment: One respondent stated that office (as opposed to the U.S. home for minor changes in existing, approved the wording in § 1485.14(c)(8) regarding office). In that case, the activities activities or for deleting an activity. factors affecting allocations does not provided by the organization are Comment: Two respondents stated provide for any distinction when reimbursable whether they are that MAP Participants’ current practice making allocation decisions between administrative or direct promotion of reallocating funds among brand time salaried staff spend on under the MAP final rule, so long as the participants in the MAP Participants’ ‘‘administrative functions’’ (usually a organization is not also providing branded programs has allowed MAP minor amount of time spent by higher administrative services to the MAP Participants to expand brand paid staff) and time spent making use of Participant’s U.S. office(s) in the same participation by as much as 40 percent technical expertise to execute programs program year. per year. Therefore, they strongly and provide information to importers Comment: Nineteen respondents oppose proposed § 1485.14(i)(2)(i), and processors, which are the main provided similar comments in reference which would require MAP Participants reasons for employing higher paid staff. to § 1485.14(i), stating that the current to notify CCC of any increase in the Response: See response to prior notification process serves CCC’s and funding level for existing, approved comment. CCC does not believe that the Participant’s purposes. A number of activities addressing a single constraint § 1485.14(c)(8) must distinguish the respondents stated that although or opportunity by more than $10,000 or between time salaried staff spends on they believed some formalization of the 20 percent of the approved funding ‘‘administrative functions’’ and time process may be necessary, the proposed level, whichever is greater. They further salaried staff spends on executing MAP requirement to notify CCC of any stated that imposing a hard budget activities. All time spent by salaried budgetary change that is at least $10,000 ceiling and requisite advance staff is considered general or more is burdensome. They stated that notification would severely limit the administrative and overhead costs, not approval is only relevant at the flexibility for MAP Participants with direct promotional costs, as clarified in constraint level and that branded programs to reallocate funds the revised definition of ‘‘administrative acknowledgement of an activity level from companies that are unable to change would be more appropriate. The utilize them in favor of those that can. expenses or costs.’’ As noted in CCC’s respondents also recommended that Response: Respondents are mistaken response above, applicants are free to notification level be increased to that § 1485.14(i)(2)(i) requires a MAP explain in their applications what $25,000, to reflect the greater impact of Participant to notify CCC of any promotional activities overseas office an activity funded at this level. reallocation of funds among the staff are anticipated to conduct. Several of the comments stated that Participant’s branded program Comment: One respondent in a the language ‘‘may make adjustments participants. The notification comment to § 1485.29 stated further only if it submits a notification’’ implies requirement does not apply at the brand clarification was needed regarding the that any change to an activity, regardless company level for a MAP Participant eligibility of contracts with U.S. based of how minor, requires a notification. operating a brand program. The brand organizations that are retained to The respondents suggested that while program is approved by CCC at the implement or assist with approved the regulations should certainly provide program level, not at the company level. international market development that activities can be changed, details of CCC simply approves of the efforts. This respondent stated the when a notification is required could be Participant’s brand program in the proposed regulations do not completely more appropriately addressed in a aggregate; CCC does not review or clarify those domestic contracts that separate policy clarification. One approve a MAP Participant’s allocation would be deemed eligible for respondent stated that if CCC has of funds among brand participants in its reimbursement and those that would identified the need to track budget branded program. not be. changes more closely, they recommend Comment: Fourteen respondents Response: CCC’s current practice is to that it adopt a policy based on a stated they support the self-certification reimburse MAP Participants’ percentage change rather than a dollar requirement by small-sized entities expenditures for contracts with U.S. value and that the percentage be no less participating in a MAP Participant’s based organizations retained to than 25 percent of an existing budget activities in the branded program area. implement or assist with approved amount. The respondent further stated In addition, CCC received some international market development that FAS staff should be required to use comments encouraging CCC to be efforts, except when the U.S. based the UES system for approving such consistent in its policy to exclude large organization is also providing changes and that approval should not be companies from the program. The administrative services to the MAP based on a default period of 15 days. respondents stated that currently large Participant’s U.S. office(s). In other Response: CCC disagrees that the companies cannot apply and receive words, if a U.S. based organization ‘‘current notification process’’ serves MAP funding directly; however, a assumes any functions related to the CCC’s purposes. However, in response marketing company representing a large administration, direction or control of to the above comments, CCC has company may obtain assistance through the MAP Participant’s U.S. office(s) in a modified § 1485.14(i) to reduce the a SRTG. The respondents recommended program year, then no activity of any burden of notifications, adopting several that the applicant company as well as type undertaken by this organization in of the changes requested by the brand owner be required to certify the United States or overseas during that commenters. For example, CCC has that they meet SBA’s criteria of being a program year, including direct increased the threshold to $25,000 for small company. promotional services overseas, will be requiring notification to CCC of changes Response: CCC disagrees with reimbursable with MAP funds. CCC has to existing activities. This notification respondents’ recommendation that the codified this current practice in new must occur before the change is brand owner certify that it is a small § 1485.17(b)(19). implemented, but no approval is company. It is not CCC’s intention to

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limit the products that small export later than 21 days prior to signing Comment: Six respondents stated that trading companies can market under the participation agreements with brand § 1485.15(c)(7) should include ‘‘small- MAP branded program, regardless of the participants. CCC has modified sized entity or cooperative.’’ size of the company producing the § 1485.15(a) to note that CCC will notify Response: CCC agrees and has made product marketed. CCC believes that it all new and existing MAP Participants the requested change. is appropriate for a small export trading in writing in each Participant’s annual Comment: CCC received one comment company to promote its ability to approval letter and through the FAS asking whether a MAP Participant who consolidate export shipments that web site as to applicable submission had previously received an approval include products made by a wide range dates and dates for approvals of brand from CCC to use origin identification of companies. program operation procedures. terms other than those appearing in the Sec. 1485.15 Operational Procedures Comment: Two respondents current regulations would have to re- for Brand Programs commented on § 1485.15(a). One submit these terms again for approval respondent requested that FAS confirm when the new regulations become CCC received 32 comments on this that § 1485.15(a) does not apply to a effective. section. CCC has also modified U.S. agricultural cooperative that is a Response: CCC understands the § 1485.15(c)(6) to include additional MAP Participant and operates the commenter to be referring to terms that are acceptable origin cooperative’s own brand promotion § 1485.15(c)(6), which lays out the identification, currently set forth in program. Another respondent requirement that MAP activities identify MAP Notice 97–020. In addition, CCC commented that this section appears to the U.S. origin of the promoted has modified § 1485.15(c)(6) to advise apply to MAP Participants that products. CCC considers that an that CCC may temporarily waive the administer brand promotion programs approval under the previous regulations U.S. origin labeling requirement where on behalf of third party brand would constitute an approval under the CCC has determined that such labeling participants that do not have a direct new regulations. A MAP Participant will likely harm sales rather than help agreement with CCC. The respondents would not have to re-submit these terms them. requested clarification be made on Comment: Three respondents made again for approval under the new whether this section does not apply to similar comments in reference to regulations. § 1485.15(a). One respondent U.S. nonprofit agricultural cooperatives CCC has also modified § 1485.15(c)(6) recommended that the requirement for that are MAP Participants operating to include additional terms that are an annual submission of program their own brand program. acceptable origin identification, operational procedures be changed to Response: CCC confirms that currently set forth in MAP Notice 97– require FAS approval only once, after § 1485.15(a) applies only to MAP 020. Specifically, CCC has added the which FAS would merely be notified of Participants that operate brand terms ‘‘American’’, ‘‘United States of any changes. Two respondents proposed promotion programs that include third America’’, as well as any state or that the review of procedures and party brand participants, and does not territory of the United States of America documents used to administer the apply to U.S. agricultural cooperatives spelled out in its entirety. Section branded program be conducted during that operate their own brand programs. 1485.15(c)(6) also now clarifies that the the annual compliance review. CCC has amended the definition of use of approved origin terms as a Response: CCC disagrees with the brand participant in § 1485.11 to make descriptor or in the name of the product recommendation to remove the annual clear it does not include a U.S. (e.g., Texas style chili, Bob’s American requirement and has retained the agricultural cooperative operating its Pizza) does not satisfy the product requirement for an annual submission of own brand program. origin requirement. Section program operational procedures even if Comment: One respondent stated that 1485.15(c)(6) also now encourages the there are no substantial changes in the § 1485.15(b) and § 1485.15(c) seem to phrases ‘‘product of ’’, ‘‘grown in’’ or procedures. CCC expects that any MAP imply that contracts between ‘‘made in’’, but does not require them. Participant that is operating a brand cooperatives and third party MAP Notice 97–020 will be removed program would review its procedures participants be preapproved by CCC from the FAS Web site. and documents annually. each year. The respondent stated that In addition, CCC notes that in certain CCC disagrees with the respondents’ this requirement is unreasonable and situations, CCC has temporarily waived proposal to have CCC review the burdensome since nonprofit farmer the requirement to identify the U.S. procedures during the annual owned cooperatives carefully protect origin of products promoted under the compliance review in lieu of a separate their farmer members and their brand MAP brand program. For example, submission. The purpose of the CCC on each and every contract into which current MAP Notice 09–007 temporarily review is to approve a plan at the start they enter. waives this requirement for MAP brand of a program year, before the program Response: CCC disagrees that activities conducted in certain Middle begins operation. Moreover, during the § 1485.15(b) and § 1485.15(c) imply that East countries. Accordingly, CCC has compliance review, CCC may review the CCC pre-approves a MAP Participant’s modified § 1485.15(c)(6) to advise that implementation of the plan, rather than contracts with brand participants. CCC may temporarily waive the U.S. the plan itself. Section 1485.15(b) simply requires that origin labeling requirement where CCC In response to other comments the MAP Participant’s proposed has determined that such labeling will requesting additional time for operational procedures be pre-approved likely harm sales rather than help them implementation, CCC has delayed the by CCC. It does not require CCC to pre- and that such determinations will be effective date of this final rule until the approve individual contracts. Section announced to MAP Participants via a MAP Participant’s 2013 program year 1485.15(c) simply sets forth items that MAP notice issued on FAS’ Web site. (either 01/01/2013 or 07/01/2013). CCC must be addressed in each contract with MAP Notice 09–007 will continue to be has deleted the requirement in a brand participant. As discussed above, available on the Web site for § 1485.15(a) that the MAP Participant U.S. agricultural cooperatives operating informational purposes and reflects must submit its proposed brand their own brand program are not ‘‘brand CCC’s current administration of the program operational procedures not participants.’’ MAP program.

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Comment: One respondent stated that of the program.’’ Because the 5-year international trade shows in foreign 5 years is an unreasonable time to keep limitation is established by statute, CCC countries will not be considered when records, stating that the IRS requires cannot extend the country limitation to determining such participants’ time in records to be kept for only 3 years. 8 years as requested by the respondents. country for purposes of the 5 year Response: CCC disagrees with the While the statute provides the Secretary graduation requirement. Specifically, as respondent. The Agricultural Trade Act the discretion to waive the graduation reflected in MAP Notice 09–005, CCC of 1978, as amended, at 7 U.S.C. requirement in individual has compiled a list of international trade 5662(a)(1) requires the Secretary of circumstances where the Secretary shows that CCC ‘‘exempts’’ from the Agriculture ‘‘to require by regulation believes such further assistance is graduation requirement. A show on this each exporter or other participant under necessary to achieve the goals of MAP, list meets two requirements: (1) It is a the [MAP and other] program[s] to CCC has no authority to ‘‘delete’’ the food or agricultural show, with no less maintain all records concerning a ‘‘Sunset Rule’’ as requested by the than 30% of exhibitors selling food or program transaction for a period not to commenters. CCC also disagrees with agricultural products, and (2) it is an exceed 5 years after completion of the the comment that the ‘‘Sunset Rule’’ be international show, meaning it targets program transaction, and to permit the applied to a specific market and not to buyers, distributors and the like from Secretary to have full and complete a country. CCC has defined ‘‘market’’ in more than one foreign country and no access, for such 5-year period, to such the proposed and final rules to mean the less than 15% of the show’s visitors are records.’’ country or countries targeted by an from countries other than the host Comment: Five respondents asked activity. Lastly, CCC does not have any country. CCC to clarify whether cooperatives information that suggests that CCC is not planning on changing its were still exempt from the 5-year exempting export trading companies practice and has codified MAP Notice graduation rule or if this had changed. from the 5-year limitation is necessary 09–005 in § 1485.15(d). MAP Notice 09– Response: CCC understands the to achieve the goals of MAP. CCC 005 will be removed from the FAS Web commenters to be referring to the retains the discretion to waive the 5- site, as parts are now redundant with statutory provision in 7 U.S.C. § 5623 year limitation, if CCC determines that the final rule, and a new MAP notice note, which states that MAP assistance further assistance in a particular will be posted on FAS’ Web site listing may not be provided to promote a situation is in the best interests of the the international trade shows that CCC specific branded product in a single MAP. ‘‘exempts’’ from the graduation market for more than 5 years unless the Comment: Two respondents requirement. If a MAP Participant Secretary determines that further commented that they supported believes that a show should be added to assistance is necessary in order to meet continuing exemptions for international this list, the Participant should contact the objectives of the program. Currently, shows that reflect a broad international FAS. CCC exempts U.S. agricultural attendance. Comment: One respondent stated that cooperatives from the 5 year rule. CCC Response: CCC understands the because they do not have the facilities determined in 1998 that continued commenters to be referring to CCC’s for conducting investigations of support for U.S. agricultural practice, as reflected in MAP Notice 09– corporate ownership structure, they cooperatives was necessary to meet 005, of not counting a Participant’s proposed that the current process of MAP’s objectives, and that attendance at certain international trade self-certification continue. determination remains in place. CCC shows when determining whether a Response: CCC notes that will publish this determination in a specific branded product has been § 1485.15(c)(7) as proposed allowed MAP notice on the FAS Web site. promoted in a single market for more brand participants to self-certify as to Comment: Three similar comments than 5 years. CCC will continue this status as a small-sized entity and that stated that the ‘‘Sunset Rule’’ should be practice and has codified it in the final rule continues the current deleted. The respondents suggested that § 1485.15(d) of the MAP final rule. process of self-certification. if the rule is maintained, then it should Many international trade shows apply to a specific market and not to a feature buyers and sellers from many Sec. 1485.16 Contribution Rules country. One respondent stated that the countries. Many of the shows are held CCC received 20 comments on this 5-year limitation is the single greatest in the same country annually or section. Below are CCC’s responses. In barrier to program participation and biannually (e.g., SIAL and ANUGA are addition, CCC has clarified in recommended that the country held in alternating years in France and § 1485.16(c) that a MAP Participant’s limitation be extended to 8 years per Germany, respectively). Many U.S. U.S. office’s administrative costs may be market. Another respondent companies attend such shows to meet included in calculating the amount of recommended that export trading with buyers from many countries, not contributions the MAP Participant companies be considered for exemption just the host countries. However, given contributes to MAP activities. Similarly, from the 5-year limitation, if it can be that CCC may not provide assistance to CCC has clarified in § 1485.16(d)(2) that proven that any additional marketing a single company for brand promotion contributions are subject to the MAP efforts after 5 years will be for different in a single country for more than 5 regulations and the applicable OMB products beyond those previously years, many small brand companies circulars on cost principles, to the marketed. would face graduation from a host extent these principles do not directly Response: CCC understands the country after exhibiting at one of these conflict with the provisions of this commenters to be referring to the international trade shows for five years, subpart. In addition, CCC has removed statutory provision in 7 U.S.C. § 5623 even if the companies have had no other the cross-reference to § 1485.16(c) in note, which states that ‘‘[t]he Secretary activities in that country and § 1485.16(d)(2) as unnecessary. should not provide assistance under the participating in the show is used Comment: Fourteen respondents [MAP] program to promote a specific exclusively as a gateway for developing provided similar comments in reference branded product in a single market for customers in other countries. to § 1485.16, stating it would be clearer more than 5 years unless the Secretary Therefore, to further the objectives of to begin the subpart by stating that any determines that further assistance is MAP, CCC has determined that brand expense that is listed as eligible for necessary in order to meet the objectives participants’ participation in certain reimbursement can also be considered a

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contribution if paid with industry Comment: One respondent sponsored or endorsed a U.S. pavilion at funds. The respondents stated that then commented that the proposed regulation the exhibit or show. In that situation, the list would only need to state what at § 1485.16(b) provides that ‘‘in MAP MAP funds are used to reimburse the is not eligible as a contribution, the brand promotion programs, a brand travel and/or non-travel expenditures of assumption being that anything that is participant shall contribute at least 50 only those MAP Participants located not listed is eligible. They stated this percent of the total eligible expenditures within the U.S. pavilion. CCC believes change would greatly reduce the made on each approved brand it is important to maintain a unified confusion over items which now appear promotion.’’ It suggested that to be U.S. presence at these shows, with all in both places, sometimes with slightly consistent with the quoted language, exhibitors contributing fairly and different wording. and with the understanding that a brand supporting the U.S. pavilion. MAP Response: CCC believes that eligible promotion program can be operated by Notice 01–004 will be removed from the contributions are clear as presented in a MAP Participant, as well as a brand FAS Web site. § 1485.16. CCC notes that participant, the phrase ‘‘a brand Finally, CCC has added a cross § 1485.16(d)(2)(xxi) specifically participant’’ in § 1485.16(b) should be reference to § 1485.17(d) in § 1485.17(b) provides that ‘‘the cost of any activity replaced with ‘‘a brand participant or and § 1485.17(c). expressly listed as reimbursable in this Participant’’ or similar language. Comment: Three respondents subpart’’ may be considered a Response: CCC agrees with the provided similar comments in reference contribution if paid with Participant or comment and has modified § 1485.16(b) to § 1485.17(b)(4). Two comments stated industry funds. accordingly. that the rule as written may be interpreted to allow the cost of product Comment: One respondent stated that Sec. 1485.17 Reimbursement this section does not specifically samples to be reimbursed. The CCC received 330 comments on this mention industry travel expenses as respondents stated that ‘‘[a]s written, section. Below are CCC’s responses to being counted as a contribution. This this rule may be interpreted to allow the the comments. In addition, CCC has cost of promotional samples themselves respondent stated that it urges FAS to clarified various provisions. For to be reimbursed. We feel that the specifically state that industry travel example, CCC has made explicit in existing approach, in which costs of and other industry expenditures that are § 1485.17(b) that reimbursements are distributing samples are eligible, but the in support of the broader mission of subject to the MAP regulations and the costs of the samples themselves are not, Participants be listed as eligible to count applicable OMB circulars on cost remains appropriate within WTO toward contributions. principles, to the extent these principles eligibility. We recommend that this be Response: CCC allows domestic travel do not directly conflict with the clarified.’’ expenses paid by the Participant to be provisions of this subpart. CCC has also One comment stated that the current counted as a contribution, pursuant to modified § 1485.17(c)(8) to codify CCC’s MAP regulations limit the § 1485.16(d)(2)(xvii). Additionally, at current practice of requiring MAP reimbursement of giveaways to U.S. § 1485.16(d)(2)(xxi), CCC allows to be Participants to provide documentation dollars and suggested that the maximum counted as a contribution the cost of any establishing the full fare economy class reimbursement be increased to reflect activity paid by the Participant and rate to support their reimbursement inflation since the 1980s. expressly listed as reimbursable in this claims, as well as clarify that One respondent stated that the subpart, which includes travel. In international travel expenses for purchase of samples locally on a case- response to the comment, however, CCC activities that occur inside or outside by-case basis with a maximum cost per has modified the definition of the United States are reimbursable. In sample not to exceed the allowable cost ‘‘contribution’’ in § 1485.11 to include addition, CCC has deleted of a premium should be allowed. explicitly expenditures made by entities § 1485.17(c)(9), which provided that per Response: CCC’s practice has been in the MAP Participant’s industry in diem was reimbursable, because it is and continues to be that the cost of support of the entities’ related redundant with § 1485.17(c)(8) (which product samples is not reimbursable promotion activities in the markets now explicitly includes per diem). under MAP. In response to the first covered by the MAP Participant’s Section 1485.17(c)(8) allows the commenters above, CCC has clarified agreement. reimbursement of ‘‘international travel this issue and modified § 1485.17(b)(4), Comment: One respondent stated the expenditures,’’ which include which provides that the costs of in-store proposed rule § 1485.16(d)(2)(xvi) reads transportation, per diem, and and food service promotions, product eligible contributions include ‘‘fees for miscellaneous expenses. demonstrations, and distribution of participating in U.S. Government CCC has also added § 1485.17(b)(17), promotional samples are reimbursable. activities’’ and it requested clarification which allows for reimbursement of Section 1485.17(b)(4) now explicitly of the term ‘‘U.S. Government international travel expenditures (e.g., notes that the purchase of product activities.’’ transportation, per diem, and samples are not reimbursable and Response: From time to time, the U.S. miscellaneous expenses) for brand replaces the term ‘‘promotional Government financially sponsors companies participating in foreign trade samples’’ with ‘‘product samples.’’ CCC activities or endorses activities, missions subject to certain conditions. also notes that § 1485.17(d)(5) already particularly overseas, that promote This codifies MAP Notice 03–004. MAP specifically prohibits the reimbursement export opportunities. These could Notice 03–004 will be removed from the of the cost of product samples. In include trade shows, trade missions, FAS Web site. addition, as noted above, CCC has restaurant promotions, or a variety of Similarly, CCC has codified MAP modified § 1485.11 to include a other activities. To clarify this further, Notice 01–004 in new § 1485.17(b)(18). definition of ‘‘product samples.’’ CCC has modified § 1485.16(d)(2)(xvi) to MAP Notice 01–004 describes CCC’s CCC disagrees with the view that the note that the activities are ‘‘U.S. longstanding practice of limiting costs of product samples should be government sponsored or endorsed reimbursement of expenditures related reimbursed. export promotion activities.’’ CCC has to retail, trade, or consumer exhibits or CCC does not agree with the made a corresponding edit to shows, whether held inside or outside commenter requesting that the current § 1485.17(d)(21). the United States, where USDA has MAP regulation’s limit on the

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reimbursement of giveaways be use of the word ‘‘discrete’’ in the appropriate notice to MAP Participants increased or that it be codified in the preceding language. Several commented through written MAP notices posted on MAP final rule. As noted above, CCC that they presume that the use of the FAS’ Web site. MAP Notice 97–002 will observes that the cost of samples of the term ‘‘discrete’’ applies to or refers to be removed from the FAS Web site, and promoted MAP product are not any approved activities such as a new notice will be issued setting forth reimbursable, regardless of whether the described in the regulations. The a reimbursement allowance for samples are giveaways or not. Regarding respondents stated that it would be giveaways, awards, prizes, gifts and the reimbursement of giveaways of non- clearer to use the term ‘‘individual’’ other similar promotional materials. MAP promoted products in general, the rather than ‘‘discrete,’’ as that might Comment: One respondent MAP final rule is written in a way to better define the activity. commented in reference to allow CCC to counter inflation, without Response: CCC agrees with the § 1485.17(b)(12) and couponing. The unduly limiting its flexibility. As respondents and has made the suggested commenter suggested that CCC allow discussed below in CCC’s response to change substituting the term ads to be reimbursed if the ad contains similar comments, rather than specify a ‘‘individual’’ for the term ‘‘discrete’’ in coupons for other products but does not reimbursement amount for giveaways in the final rule for clarity. contain a coupon for MAP Participant § 1485.17(b)(11), CCC will set a Comment: Fifteen respondents products. reimbursement limit during the course provided similar comments in regard to Response: CCC confirms that of its administration of MAP and change proposed § 1485.17(b)(10) (now reimbursement is allowed if ads contain that limit, as necessary, with § 1485.17(b)(11)), which provided that coupons for other products but do not appropriate notice to MAP Participants the cost of giveaways, awards, prizes, contain a coupon for MAP Participant through written MAP notices posted on gifts and other similar promotional products. In response to the commenter, FAS’ Web site. materials is reimbursable, subject to CCC has revised § 1485.17(b)(12) (now Comment: Three respondents such reimbursement limitation as CCC § 1485.17(b)(13)) to make clear that only commented in reference to may, from time to time, determine and the design, production and distribution § 1485.17(b)(8) supporting the inclusion announce in writing to all MAP of coupons for products other than the of eligibility of subscriptions. All Participants and on the FAS Web site. MAP Participant’s promoted products recommended that CCC change the The respondents stated that they are reimbursable. wording to remove the words ‘‘to presume that announcements pertaining In addition, CCC has revised publications’’ and instead state that to the reimbursement limitations will be § 1485.17(b)(1), which allows ‘‘CCC will reimburse in whole or in part in the form of Program Announcements advertising to be reimbursed, including subscriptions that are of a technical, or similar instruments. Four stated that advertising of price discounts, to make economic, or marketing nature and they agree with the need for flexibility clear that advertising associated with relevant to the approved activities.’’ in this area and supported CCC’s coupons or price discounts for MAP- One respondent proposed adding approach. promoted products is not reimbursable. language to allow for expenditures Response: CCC understands that the CCC has also modified both provisions when the internet is used as a staff commenters are referring to CCC’s to note that if otherwise reimbursable resource. It gave as an example for practice of issuing Market Access advertising or coupon activities include market intelligence, economic data, and Program notices. MAP Notice 97–002 both coupons or price discounts for key policies and procedures to be currently sets out a $1.00 products other than the MAP accessible via their internet site to their reimbursement limit for promotional Participant’s promoted products as well international offices and U.S. staff items (which does not include product as for the MAP-promoted products, worldwide. samples). It also sets out the conditions expenditures for such activities will not Response: CCC agrees with the first under which such reimbursement is be reimbursed in whole or in part (e.g., general comment and has modified available. CCC has determined to codify expenditures may not be prorated and § 1485.17(b)(8) (now § 1485.17(b)(9)), as MAP Notice 97–002, in part. Section submitted for reimbursement). This some appropriate subscriptions could be 1485.17(b)(11), which allows codifies MAP Notice 05–001, which will to web-based information that may not reimbursement for giveaways, awards, be removed from the FAS Web site. traditionally be thought of as prizes, gifts and other similar Finally, CCC has modified ‘‘publications.’’ CCC has also made a promotional materials, now notes that § 1485.17(d)(9) to clarify that CCC will corresponding change to reimbursement is available only when: not reimburse the cost of any coupon § 1485.16(d)(2)(x). CCC does not agree (1) the items are described in detail with redemption or price discounts ‘‘of the with the second comment to add a per unit cost in an approved strategic MAP promoted commodity.’’ language to allow reimbursement of plan and (2) distribution of the Comment: Sixteen similar comments internet expenditures because, as promotional item is not contingent upon were received regarding § 1485.17(b)(12) submitted, this appears to be a function the consumer, or other target audience, and the design, production and of the MAP Participant’s home office, purchasing a good or service to receive distribution of coupons. The and, thus, is not reimbursable under the the promotional item. respondents requested that CCC clarify program unless otherwise authorized in CCC believes that specifying a dollar if this section is applicable to both § 1485.17(c)(22). amount in the new MAP regulations is branded and generic. Three comments Comment: Fourteen respondents unnecessarily restrictive and does not stated that they strongly support the commented regarding proposed provide CCC sufficient flexibility to deal clarification to incorporate the § 1485.17(b)(9) (now § 1485.17(b)(10)), with changing economic circumstances eligibility of coupon design, production which provided that the cost of such as inflation. Therefore, rather than and distribution. ‘‘demonstrators, interpreters, translators, specify a reimbursement amount in In addition, eighteen respondents receptionists, and similar temporary § 1485.17(b)(11), CCC will retain the stated that clarification was needed workers who help with the proposed rule’s discretion. Thus, CCC regarding what is covered as ‘‘branded,’’ implementation of discrete promotional will set a reimbursement limit during as ‘‘generic,’’ or as both, throughout the activities’’ is reimbursable. These the course of its administration of MAP regulations. Two respondents stated that respondents were concerned with the and change that limit, as necessary, with the language listed in § 1485.17(b)(1)

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through § 1485.17(b)(15) seems to agreement or regulatory requirements), confirm past or to ensure future program describe expenses eligible for entities and § 1485.17(e)(16) (which provided agreement or regulatory compliance. conducting a branded program, and that that CCC will not reimburse Participants This is not a change from the current expenses listed from § 1485.17(c) for independent evaluations or audits if regulations. Finally, CCC notes that this through § 1485.17(d) addressed generic CCC determines such evaluation or section does not prohibit reimbursement only. They requested clarification if this audit is needed to confirm past or of OMB Circular A–133 audits, which is understanding was correct. ensure future program agreement or specifically allowed, under the Another similar comment was regulatory compliance). The appropriate circumstances, per received which stated that more respondents requested further clarity on § 1485.17(b)(14). specificity was needed for branded and when CCC will pay for an audit. They CCC disagrees with the comments that generic reimbursement rules. One also stated that references to ‘‘applicable the MAP final rule should avoid respondent stated that since Web site parts of this title’’ should be avoided references to ‘‘applicable parts of this costs were previously not considered an and instead, clear language should be title.’’ As noted in § 1485.10 of both the eligible branded expense and the provided. For example, the respondents proposed and final rules, USDA eligibility of subscription costs and asked whether, in light of regulations other than the MAP final audit costs do not appear to pertain to § 1485.17(b)(13), which provides for rule also apply to USDA recipients of the branded program, they would like reimbursement for A–133 audits, federal financial assistance. Some confirmation that CCC now intended for § 1485.17(c)(17) means MAP will pay regulations apply to all MAP these expenses to be eligible for both the for other audits that give the Participant Participants. Others apply only to generic and branded programs. assurances that it is in compliance with certain categories of MAP Participants. Two respondents stated that in MAP rules, i.e., operational or forensic Because of the varied nature of MAP reference to § 1485.17(c)(16), the audits. Six respondents also provided Participants, it would be unwieldy to proposed rule should make it clear that similar comments in reference to specify which other regulations apply branded programs are specifically § 1485.17(e)(16), questioning if all and when for each provision in the included. financial audits were not reimbursable. MAP final rule. However, in response to Response: CCC has modified The respondents also asked if OMB the comment, wherever the MAP final § 1485.17(b) to clarify that it addresses Circular A–133 audits were rule has explicitly referred to both brand and generic promotional reimbursable given that this is not ‘‘applicable parts of this title,’’ CCC has activities. Therefore, all subparagraphs required by CCC but by the federal added illustrative examples of what under § 1485.17(b) are applicable to government. parts potentially apply to different MAP both generic and branded programs, Response: In response to these Participants. including § 1485.17(b)(9) (allowing comments, CCC has modified In addition, CCC notes that subscription costs), § 1485.17(b)(13) § 1485.17(b)(13) (now § 1485.17(b)(14)) § 1485.10(b) provides an illustrative list (allowing certain coupon costs), to clarify that this section refers to OMB of other USDA regulations of general § 1485.17(b)(14) (allowing certain audit Circular A–133 audits. Thus, for brand application that may apply to MAP and costs) and § 1485.17(b)(16) (allowing and generic promotions, such audits are MAP Participants. The section also puts Web site costs). reimbursable if the MAP is the MAP MAP Participants on notice that they Section 1485.17(c) addresses generic Participant’s largest source of Federal must comply with the relevant promotional activities only. funding. Section 1485.17(d) was removed and Also in response to these comments, provisions of the CCC Charter Act and the text of that section added to the CCC has clarified § 1485.17(c)(17) (now Title VI of the Civil Rights Act of 1964 definition of generic promotion in § 1485.17(c)(16)). That section now and related civil rights regulations and § 1485.11. Subsequent subsections of provides that it is subject to the policies. § 1485.17 have been reordered. limitations set out in § 1485.17(d)(which Finally, in response to the comments, As discussed above, CCC does not now lists items for which CCC will not CCC has also added new § 1485.10(b)(4), reimburse the design, production or reimburse Participants). CCC has also which lists additional laws and distribution of coupons for the MAP deleted the reference to ensuring regulations that are applicable to MAP Participant’s promoted products. CCC compliance with ‘‘regulatory Participants. has modified § 1485.17(b)(12) (now requirements’’ in this section. Section Comment: Fourteen similar comments § 1485.17(b)(13)) to make this clear. 1485.17(c)(16) now provides that for stated that previous policy guidance Finally, CCC disagrees with the generic promotions only, independent announced reimbursement of the costs respondents who requested that evaluations and audits not otherwise of developing, updating, and servicing branded programs be included in required by CCC to ensure compliance non-branded web sites on the internet § 1485.17(c)(15), which reimburses with program requirements are and stated that they seek clarification on market research for generic promotions reimbursable. CCC observes, however, whether this new regulation supersedes only. That section will remain that, as noted in new § 1485.17(d)(31), the previous guidance. Three comments applicable only to generic promotions. expenditures associated with a MAP also stated that they strongly supported Comment: Fourteen respondents Participant’s creation or review of its web site development expenses being commented in reference to ‘‘audits’’ fraud prevention program, contracting eligible for both branded and generic referenced in § 1485.17(b)(13) (which procedures, or brand program programs. allowed for reimbursement of an audit operational procedures are not Response: CCC understands that the of a MAP Participant that was required reimbursable. commenters are referring to CCC’s by the applicable parts of this title if the With respect to the comments practice of issuing Market Access MAP is the Participant’s largest source questioning whether § 1485.17(e)(16) Program notices. CCC issues these MAP of federal funding), § 1485.17(c)(17) prohibits reimbursement of all financial notices for informational purposes. (which allowed for reimbursement of audits, CCC confirms that 1485.17(e)(16) While these notices have no legal effect, independent evaluations or audits not (now § 1485.17(d)(16)) prohibits they alert MAP Participants to otherwise required by CCC if performed reimbursement only of evaluations or information regarding the to ensure compliance with program audits that are required by CCC to administration of the MAP program that

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CCC believes is beneficial to share with business class rates would be acceptable that the Participants meet the MAP Participants. and announce that policy in writing to circumstances that may justify air travel CCC confirms that the MAP final rule all MAP Participants and on the FAS in excess of the full fare economy rate. sets out the reimbursement rules for Web site. CCC has now articulated in Comment: One respondent stated its MAP Participants and supersedes all § 1485.17(c)(8) the limited opposition to § 1485.17(e)(15), given prior inconsistent guidance. circumstances under which CCC, after that refundable airline tickets are often Specifically, § 1485.17(b)(15) (now prior written approval, will reimburse ‘‘triple or more the cost of non- § 1485.17(b)(16)), applicable to both air travel up to the business class rate. refundable tickets’’. The respondent brand and generic activities, and These circumstances are the following: stated that this rule has the effect of § 1485.17(c)(31), applicable to generic (a) Regularly scheduled flights substantially increasing overall travel activities, provide that CCC will between origin and destination points costs under the program and also that reimburse, in part or in whole, the cost do not offer economy class (or the ability to claim an occasional non- of developing, updating and servicing equivalent) airfare and the MAP refundable airline ticket and associated certain types of Web sites. In response Participant receives written fees, especially for an international to the comments, however, CCC has documentation from its travel agent to buyer (whose travel is both less modified § 1485.17(c)(31) to include that effect at the time the tickets are predictable and less accountable) would additional conditions regarding Web purchased; be vastly exceeded by the overall higher site content that CCC currently requires (b) Business class air travel is costs for the less restrictive tickets. as a condition of reimbursement, as necessary to accommodate an eligible The respondent also asked for reflected in MAP Notice 01–003. MAP traveler’s disability. Such disability clarification of ‘‘travel restricted by a Notice 01–003 has thus been codified must be substantiated in writing by a U.S. government action’’ and asked if and will be removed from FAS’ Web physician; and denial by U.S. officials of a visa request site. Section 1485.17(c)(31) now (c) An eligible traveler’s origin and/or constituted a restriction by a U.S. provides that expenditures associated destination are outside of the Government action. with developing, updating, and continental United States and the Response: CCC disagrees. Section servicing Web sites on the Internet are scheduled flight time, beginning with 1485.17(e)(15) (now § 1485.17(d)(15)) reimbursable if the Web sites: (1) the scheduled departure time, ending provides that CCC will not reimburse Contain a message related to exporting with the scheduled arrival time, and the cost of any unused non-refundable or international trade, (2) include a including stopovers and changes of airline tickets or associated fees, except discernible ‘‘link’’ to the FAS/ planes, exceeds 14 hours. In such case, where travel was restricted by U.S. Washington homepage or an FAS per diem and other allowable expenses government action or advisory. The overseas homepage, and (3) have been will also be reimbursable for the day of commenter has provided no data that specifically approved by the appropriate arrival. However, no expenses will be the effect of this proposed section FAS commodity division. Expenditures reimbursable for a rest period or for any would increase overall travel costs related to Web sites or portions of Web non-work days (e.g., weekends, under MAP. This is not a change from sites that are accessible only to an holidays, personal leave, etc.) the current MAP rule, and CCC does not organization’s members are not immediately following the date of have any reason to believe that this reimbursable. Reimbursement claims for arrival. Alternatively, in lieu of policy has increased costs to the MAP Web sites that include any sort of reimbursing up to the business class rate program beyond what it would have ‘‘members only’’ sections must be in such circumstances, CCC will been had the commenter’s proposal prorated to exclude the costs associated reimburse economy class airfare plus been adopted. Finally, CCC notes that with those areas subject to restricted per diem and other allowable travel denial of a visa request would not access. expenses related to a rest period of up constitute a restriction by a U.S. Finally, CCC notes that § 1485.16(b) to 24 hours, either en route or upon Government action. ‘‘Travel restricted provides that in MAP brand promotion arrival at the destination. For a trip with by a U.S. government action’’ would programs, MAP Participants must multiple destinations, each origin/ include, for example, if all travel from contribute at least 50% of the total destination combination will be a country was prohibited due to an eligible expenditures made on each considered separately when applying epidemic. approved brand promotion. At this time, the 14 hour rule for eligibility of Comment: Several respondents CCC reimburses qualified Web site reimbursement of business class travel questioned whether airline change fees expenses 100% for generic promotions or rest period expenses. A stopover is are reimbursable. and 50% for brand promotions. the time a traveler spends at an airport, Response: Yes. Airline change fees are Comment: Ten respondents provided other than the originating or destination reimbursable provided that such fees comments in regard to § 1485.17(c)(8). airport, which is a normally scheduled meet certain conditions. CCC They questioned under what part of a flight. A change of planes is the understands that, in order to most circumstances business class travel time a traveler spends at an airport, effectively use their MAP funding, would be reimbursed. The other than the originating or destination Participants at times purchase airline commentators stated that they felt it airport, to disembark from one flight tickets at a price that is less than the full would be reasonable to be reimbursed and embark on another. All travel fare economy rate. If a Participant for business class rate for flights over a should follow a direct or usually purchases a ticket for less than the full specific duration (i.e. over 12 hours). traveled route. Under no circumstances fare economy rate and subsequently Response: CCC recognizes that should a traveler select flights in a changes the ticket, a change fee may be circumstances might arise where manner that extends the scheduled incurred. CCC considers this change fee business class flights may be necessary. flight time to beyond 14 hours in part to be reimbursable up to the point that Thus, CCC has modified § 1485.17(c)(8) to secure eligibility for reimbursement the sum of the ticket purchase price and of the proposed rule. Originally, that of business class travel. any ticket change fees equal, but do not section as proposed provided that CCC CCC believes that requiring CCC’s exceed, the full fare economy rate. To would determine a policy regarding the prior written approval will allow both clarify, if the sum of the ticket purchase appropriate circumstances when MAP Participants and CCC to confirm price and any ticket change fees exceed

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the full fare economy rate, only the full CCC has issued several MAP notices breakfast, lunch, dinner, receptions, and fare economy rate is reimbursable. that provide further information on refreshments at approved activities, Section 1485.17(b)(8), § 1485.17(b)(17) CCC’s current practice of reimbursing including miscellaneous courtesies such and § 1485.17(c)(8) have been modified telephone calls. MAP Notice 03–006 as checkroom fees, taxi fares and tips; to specify that program-related details CCC’s allowances for program- and decorations for a special international air transportation, related, emergency and personal promotional occasion). The respondents including any fees for modifying the telephone and internet expenses while requested that CCC clarify that STRE originally purchased ticket, will be on eligible travel. This Notice will incurred in the United States at reimbursed at a rate not to exceed the remain on the FAS Web site. MAP approved activities that demonstrated a full fare economy rate, as allowed under Notice 99–009 (redundant with MAP positive impact on agricultural exports, the U.S. Federal Travel Regulations (41 Notice 03–006) and MAP Notice 98–017 be eligible for reimbursement under CFR parts 301 through 304). (discussing reimbursement of wireless MAP. One commenter asked for further Comment: Seventeen respondents phone airtime devoted to program clarification of STRE regulations provided similar comments in reference activities and now redundant) will be incurred in foreign and domestic to § 1485.17(c)(13), which stated that removed from the FAS Web site. markets. more flexibility is needed for electronic CCC disagrees with the commenter Response: Generally, STRE incurred communications, which are becoming a who requested that the regulations outside of the United States is more important part of the marketing avoid the burdensome requirements of reimbursable. CCC, however, agrees that mix for Participants, both branded and logging individual calls in minutes or under certain limited circumstances, generic. Fourteen of the respondents sessions to claim reimbursement. CCC STRE may be critical to the success of stated that the cost of service is the notes that all reimbursement claims an activity being carried out in the largest component of the costs of most must be substantiated by sufficient United States. Therefore, CCC has devices, such as smartphones, and it is supporting documentation per modified § 1485.17(c)(19) to clarify that recommended that CCC include as § 1485.21(d)(6). In order to claim STRE incurred outside the United States reimbursable a monthly allowance. reimbursement for usage costs, is reimbursable and that STRE incurred They stated that as with giveaways therefore, the MAP Participant must within the United States may be and international travel, the identify the costs to be reimbursed. reimbursed under MAP upon prior determinant CCC statement may be Thus, as CCC has noted above, the written approval by CCC. As with all added from time to time to allow for monthly service charge for a caller usage reimbursable expenses, such STRE must future flexibility. One respondent stated plan with unlimited minutes must be be incurred in conjunction with an that it recommends that the cost of incurred primarily in furtherance of an approved MAP activity. using these devices be included as approved activity and the Participant is In response to the request for further reimbursable expenses and that the responsible for documenting that such clarification of STRE, CCC has codified, provisions of the regulations avoid the plan was used primarily in further of an in part, MAP Notice 97–016 in burdensome requirements of logging approved activity. In contrast, under a § 1485.17(c)(19). That section now individual calls in minutes or sessions. caller usage plan that charges by the specifies that MAP Participants are Another commented that the regulations minute, only charges for calls incurred required to use the American Embassy should provide for payment of monthly in furtherance of an approved activity representational funding guidelines for service fees for portable electronic would be reimbursed under MAP and breakfasts, lunches, dinners and devices for staff stationed overseas, the Participant is responsible for receptions. MAP Participants may provided the devices are primarily used detailing which calls are properly exceed Embassy guidelines only when for Participant market development reimbursed with MAP funds. they have received written authorization purposes. Comment: The respondents asked if from the FAS Agricultural Counselor at Response: Section 1485.17(c)(13) of § 1485.17(e)(16) means that CCC will the Embassy. The amount of the proposed rule provided that, for reimburse for audits of subcontractors. unauthorized STRE expenses that generic promotions only, CCC would Response: No, all of the listings under exceed the guidelines will not be reimburse the cost of the purchase, § 1485.17(e) (now § 1485.17(d)) are not reimbursed. MAP Participants must pay lease, or repair of, or insurance reimbursable. the difference between the total cost of premiums for, capital goods that have Comment: One respondent stated that STRE events and the appropriate an expected useful life of at least 1 year, reimbursement for market research amount as determined by the including portable electronic should be moved under subheading (b), guidelines. MAP Notice 97–016 will be communications devices (including thus allowing for reimbursement for removed from the FAS Web site. mobile phones, wireless email devices, market research under both generic and Comment: Seven comments were personal digital assistants). That section branded programs. received stating miscellaneous does not deal with reimbursability of Response: CCC disagrees with the courtesies such as checkroom fees, taxi usage costs of electronic devices. CCC suggested comment to make market fares and tips, and decorations for adopts § 1485.17(c)(13) as proposed research eligible for both branded and special purposes should not fall under (now § 1485.17(c)(12)). generic programs. CCC intends that Sales and Trade Related Expenses As previously discussed in response market research funded under the (STRE) and should be fully covered to a comment, CCC believes the program be available throughout the under MAP as separate expense reimbursability of the usage costs of relevant industry, not only to a single categories. various communications devices is company or cooperative. Response: Congress has given CCC already adequately addressed by the Comment: Four respondents provided discretion to operate and manage the various provisions in the MAP final similar comments in reference to MAP. In doing so, CCC must balance rule. Reimbursability of such § 1485.17(c)(20) (now § 1485.17(c)(19)), benefits to MAP Participants against communication costs depends on the which provides that for generic limited financial resources. Under the circumstances under which the promotions only, CCC will reimburse current MAP regulations, STRE incurred communication took place. CCC refers the cost of STRE (sales and trade outside of the United States is to its prior response on this issue. relations expenditures made on reimbursable for generic promotions

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only. In response to other comments to Accordingly, CCC has codified, in and shows held inside the United States the MAP proposed rule, CCC has relevant part, MAP Notice 09–006 in only if the exhibit or show is: (1) A food modified § 1485.17(c)(19) to allow § 1485.17(b)(7)) of the MAP final rule. or agricultural show with no less than reimbursement of STRE incurred in Section 1485.17(b)(7) now provides, in 30% of exhibitors selling food or conjunction with an approved generic part, that, for both generic and branded agricultural products, (2) an promotion taking place within the promotions, non-travel expenditures international show that targets buyers, United States upon prior written associated with retail, trade and distributors and the like from more than approval by CCC. CCC, however, consumer exhibits and shows held one foreign country and no less than disagrees with these commenters that inside the United States are 15% of its visitors are from countries miscellaneous courtesies should be reimbursable, subject to certain other than the host country, and (3) an considered separately from STRE. conditions set out in § 1485.17(b)(7). In exhibit or show that the MAP Comment: One respondent addition, the MAP final rule expands Participant has not participated in commented that it did not see language reimbursement to other related within the last three years using funds that includes authorization to use expenses. Specifically, § 1485.17(c)(24) from a source other than the MAP. program funds to cover costs associated now provides that, for generic MAP Notice 09–006 will be removed with participation in trade shows and promotions only, domestic travel from the FAS Web site. A new MAP fairs held within the United States. The expenditures for such exhibits and notice will be posted on FAS’ Web site respondent stated that many are shows conducted in the United States international in nature and have very are reimbursable, subject to certain listing the retail, trade and consumer strong participation from overseas, and conditions and upon prior written exhibits and shows held inside the it recommended that the rules approval by CCC. Section 1485.17(c)(8) United States for which MAP specifically include language to allow also now specifically allows reimbursement is currently allowed by program funds to be used for Participant reimbursement of international travel CCC. In addition, MAP Notice 97–004, staff to participate in such trade shows. expenses for an exhibit or show held which addresses when brand companies Response: CCC agrees with the inside the United States, subject to are allowed to use MAP funds for commenter and has clarified this issue certain conditions. For brand expenses associated with domestic trade in § 1485.17(b)(7), § 1485.17(c)(8) and promotion, neither domestic nor shows, is now inconsistent with the § 1485.17(c)(24) of this final rule. It has international travel expenses are MAP final rule and will be removed been CCC’s practice to reimburse non- reimbursable for retail, trade, or from FAS’ web site. travel expenditures associated with consumer exhibits or shows held inside Below is a chart summarizing the retail, trade and consumer exhibits and the United States. reimbursement rules for international shows held inside the United States These sections allow reimbursement exhibits and shows held outside and under certain circumstances. of eligible expenses related to exhibits inside the United States:

Exhibits and shows outside U.S. Exhibits and shows inside U.S.

Generic promotion .... Non-travel expenditures: Reimbursable (§ 1485.17(b)(7)) .... Non-travel expenditures: Reimbursable subject to condi- tions (§ 1485.17(b)(7)). International travel expenditures: Reimbursable International travel expenditures: Reimbursable subject to (§ 1485.17(c)(8)). conditions (§ 1485.17(c)(8)). Domestic travel expenditures: Reimbursable subject to prior written approval and subject to conditions (§ 1485.17(c)(24)). Brand promotion ...... Non-travel expenditures: Reimbursable (§ 1485.17(b)(7)) .... Non-travel expenditures: Reimbursable subject to condi- tions (§ 1485.17(b)(7)). International travel: Reimbursable up to 2 people International travel: Not reimbursable. (§ 1485.17(b)(8)). Domestic travel: Not reimbursable.

Comment: Twenty-five respondents trade representative attend the MAP funds to educate foreign target provided similar comments stating that conference would be eligible. audiences through courses and the phrasing was unclear in Twenty-five respondents commented programs conducted in the United § 1485.17(c)(24), which includes in reference to § 1485.17(c)(25) and States. ‘‘Expenditures associated with asked for clarification of ‘‘international Response: CCC agrees that the conducting international staff organizations.’’ Three respondents phrasing in § 1485.17(c)(25) was unclear conferences.’’ The respondents proposed that the language be amended and has replaced it with new requested that CCC clarify whether trade to include ‘‘and meetings of an §§ 1485.17(c)(23)–(26). shows, seminars, educational training, international focus within the United Regarding commenters’ request to international staff conferences, and States.’’ clarify whether international staff meetings of international organizations One stated that this section was conferences conducted in the United are all eligible for reimbursement in the confusing and implied that States and overseas are eligible for United States and overseas. Several of reimbursement for travel for trade reimbursement, CCC observes initially the respondents questioned if this shows, seminars, and educational that expenditures related to included international conferences training was authorized only for those international staff conferences are taking place in the United States and if events that are conducted outside the reimbursable for generic promotions so, whether that included travel. One United States. The respondent asked for only. CCC has added a new respondent stated that it was unclear clarification on this and stated that it § 1485.17(c)(23), which provides that whether the international travel costs believed that was not the intent of CCC, non-travel expenditures related to associated with having the industry’s as it would severely limit the use of conducting international staff

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conferences are reimbursable, regardless such international staff conferences are for reimbursement, CCC has added new of whether the conferences are held in not reimbursable. For brand promotions, § 1485.17(b)(6) and new or outside the United States. These no expenditures of any kind associated § 1485.17(c)(25). Section 1485.17(b)(6) conferences are gatherings of the with international staff conferences are provides that, for both generic and international staff of the MAP eligible for reimbursement. brand promotions, non-travel Participant. CCC further notes that In response to commenters’ request to expenditures associated with seminars international travel expenditures to clarify whether trade shows conducted and educational training, whether such conferences for MAP Participants, in the United States and overseas are conducted inside or outside the United whether held outside the United States eligible for reimbursement, CCC has States, are reimbursable. Further, for or in the United States, are already added new § 1485.17(c)(24). That generic promotions, international travel section allows reimbursement, for reimbursable in accordance with expenditures associated with seminars generic promotions only, subject to § 1485.17(c)(8). Thus, under and educational training conducted § 1485.17(b)(18), of domestic travel § 1485.17(c)(8), international travel costs expenditures related to international inside or outside the United States are associated with having the industry’s retail, trade and consumer exhibits and already reimbursable under trade representative attend the shows conducted in the United States § 1485.17(c)(8). And, for generic Participant’s staff conference would be upon prior written approval by CCC. promotions, new § 1485.17(c)(25) now eligible if the individual is an employee CCC refers to its prior response to a reimburses domestic travel for seminars or overseas contractor of the MAP similar comment above regarding and educational training conducted in Participant. Thus, in sum, for generic eligibility of domestic travel and non- the United States. For brand promotions only, both international travel expenditures associated with promotions, no travel expenditures travel expenditures and non-travel participation in exhibits and shows held associated with seminars or educational expenditures for international staff outside or inside the United States. training, whether conducted inside or conferences are reimbursable, whether In response to commenters’ request to outside the United States, are eligible the conference is held outside the clarify whether seminars and for reimbursement. The chart below United States or in the United States. educational training conducted in the summarizes the reimbursement rules for Domestic travel expenditures to attend United States and overseas are eligible seminars and educational training.

Seminars and educational training outside U.S. Seminars and educational training inside U.S.

Generic promotion .... Non-travel expenditures: Reimbursable (§ 1485.17(b)(6) ..... Non-travel expenditures: Reimbursable subject to condi- tions (§ 1485.17(b)(6)). International travel expenditures: Reimbursable International travel expenditures: Reimbursable (§ 1485.17(c)(8)). (§ 1485.17(c)(8)). Domestic travel expenditures: Reimbursable (§ 1485.17(c)(25)). Brand promotion ...... Non-travel expenditures: Reimbursable (§ 1485.17(b)(6)) .... Non-travel expenditures: Reimbursable (§ 1485.17(b)(6)). International travel: Not reimbursable ...... International travel: Not reimbursable. Domestic travel: Not reimbursable.

CCC acknowledges the respondents’ employee, a MAP Participant board Non-travel expenditures associated with request for clarification of the term member, or a state department of seminars and educational training ‘‘international organizations’’ and their agriculture employee paid by the MAP conducted inside or outside the United request to reimburse domestic travel to Participant when such individual States are already reimbursable as noted ‘‘meetings of an international focus accompanies foreign trade missions or above pursuant to § 1485.17(b)(6). within the United States.’’ Due to technical teams when such missions or International and domestic travel difficulties in defining the criteria for teams are traveling in the United States. expenditures for such activities are eligible international organizations and Such trade missions or technical team reimbursable, for generic promotion meetings with an international focus, visits must be identified in the MAP only, pursuant to § 1485.17(c)(8) and CCC has decided to eliminate the Participant’s UES and must have been § 1485.17(c)(25). provision allowing reimbursement of approved by CCC. MAP Notice 06–002 The intention of proposed domestic travel expenditures for a MAP will be removed from the FAS Web site. § 1485.17(c)(31) was to specifically Participant’s attendance at meetings of Comment: Ten respondents permit reimbursement of educational international technical organizations commented in reference to seminars, whether in the United States and declines to expand reimbursement § 1485.17(c)(31) and questioned if this or abroad, where such seminars are to include ‘‘meetings with an included educational seminars in the intended to address market constraints international focus.’’ Unless such United States and abroad. Three such as temporary or permanent trade attendance falls within another covered comments stated they supported the barriers. CCC, however, agrees with the category of reimbursement for domestic inclusion of activities that are intended comments that other activities in travel, domestic travel for these to improve market access and therefore addition to educational training can purposes will not be reimbursable under recommended the insertion of ‘‘or other achieve this objective. Given that, and the MAP final rule. appropriate activities’’ following the fact educational training is already Finally, as noted previously, CCC has ‘‘educational training’’ and before covered in other subsections of the MAP codified MAP Notice 06–002 in new ‘‘designed to improve market access.’’ final rule, CCC consequently has § 1485.17(c)(26). That section now Response: CCC notes that modified § 1485.17(c)(31) (now allows, for generic promotion only, the § 1485.17(c)(31) is now rendered § 1485.17(c)(32)) to permit reimbursement of domestic travel redundant by § 1485.17(b)(6), reimbursement for expenditures not expenditures of a MAP Participant § 1485.17(c)(8), and § 1485.17(c)(25). otherwise prohibited from

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reimbursement that are associated with promotion of a foreign brand if the or brand names that compete with an activity held in the United States or foreign brand uses the promoted U.S. foreign brands in their market. abroad designed to improve market agricultural commodity. A generic Response: CCC believes that access by specifically addressing promotion activity may also involve the § 1485.17(d) in the proposed rule has temporary, permanent, or impending use of specific company names, logos, been misunderstood in reference to the technical barriers to trade that prohibit or brand names. However, in that case, promotion of a foreign brand. Promoting or threaten U.S. exports of agricultural the MAP Participant must ensure that a foreign brand constitutes a generic commodities. all U.S. and/or foreign companies activity promoting the U.S. commodity Comment: Twenty respondents seeking to promote such U.S. because the foreign brand uses the commented in reference to proposed agricultural commodity in the market promoted commodity from multiple § 1485.17(d) suggesting the sentence ‘‘A have an equal opportunity to participate U.S. suppliers. In contrast, promoting a generic promotion activity may also in the market and that at least two single U.S. brand would constitute a involve the use of specific company companies participate.’’ branded activity. While § 1485.17(d) names, logos or brand names’’ be Response: CCC disagrees with the specifically states that a generic clarified to read ‘‘specific U.S. company respondent, and the final rule will promotion activity may also involve the names, logos, or brand names.’’ The continue to reflect that a generic use of multiple specific U.S. company respondents stated that the absence of promotional activity may include the names, logos, or brand names, such this clarification gives the impression promotion of a foreign brand only if the branding must meet the conditions of that two foreign brands have to foreign brand uses the promoted U.S. § 1485.17(d), which ensures that the participate in activities, which would be agricultural commodity from multiple activity remains ‘‘generic’’. The text of impossible in the case of store brands. U.S. suppliers. The text of proposed proposed § 1485.17(d) has been moved The respondents further commented on § 1485.17(d) has been moved into the into the definition of ‘‘generic the phrase, ‘‘At least two U.S. definition of ‘‘generic promotion’’ in promotion’’ in § 1485.11. Section companies participate.’’ Several of the § 1485.11. § 1485.17 has been re- 1485.17 has been re-ordered. In comments stated that it was not often ordered. addition, as discussed in the response to possible to garner two brands for Comment: Fifteen respondents stated a prior comment, CCC deleted the participation in a generic promotion in reference to § 1485.17(d) that most requirement that generic promotion foreign brands are developed for the where brands are specifically identified. activity may include the promotion of a local companies to add value and be One respondent stated that this foreign brand only if the foreign brand competitive in the market and are not requirement was so onerous that it is the primary market access to the generally designed to be the way for would significantly affect their ability to targeted market for the U.S. agricultural U.S. products to enter the market. The conduct promotions at retail. commodity. The respondents stated that some objective should be to encourage foreign brands may choose not to participate; so brands to incorporate U.S. agricultural Comment: In reference to § 1485.17(d) this new regulation would limit the commodities, but the phrase, ‘‘and is the fourteen respondents provided similar ability of a MAP Participant to primary market access to the targeted comments in regard to food service undertake a generic promotion activity. market for the U.S. agricultural promotions. Several stated that They recommended that if the MAP commodity’’ appears to limit it. The generally food service operators rely on Participant can demonstrate that all respondents questioned what exactly one U.S. supplier and the U.S. product available brands are invited to does the phrase itself mean, and is promoted as part of the food service participate then the final number of recommended that this section be item, identifying the U.S. origin but not promotion participants would not have rewritten or deleted altogether. the brand. The new regulation states, ‘‘a an impact on the eligibility of the Response: CCC believes that foreign generic promotion activity may include activity for reimbursement. brands are often very useful for the promotion of a foreign brand if the Response: CCC agrees with the increasing U.S. exports generically. foreign brand uses the promoted U.S. respondents in regard to adding the Multiple foreign brands may use U.S. agricultural commodity from multiple clarification of ‘‘U.S.’’ to the reference to products, however, and a single foreign U.S. suppliers’’. The respondents stated specific company names, logos, or brand brand does not need to provide the this is not always achievable and they names, and has modified the definition ‘‘primary market access to the targeted recommend recognizing the broad of generic promotion in § 1485.11 market.’’ Thus, CCC agrees with the generic parameters achieved within the accordingly. CCC has also added ‘‘U.S.’’ respondents and has modified the context of the entire activity (food as a qualifier for promoting separate proposed text of § 1485.17(d) to remove service/retail/bakery, etc.) within a items from multiple U.S. companies the phrase as requested. The text of market. under a generic promotion. However, proposed § 1485.17(d) has been moved Response: CCC disagrees. CCC does CCC disagrees with the respondents in into the definition of ‘‘generic not consider the promotion of a foreign regard to requiring two brands for promotion’’ in § 1485.11. § 1485.17 has brand that uses only a single supplier to participation and will keep this been re-ordered. be generic promotion. The text of requirement in the final rule to avoid Comment: Sixteen respondents proposed § 1485.17(d) has been moved any appearance of promoting a single commented in reference to § 1485.17(d) into the definition of ‘‘generic brand under a generic promotional that since Participants are currently promotion’’ in § 1485.11. Section activity. The text of proposed allowed to promote foreign brands that 1485.17 has been re-ordered. § 1485.17(d) has been moved into the are composed of U.S. commodities, this Comment: One respondent definition of ‘‘generic promotion’’ in rule would place the U.S. companies at commented in reference to § 1485.11. § 1485.17 has been re- a disadvantage because Participants § 1485.17(e)(19) (now § 1485.17(d)(19)), ordered. could promote their foreign competitors which provides that membership fees in Comment: One respondent and not U.S. companies. The clubs and social organizations are not recommended that this section be respondents suggested removing this reimbursable. The respondent asked for rewritten as follows: ‘‘A generic language to open it up to Participants clarification whether fees paid to a promotion activity may include the promoting U.S. company names, logos, professional industry-related

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organization would be eligible for reimbursement of any expenditure on permissible in this section, then the reimbursement. an activity that includes any derogatory MAP Participant must pay for the excess Response: CCC intends that fees paid reference or comparison to other U.S. in compensation itself. to a professional, industry-related agricultural commodities. Comment: Fourteen respondents organization would be eligible for Comment: Four respondents commented in reference to § 1485.17(g) reimbursement, and has added new commented on § 1485.17(e)(28), which stating that since this sentence appears § 1485.17(c)(33) to include such provides that CCC will not reimburse in the middle of the section, it is unclear language for generic promotions only. the cost of any expenditure on an as to what it applies. The respondents Membership fees for clubs and social activity that contradicts U.S. foreign suggested that this be moved to the last organizations remain ineligible. policy. Respondents stated that it was item under the section. Comment: Three respondents stated not clear how the exact standard of U.S. Response: CCC confirms that that § 1485.17(e)(26) (now foreign policy is to be determined and § 1485.17(g) (now § 1485.17(j)) refers to § 1485.17(d)(26)) conflicts with what constitutes a contradiction of that all of § 1485.17. CCC agrees with the § 1485.17(c)(23) (now § 1485.17(c)(22)) policy. One stated that the regulation comment and has modified § 1485.17(j). and recommended that this be amended was too vague. Another stated that it That subsection now states ‘‘CCC may by adding ‘‘except as noted at agreed with the spirit of the regulation determine, at CCC’s discretion, whether § 1485.17(c)(23).’’ but were unsure how it should any cost not expressly listed in Response: CCC agrees with the determine if it was contradicting U.S. § 1485.17 will be reimbursed.’’ respondents’ comment and has foreign policy. The respondents amended new § 1485.17(d)(26) to recommended further clarification. Sec. 1485.18 Reimbursement reference § 1485.17(c)(22). Response: CCC agrees with the Procedures Comment: Seventeen respondents respondents that the U.S. foreign policy Comment: One respondent commented in reference to that applies to MAP Participants is not commented in reference to § 1485.17(e)(27) and suggested the clearly articulated in the regulation. § 1485.18(a)(5) that the requirement that phrase ‘‘negative comparison’’ be Moreover, independent regulations and claims for reimbursement include the removed. One respondent suggested that Presidential Executive Orders setting applicable cost category greatly if CCC believed that the concept needs out foreign policy related to specially complicates the accounting process for to be addressed then the phrase should designated nationals and other Participants. The respondent stated that be replaced with ‘‘derogatory’’. Another economic trade sanctions already apply unless CCC has some practical need for questioned whether if a product from to MAP Participants independent of the cost category information, it one MAP Participant has a better MAP final rule. Accordingly, CCC has recommended eliminating that reporting functionality in an end product than deleted § 1485.17(e)(28) from the final requirement. that of another MAP Participant, can rule. Response: CCC disagrees. The such statement not be made. Another Comment: Two similar comments requirement that claims for respondent stated that it was unclear as were made in reference to § 1485.17(f). reimbursement include cost category is to the definition of ‘‘negative One respondent stated that it supports not a new requirement. Moreover, this comparison’’ and questioned if this the applicability of the GS–15 Step 10 information is necessary as CCC is often regulation only refers to comparing a salary cap as it relates to non-U.S. asked by Congress to report U.S. source of the competitive product citizens; however, it stated in the case expenditures by cost category. as compared to a local source or making of contractors (U.S. citizens or non-U.S. a generic statement that does not citizens), application of this pay scale Sec. 1485.19 Advances reference national origin. This should be left to the discretion of the CCC received 45 comments in regard respondent requested that this Participant. The respondent stated that to advances. regulation be clarified to permit valid adherence to the pay scale does not Comment: Fifteen respondents comparisons of a promoted product relieve Participants from having to provided similar comments in reference with that of a locally produced or competitively bid the position; since the to § 1485.19(b). Each respondent generically stated product. One stated Participant will have to competitively recommended that language be included that the term ‘‘negative’’ was too general bid the position, the Participant should about the ability to apply for an advance and also stated that it was not possible be allowed to pay and be reimbursed for in the current year if there is an to discuss advantages of one of its the bid amount, which is a outstanding advance from the previous products without suggesting something compensation amount that is reasonable year. The respondents stated that with negative about some of its competitors’ for the market. Another respondent the ability to apply for an advance for other products. Two respondents stated stated that this method of rate-setting is up to 3 months after the end of a that the words ‘‘negative comparison’’ unfair to companies in high cost regions program year this clarification is may be too restrictive a term if it of the world and that it benefits those needed. They also stated that this was prevents the forthright statement of facts located in less expensive areas, not spelled out in the new regulations and comparison of functionality and especially third-world countries. and might be confusing to newer relative value of various commodities Response: § 1485.17(f) (now Participants. and products in a given use. Several § 1485.17(e)) refers to employees or Response: CCC does not believe it is recommended revising this section by contractors who are hired to act as necessary to include language about the removing the words ‘‘negative employees, rather than contractors hired ability to apply for an advance while comparison.’’ to undertake a specific activity. Thus, there is an outstanding advance from Response: CCC agrees with the this is not a bidding situation. CCC has the previous year. In the proposed rule, comments requesting the removal of the modified the final rule to clarify that the CCC removed the current rule’s phrase ‘‘negative comparison’’ and with type of contractor subject to § 1485.17(e) requirement that no advance will be the comment asking to substitute are ‘‘contractors who are hired to act as made if an advance from a previous ‘‘derogatory’’ in its place. CCC has employees.’’ If a MAP Participant program year is still open. Thus, CCC modified § 1485.17(e)(27) (now chooses to employ an employee or believes § 1485.19(b) of the proposed § 1485.17(d)(27)) accordingly to prohibit contractor at a salary rate higher than is rule, which does not contain any

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prohibitions on a MAP Participant’s expected, CCC has decided to delete the aware of several cases of MAP request for an advance (except to require sentence from § 1485.19(b) quoted above Participants being involved in lawsuits that such Participant meet the criteria and to add to the end of § 1485.19(b) the involving the Participant’s overseas for advance payments set forth in the following: ‘‘When approving a request employees. The written employment applicable parts of this title, e.g., parts for an advance, CCC may require the contract protects Participants’ and 3015, 3016, 3019), as written, allows MAP Participant to carry adequate CCC’s interests. Furthermore, in order to Participants to apply for an advance in fidelity bond coverage when the absence properly perform its compliance and the current year if there is an of such coverage is considered to create monitoring functions, CCC requires outstanding advance from the previous an unacceptable risk to the interests of documentation to support all MAP year. In addition, CCC notes that the the MAP. Whether an ‘‘unacceptable expenditures. The written employment proposed rule already makes clear that risk’’ exists in a particular situation will contract provides such documentation a Participant may apply for an advance depend on a number of factors, such as, for overseas employees. for up to 3 months after the end of its for example, the Participant’s history of Comment: Fourteen respondents program year. The proposed rule performance in MAP; the Participant’s asked if the intent was to require provides, in part, that ‘‘CCC will not perceived financial stability and employment contracts with MAP approve any request for an advance resources; and any other factors Participant employees in foreign submitted later than 3 months after the presented in the particular situation that locations and suggested CCC restate this end of a MAP Participant’s program may reflect on the Participant’s to be clear. Two questioned if this was year.’’ responsibility or the riskiness of its intended for foreign staff only and Comment: Four respondents activities.’’ Thus, CCC will make a stated that contracts would limit both commented regarding security in determination, based on the applicable the flexibility of the employer as well as reference to § 1485.19(b). Two of the facts and circumstances presented by a employee and provide a much more respondents requested clarification as to particular MAP Participant’s advance difficult environment in cases of what circumstances would require request, whether the MAP Participant unsatisfactory performance by an submission of security and what type of must obtain fidelity bond coverage and employee. They also stated that it could security would be expected. One in what amount. lead to substantially higher costs for commented that the regulation was very Comment: Twenty-five respondents Participants. One commented that all of vague and stated that they felt that a made similar comments in reference to the 50 states are ‘‘at-will employment Participant capable of ‘‘fronting § 1485.19(c). Fifteen stated that the states’’ and that this doctrine covers security’’ may not need an advance. requirement for a quarterly financial employment practices for MAP Response: Section 1485.19(b) statement to CCC for all funds advanced Participants with domestic U.S. staff. provides, in part, that ‘‘[i]f CCC and all interest earned is onerous. These Two respondents commented that approves the request, prior to making an respondents further stated that an written contracts should only be advance, CCC may require the MAP annual statement should suffice. Six of required by CCC in reference to Participant to submit security in a form the comments received recommended a employees paid for with MAP funds. and amount acceptable to CCC to waiver of interest for smaller advances. Response: CCC intends that this protect CCC’s financial interests.’’ Four of the respondents stated that section refers to the employment of USDA’s uniform federal assistance Participants are expected to pay all overseas employees who are paid in regulations, in 7 CFR § 3015.17(a), expenses in advance of reimbursement whole or in part with MAP funds and already provide that ‘‘[i]f the recipient is and that the financing of these costs are has modified this section accordingly to not a unit of government, the awarding significant and dramatically exceed any require ‘‘written contracts with all agency may require the recipient to potential revenue generated by interest overseas employees who are paid in carry adequate fidelity bond coverage income therefore they specifically whole or in part with MAP funds.’’ CCC where the absence of coverage for the oppose this rule. disagrees with the comment that grant-supported activity is considered as Response: CCC agrees that requiring a contracts would limit the employer’s creat[ing] an unacceptable risk.’’ quarterly statement on advances is and employee’s flexibility and make it Similarly, USDA’s uniform unnecessary, given the fact that such more difficult to let go of an administrative requirements for grants information should be readily available unsatisfactory employee. A written and agreements with nonprofit in the UES system. Accordingly, CCC employment contract would not organizations, in 7 CFR § 3019.21(d), has deleted the last sentence from eliminate the ability of employers to fire provide that ‘‘[t]he Federal awarding § 1485.19(c) requiring the submission of employees at will if the contract agency may require adequate fidelity a financial statement. includes an at-will clause. Similarly, an bond coverage where the recipient lacks employment contract can be written to sufficient coverage to protect the Sec. 1485.20 Employment Practices reflect the flexibility desired by the Federal Government’s interest.’’ The CCC received 20 comments in regard parties to the contract. proposed MAP rule explicitly observed to this section. that 7 CFR parts 3105 and 3109 apply Comment: Twenty respondents Sec. 1485.21 Financial Management to the MAP and MAP Participants (to commented in reference to § 1485.20(a), CCC received 18 comments in regard the extent that they do not directly which requires that MAP Participants to this section. conflict with the MAP final rule). Thus, enter into written contracts with all Comment: Sixteen respondents to the extent that CCC needs to take employees and that all terms, provided comments in regard to precautions to protect the federal conditions, and related formalities of § 1485.21(c). Fourteen of the government’s interests, USDA’s uniform such contracts conform to governing respondents stated that the record regulations already provide a way for local law. The respondents stated that retention policy is modified to delete CCC to do so. this rule was onerous and the 5-year requirement without To accommodate the respondents’ counterproductive, and that they specifying the required retention period. request to clarify what circumstances opposed this rule. They stated that they assumed it was would require submission of security Response: CCC disagrees that this rule included in 7 CFR part 1, subpart A— and what type of security would be is counterproductive or onerous. CCC is Official Records, but questioned the

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point of referencing this part when the requires MAP Participants to maintain this provision has been in place for at required retention time could be stated documentation supporting least 15 years, and reporting has become here. contributions. Such documentation easier with the improvement in One respondent commented that there must include the dates, purpose, and electronic technologies. were several references in this section location of the activity for which the Sec. 1485.23 Evaluation and others to ‘‘applicable parts of this cash or in-kind items were claimed as title’’ and stated that was very vague. a contribution; who conducted the In reference to § 1485.23(b), CCC They asked CCC to clarify the reference activity; the participating groups or received six comments supporting the more precisely. Another respondent individuals; and, the method of change in requirements for submission stated they believed § 1485.21(c) computing the claimed contributions. of the evaluation report from 3 months pertained to employment records for The respondent stated that although the to 6 months. They stated this change non-U.S.-based employees and asked required documentation referenced in will result in an improved ability to that the regulation be restated to clarify this section was relatively easy for a more accurately report the results of this. MAP Participant to provide, it was their activities. Response: CCC agrees with the unreasonable to expect this level of respondents’ recommendation of an detail in reports from the U.S. industry. Sec. 1485.24 Compliance Reviews and explicit statement of the required Response: CCC disagrees. In order to Notices retention time. 7 U.S.C. § 5662 requires, properly perform its compliance and CCC received 107 substantive in part, that MAP Participants maintain monitoring functions, CCC requires comments in reference to § 1485.24. all records concerning a program documentation to support all MAP CCC has also deleted the reference to ‘‘a transaction for a period not to exceed 5 contributions. If U.S. industry notice of delinquency’’ from years after completion of the program expenditures cannot be supported by § 1485.24(e)(2). Pursuant to 7 CFR part transaction, and to permit the Secretary adequate documentation, such 1403, when a debt is due CCC, only an to have full and complete access, for expenditures will not count as eligible initial written demand for payment is such 5-year period, to such records. CCC contributions. This language has not provided to the debtor. has modified § 1485.21(c) accordingly to been changed from the current Comment: Fifteen respondents require retention of all records regulation. recommended that CCC develop and concerning a MAP program transaction Sec. 1485.22 Reports publish a realistic timeline for MAP for a period of 5 years after completion Participants to come into compliance CCC received four comments in of the program transaction, and to with the new regulations after the regard to § 1485.22. One comment permit CCC to have full and complete effective date. The respondents stated supported the proposed rule. CCC’s access, for such 5-year period, to such that compliance with the contracting records. Additionally, in response to the responses to these comments are below. guidelines and anti-fraud requirements comment questioning whether In addition, CCC has modified requires a reasonable length of time. employment records had to be retained § 1485.22(e) to clarify that CCC can Response: CCC has delayed the only for non-U.S.-based employees, CCC require a MAP Participant to submit an effective date of the final rule until the has modified § 1485.21(c) to explicitly A–133 audit only when CCC is MAP Participant’s 2013 program year state that records shall include all designated the cognizant agency for (i.e., either 01/01/2013 or 07/01/2013). documents related to employment of audit. MAP Participants may, however, any employees whose salaries are Comment: One respondent voluntarily choose to comply with reimbursed in whole or in part with commented on § 1485.22(a), stating that § 1485.15(a)–(b), § 1485.29(d) and MAP funds, whether such employees the format currently used to report § 1485.31(a)(1) of the final rule in their are based in the United States or contributions requires identification of 2012 program year. overseas. amounts by cost category and source, In response to the comments that refer not by activity code. The respondent In subsequent program years after to ‘‘applicable parts of this title’’ in the stated that to track expenditures by 2013, a new MAP Participant, including MAP final rule are vague, CCC refers to activities would be burdensome, and it a former Participant that did not its prior response to a similar comment. recommended that CCC retain the participate in the previous program Comment: One respondent referenced current format for reporting year, will be required to submit its § 1485.21(d)(6) and asked for contributions. initial brand program operational clarification of the term ‘‘receipted paid Response: CCC agrees with the procedures (as applicable), contracting bills.’’ They stated in the past respondent and has modified the guidelines and anti-fraud program as set ‘‘stamped’’ paid bills were not section accordingly to delete the forth in its approval letter. Returning considered an acceptable form of proof requirement to identify contributions by MAP Participants will be required to of payment and that instead there had activity. submit their brand program operational to be evidence of a financial transaction Comment: Two respondents procedures (as applicable) and anti- which involved a third party such as a commented in reference to § 1485.22(b), fraud program, as set forth in their bank. stating that in many cases, approval letters. Response: Receipted paid bills means documentation of travel and travel Comment: Twenty-two respondents bills for which receipt of payment has expenses were not received by the stated their concern in reference to been confirmed in writing by the payee. Participant until well beyond the § 1485.24(d). The respondents stated This language has not been changed proposed 45 day period after travel. The that they were concerned that the from the current regulation. CCC has not respondents proposed that the reference proposed rule states ‘‘the fact that a changed its past practice. CCC believes to ‘‘completion of travel’’ be replaced compliance review has been conducted this term is well understood and does with ‘‘submission of claims for travel by USDA staff does not signify that a not believe it is necessary to codify any expenses.’’ MAP Participant is in compliance with clarification. Response: CCC disagrees with the its program agreement, approval letter Comment: One respondent respondent. Travel expense information and/or applicable laws and commented on § 1485.21(d)(7), which is not required in trip reports. Moreover, regulations.’’

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Response: This language is included give assurance to CCC, not MAP responses, CCC disagrees that MAP to signify that a compliance review may Participants. These reviews are not Participants should not be liable for not identify all occasions in which a comprehensive evaluations for previously undiscovered instances of Participant is out of compliance. The Participants regarding their own noncompliance. fact that a compliance review had internal controls and systems. Comment: Nineteen respondents occurred and did not uncover the non- Moreover, even the most stringent commented in reference to compliant action is not a defense to any review would not necessarily bring § 1485.24(e)(1) stating that the reduction subsequent determination by CCC that about CCC’s complete confidence that a in the amount of time for a Participant the Participant is not in compliance Participant’s program did not include to respond to an audit finding from 60 with its program agreement, approval any non-compliant actions. As an to 30 days was an unreasonably short letter and/or applicable laws and example, fraudulent behavior by a MAP period of time, an unwarranted regulations. Similarly, a future Participant’s contractor may initially reduction and an onerous requirement. compliance review may include appear to be completely compliant upon Several stated that staff members are not findings that were not identified in a review of well-crafted fraudulent always in-country to begin working on previous review, although similar non- documentation. A subsequent a response immediately and that 30 compliant actions may have occurred whistleblower complaint, however, may days does not provide sufficient time for during the time period covered by the reveal the fraudulent activity. It is the Participant to research and develop previous review. simply not possible for CCC to confirm an adequate response or appeal. Comment: Fifteen respondents that an entire program is in compliance Response: CCC concurs with the questioned how a Participant can be for any MAP Participant, much less for commenters that the reduction in time assured that it is in compliance with the all MAP Participants. to respond may create an onerous MAP program if a compliance review In short, whether or not CCC’s requirement as Participants are often in cannot be used as a basis for compliance staff conducts a compliance travel status. Therefore, CCC has establishing program compliance. review of a MAP Participant’s program changed § 1485.24(e)(1)’s period of time Another respondent commented that and regardless of the outcome of that within which a MAP Participant may § 1485.24(d) seems to imply that a review, the Participant retains the submit a response to a compliance compliance review means only that the ultimate responsibility, as a result of report or written notice back to 60 days. auditor has not found anything—yet. having accepted federal funds, for In addition, CCC has made a One respondent stated that when a running its program in compliance with corresponding change to § 1485.24(b) Participant has acted in good faith, the all applicable laws and regulations. and (c), whereby if a MAP Participant determination long after the fact that a Comment: Fourteen respondents notifies CCC within 30 days of the date given practice was in error should not proposed that additional language be of the written compliance report or cause CCC to re-open previously added to this section, stating, ‘‘Should written notice that the Participant audited expenditures for reimbursement USDA staff determine that a MAP intends to file an appeal pursuant to to CCC. Several of the respondents Participant is out of compliance, the § 1485.24(e), the amount owed to CCC stated that a successful review should MAP Participant will be required as in by the MAP Participant is not due until be considered confirmation that a (b) and (c) of this subpart to return to the appeal procedures are finished and Participant is in compliance with its CCC the amount of funding deemed to CCC has made a final determination as program agreement, approval letter and/ have been inappropriately spent for the to the amount owed. or applicable laws and regulations. They reviewed program year. Notice will be Sec. 1485.25 Failure To Make questioned what value a compliance made of the particular error and shared Required Contribution review has if it doesn’t attest to a with all MAP Participants. A pattern of Participant’s compliance. this error may be noted but the MAP CCC received 17 comments in Two respondents commented that the Participant will only be required to reference to § 1485.25. problems with this language are further reimburse CCC for the compliance Comment: Sixteen respondents stated compounded by the current rarity of finding resulting from the current that they believed that the time to remit reviews and the extended length of time review and at the time the finding was payment for failure to make required it takes to receive the official concluding made and going forward and not liable contributions should be 6 months after letter. Fourteen comments stated that for previously un-reviewed and the program year ends, not 90 days. Two the compliance staff should develop an undiscovered findings.’’ respondents proposed the contributions approach that would be sufficient to Response: CCC disagrees with this should be within 6 months in order to cover all areas of the program and give comment. CCC does not agree that all be consistent with the proposed rule at all Participants (MAP Participants and compliance findings are appropriate to § 1485.23(b), which states that USDA staff) a sense of confidence that share with other MAP Participants. evaluation results be submitted within 6 a thorough review has been achieved. While compliance findings often are the months following the end of the Response: CCC disagrees. When results of errors or misunderstandings, Participant’s program year. They stated requesting and accepting MAP funding, occasionally compliance findings the evaluation process is an essential MAP Participants become responsible involve intentional actions taken to component in determining a MAP for the effective control over all funds, violate the regulations. Such actions are Participant’s contribution level and property, and other assets they receive often covered up by the perpetrator, and therefore proposed that § 1485.25 be from the federal government. MAP are sometimes not discovered through amended to read, ‘‘a MAP Participant Participants must act accordingly and normal compliance reviews. CCC will shall remit such payment within 6 institute their own internal controls for continue its current practice of months after the end of the program safeguarding these funds. providing notice to MAP Participants of year.’’ CCC has a similar duty to ensure patterns of errors or misunderstandings Response: CCC agrees that the time to public funds are properly expended. that it has discovered through remit payment should be 6 months, Compliance reviews are one way in compliance reviews and that it deems because the MAP Participant has 6 which CCC discharges, in part, this appropriate to share with all MAP months to develop its contribution duty. The purpose of such reviews is to Participants. Also, as noted in previous report and may not realize it has fallen

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short in contributions until the report is membership in the MAP Participant. clarify that the provision applies only to complete. Section 1485.25 has been Section 1485.28(c) prohibits a MAP generic activities. modified accordingly. Participant from limiting participation Sec. 1485.29 Contracting Procedures in its MAP activities to members of its Sec. 1485.28 Ethical Conduct organization. The MAP final rule does CCC received 69 comments in CCC received 21 comments in not require equal access to the MAP reference to § 1485.29. Responses are set reference to § 1485.28. Participant’s non-MAP-funded programs forth below. Comment: One respondent and information. To make clearer that Comment: Three respondents commented on § 1485.28(b), which the requirement of open participation is provided similar comments in reference states that ‘‘A MAP Participant may, limited to MAP activities, CCC is to § 1485.29(b). One comment asked if however, collect check-off funds and modifying § 1485.28(c) to require that this section applies to items paid with membership fees that are required for Participants agree to ensure that their MAP funds and income generated from membership in the MAP Participant.’’ MAP-funded programs and activities are programs or only the former. Two The commenter also refers to open to all otherwise qualified questioned if the ‘‘small purchase § 1485.28(c), which states, in part, that individuals and entities on an equal threshold referenced in 7 CFR part 3019 ‘‘A MAP Participant shall not limit basis and without regard to any non- is set at $100,000, to whom do the participation in its MAP activities to merit factors. contracting plan requirements apply for members of its organization.’’ The It is CCC’s intention that the benefits contracts above $25,000?’’ One respondent stated the two sections of the MAP should be made broadly respondent questioned what contracting appear to be contradictory and further available throughout the relevant compliance procedures were affected by questioned how a MAP Participant agricultural sector. Not all MAP this dollar threshold. recruits members, if all companies must Participants are similarly structured, Response: CCC intends that any use of have equal access to programs and and some organizations are far more income generated by MAP funded information regardless of their inclusive than others. Because CCC membership in the Participant activities should be governed by the cannot, and would not desire to, MAP regulation. CCC has modified organization. This respondent stated instruct industry groups how to that additionally, as the companies that § 1485.32 accordingly to state that the organize themselves, this requirement is Participant’s use of such revenue or are members are contributing financial placed on those organizations that resources to satisfy the MAP’s refunds generated from MAP-funded choose to participate in the MAP. programs shall be governed by 7 CFR contribution requirements, it is only fair Participating organizations are free to that these companies derive some Part 1485. Thus, § 1485.29 would apply charge reasonable and documentable to items paid, in whole or in part, with benefit over companies that are non- administrative fees to non-members that income generated from MAP programs. members. participate in MAP-funded activities. Nineteen respondents commented in CCC notes that § 1485.28(c) is not Regarding the questions related to the reference to § 1485.28(c) stating that intended to require MAP agricultural $100,000 small purchase threshold and they would like to know what method cooperatives to allow non-members to the $25,000 contract requirement, CCC a MAP Participant is to use to participate in their marketing program notes these are two different thresholds incentivize membership (thus achieving using the cooperative’s brands. In that relate to two different provisions in the broadest base) if no preference is response to this comment and the the MAP final rule. In addition, CCC permitted as a benefit of membership. following comment, CCC has modified notes that it has increased the $25,000 They stated that, while not excluding § 1485.28(c) accordingly to explicitly threshold to $35,000 in the MAP final anyone from participating, it is possible provide that this provision does not rule as discussed below in response to to give some limited preference, such as apply to U.S. agricultural cooperatives a different comment. first notice of events, etc. Three of the when implementing their own brand Proposed § 1485.29(d) of the MAP respondents stated that § 1485.28(c) program. final rule created a new requirement for would require non-members to Comment: One respondent asked that MAP Participants to submit a participate in their marketing program FAS clarify that § 1485.28(c) and contracting plan that lists each contract using their brand. These commentators § 1485.28(d) would not apply to with an annual value of $25,000 or state that a farmer-owned agricultural nonprofit U.S. agricultural cooperatives more. In the MAP final rule, CCC cooperative cannot permit non-members with their own brand program. If FAS changed § 1485.29(d) to require that to participate in the cooperative’s determines otherwise with respect to ‘‘[e]ach MAP Participant shall submit to marketing program using the the document disclosure provision CCC, for CCC approval, written cooperative’s brand. The respondents § 1485.28(c), the respondent asked that contracting guidelines for contracts that believed this proposed rule was in the provision be made clear that it are funded, in whole or in part, with direct contradiction with these statutory allows for the redaction of business- MAP funds. CCC’s approval of such requirements. confidential information from any contracting guidelines will remain in One respondent suggested the documents provided pursuant to the place until CCC retracts its approval in regulation should state that all provision. writing or new guidelines are approved commercial entities must have equal Response: As noted above, CCC has that supersede them. Once approved by opportunity to access program modified § 1485.28(c) in response to a CCC, these contracting guidelines shall information funded by MAP, but that prior comment so that the provision govern all of a Participant’s MAP- such opportunity is provided only does not apply to agricultural funded contracting involving contracts through membership in a Participant cooperatives promoting their own brand with an annual value of $35,000 or organization. program. Furthermore, § 1485.28(d) more.’’ Thus, all MAP Participants must Response: Section 1485.28(b) and does not deal with brand promotion, but establish written contracting guidelines § 1485.28(c) are not contradictory. speaks only to how MAP Participants for contracts that are funded in whole or Under § 1485.28(b), a MAP Participant select industry representatives to in part by MAP funds and that have an may collect check-off funds and participate in generic MAP activities. annual value of $35,000 or more. CCC membership fees that are required for CCC has also modified § 1485.28(d) to also modified § 1485.29(c) and (d) to

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make clear that these provisions apply Comment: CCC received thirty-one Comment: Fifteen respondents only to MAP-funded contracts. similar comments in reference to commented in reference to In addition to this requirement for § 1485.29(d). All respondents opposed § 1485.29(d)(1) stating that much of this written contracting guidelines, the regulation as written. Fifteen section was covered by inference in § 1485.29(b) also provides that ‘‘[a] MAP respondents stated that they believed § 1485.28; so it should not need to be Participant shall comply with the these contracting requirements should spelled out here. procurement standards set forth below apply only to those contracts that are Comment: Three respondents stated and in the applicable parts of this title fully funded and reimbursable by MAP they supported the regulation for when procuring goods and services and and not those that will be paid for with requiring an annual documented when engaging in construction to industry funds (contributions). Several evaluation for in-country representation implement program agreements (e.g., respondents stated that the proposed in lieu of the current arbitrary process 7 CFR Parts 3015, 3016, and 3019). For rule was too onerous and that, at most, of rebidding every 3 years. purposes of this subpart, the ‘‘small MAP Participants should be required to Response: The proposed rule purchase threshold’’ referenced in 7 provide a description of contracting established a requirement for a CFR part 3019 is the ‘‘simplified guidelines, not procedures that could be contracting plan in § 1485.29(d) because acquisition threshold’’ established by 41 applied to different contracting CCC has received many questions about U.S.C. § 134.’’ Thus, the small purchase situations. appropriate contracting procedures over threshold of $100,000 referenced in Comment: Eighteen respondents recent years. The proposal was not § 1485.29(b) relates to those provided comments that ‘‘contracting meant to be an onerous requirement. procurement standards set out in part guidelines’’ should be substituted for Rather, it was meant to encourage MAP 3019 of this title, which sets out the ‘‘contracting plan’’ and that once a plan Participants to formalize their uniform administrative requirements for (guideline) is approved in any given contracting methods and intentions for nonprofit organizations. year, it should not need to be a given year and to give MAP To illustrate, both 7 CFR part 3019 reapproved, unless it changes in some Participants the opportunity to obtain in and 7 CFR part 3016 contain fundamental way. advance CCC review and pre-approval procurement requirements, some of Comment: Seventeen respondents of the Participants’ contracting methods. which are tied to the ‘‘simplified stated their strong opposition to the CCC understands that the bulk of the acquisition threshold’’ (previously ‘‘the proposed rule and stated that the rule opposition to this proposal stems from small purchase threshold’’) previously presented a number of challenges, the requirement to list all contracts. CCC set out at 41 U.S.C. § 403(11), now including that the decision to use a agrees that this is unnecessary and codified at 41 U.S.C. § 134. See, e.g., contractor may not be made until the actually detracts from the intended 7 CFR § 3019.44(e), 7 CFR § 3016.36(d). award letter is received and individual purpose. CCC has accordingly modified This threshold was, at one time, projects are approved. They stated that § 1485.29(d) to require that MAP $25,000. It was subsequently increased the timing of the award cycle would Participants establish contracting to $100,000 by statute. Because the make this proposed requirement guidelines to follow as various current 7 CFR part 3019 has not been impossible and create an onerous pre- contracting situations arise. Individual updated to reflect the increase in that approval process that not only contracts need not be identified. threshold from $25,000 to $100,000 as micromanages program implementation Moreover, CCC has removed the set forth in 41 U.S.C. § 403(11), now but would be impossible under the requirement that a MAP Participant codified at 41 U.S.C. § 134, CCC timelines by which the program must submit its contracting plan to CCC clarified the current $100,000 threshold currently operates. prior to entering into any contracts in proposed § 1485.29(b). In response to Comment: One respondent proposed a during the program year. Rather, the these comments, however, CCC believes change in the wording in the following MAP final rule now provides that after that, to account for possible changes to passage to read, ‘‘Prior to entering into CCC approves the initial contracting the simplified acquisition threshold that any contracts during a program year, a guidelines, such approval will remain in may occur in the future, it would be best MAP Participant must submit to CCC for place until CCC retracts its approval in if the final rule referred to the statute CCC approval a written contracting writing or new guidelines are approved fixing the threshold rather than specify (procedure manual).’’ The commenter that supersede them. As discussed the currently applicable threshold. then asked when the MAP Participant above in response to a separate Accordingly, CCC has modified could anticipate receiving approval of comment, MAP Participants shall § 1485.29(b) to refer to the threshold set their contracting procedure manual. submit their contracting guidelines to at 41 U.S.C. § 134 rather than a $100,000 Another proposed that at most FAS CCC as set forth in their approval letters. threshold. require that the Participant develop a The MAP final rule continues to allow Comment: Thirty-one respondents description of contracting procedures the MAP Participant to modify and stated that if the requirement to submit that could be applied to different resubmit these guidelines for reapproval contracting ‘‘plans’’ is retained, they contracting situations and would remain at any time. proposed an increase to the annual applicable over multiple years. CCC agrees that these contracting contract value greater than the current Comment: Fourteen respondents requirements should apply only to those $25,000. A suggestion was made for questioned on what basis anyone at CCC contracts that are funded, in whole or in $100,000. Four comments stated that the would be qualified to judge a part, by MAP funds and not those that total cost is often not known until the Participant’s contracting plan. They are paid for with industry funds bidding is completed. They stated that stated conversely, if the judgment was (contributions). CCC has modified this regulation was too intrusive and only related to whether there was a plan § 1485.29(d) accordingly. CCC observes would lead to multiple re-submittals of or whether it was adequately updated, that this would encompass all contracts the contracting plan to account for new then what was the point? They stated funded in whole or in part with MAP and revised contracts. They stated that that this set of requirements created the funds, which would include contracts this policy should not require a listing need for a parallel notification process with U.S.-based organizations that are up-front of all contracts expected during as Participants will be forced to amend retained to implement or assist with that plan year. the plan with each new need. approved international market

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development efforts, if such contracts some FAS Posts could not review every regulation as written was too intrusive were funded by MAP. activity in their markets. and onerous. Several of the respondents CCC does not agree with the Comment: Two respondents provided recommended either removing this suggestions to increase the threshold of similar comments in reference to regulation altogether and/or treating it $25,000 to $100,000 for contracts that § 1485.29(d)(3) and stated that they like Civil Rights training by developing are to be submitted in contracting understood the rationale for this course work based on what was ‘‘plans.’’ First, CCC notes that the proposal was ensuring that contracting developed for the anti-fraud course requirement no longer requests procedures were open, fair and offered by Western U.S. Agricultural contracts to be listed. Second, CCC competitive. They stated that there are Trade Association. The respondents observes that CCC chose the $25,000 exceptions, especially in the area of stated that FAS could then require all level in the proposed rule because that highly technical services where there is MAP Participant staff and board with is the same threshold that CCC has reasonable cause to allow the same fiduciary responsibilities to take the maintained since 1996, as reflected in individual to draft specifications as to course and submit certification MAP Notice 05–005, for the contract bid on them. The respondents proposed statements to that effect. competition requirement. Since 1996, that such circumstances be treated as a Response: CCC disagrees. CCC’s CCC has required MAP Participants to rare exception and as one of the position is that anti-fraud efforts should conduct an appropriate form of ‘‘various situations’’ for which ‘‘separate be more structured and intensive than competition at least every three years on procedures’’ are developed as cited in in the past. Recent incidents indicate all contracts valued at $25,000. CCC § 1485.29(d)(2), to ensure that such fraud has the potential to cause believes that the $25,000 level is an exceptional cases result in an open, fair, considerable losses to the government. appropriate level not only for when and competitive contract. In addition to the requirement that they competition should be conducted but Response: In response to the develop a fraud prevention program, also for determining what contracts commenters’ requests, CCC has MAP Participants are highly encouraged should be subject to written contracting modified § 1485.29(d)(3) to provide that to attend anti-fraud training courses. guidelines. However, in recognition that MAP Participants’ written contracting Comment: Seventeen respondents the $25,000 level should be adjusted for guidelines may detail special situations stated that if necessary, this plan should inflation, using the Department of where the prohibitions in this be developed once, submitted and Labor’s Bureau of Labor Statistics subsection do not apply, such as in approved and only be resubmitted if inflation calculator, CCC has increased situations involving highly specialized there has been some fundamental the minimum level to $35,000, with the technical services or situations where change. As with the contracting subpart, possibility of future increases through the services are not commonly offered they questioned what the timing was for written guidance announced to MAP in a specific market. As discussed submission of the MAP Participant’s Participants via a MAP notice issued on above, CCC must approve or disapprove fraud prevention program and when the FAS’ Web site. Section 1485.29(d) has of MAP Participants’ contracting MAP Participant should expect the been modified accordingly. CCC notes guidelines. program’s approval. Respondents question whether that MAP Notice 99–003 is now obsolete Three respondents asked for § 1485.29(d)(2) authorizes MAP and will be removed from FAS’ Web clarification on when the information Participants to develop separate site. needs to be submitted and if the review procedures that would allow the same CCC disagrees that the substance of was to be done by an independent third individual to draft specifications to bid § 1485.29(d)(1) can already be inferred party or if it could be done in house. on the solicitation. Section from § 1485.28 and need not be spelled Two respondents provided comments 1485.29(d)(2) does not directly address out in § 1485.29(d)(1). proposing that the annual submission this issue. Consequently, as discussed In response to the comment asking take place outside of the annual UES above, CCC has modified § 1485.29(d)(3) when the MAP Participant should application process or that it be instead. expect approval of its contracting Comment: Six respondents stated that completed as part of the regular procedures, CCC will try to complete its this section does not discuss compliance review process. review of contracting guidelines within requirements for contracts of less than Response: CCC disagrees that plans 21 calendar days of receipt. $25,000 (now $35,000). should only be re-submitted if there are Comment: A respondent suggested Response: While the contracting fundamental changes to the plan. While that if an activity is approved in a guidelines required by § 1485.29(d) an initial plan would not need to be particular city that MAP Participants be apply only to contracts with an annual rewritten every year, CCC expects MAP required to at least offer qualified value of $35,000 or more, contracts with Participants to review their anti-fraud contractors in that city or country an an annual value of less than that plans annually and to submit these opportunity to bid on the project. The threshold are still subject to the plans each year, regardless of whether commenter further stated that contractor remaining provisions of the MAP they have fundamentally changed. CCC lists should be obtained from the local regulations, including § 1485.29(a)–(c), has modified § 1485.31(a)(1) to make post rather than requiring potential as well as other procurement provisions clear that MAP Participants should contractors to register on a Web site. In of the applicable parts of this Title. For review their fraud prevention programs addition, the commentator stated that example, § 1485.29(c) indicates that all annually. While a plan may not change the post should review the activity contracting should be fair, open, and dramatically from one year to the next, before it begins. competitive. CCC expects that annual reviews would Response: While CCC requires open, yield the need for minor changes from fair, and competitive contracting Sec. 1485.31 Anti-Fraud Requirements time to time and expects to review the practices, CCC cannot and does not CCC received 85 comments in current applicable plan for each deem it appropriate to instruct MAP reference to this section. program year. It is not necessary that the Participants in appropriate methods for Comment: Twenty-one respondents plan be developed by an independent identifying potential contractors in provided similar comments in reference third party if the MAP Participant has every market in the world. In addition, to § 1485.31(a)(1), stating that the internal expertise.

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As stated above in response to an must maintain appropriate internal instances of fraud have been earlier comment, it is expected that a controls. In contrast, the MAP final rule substantially determined.’’ 2013 MAP Participant should submit its applies to all MAP Participants (not just Response: CCC disagrees with the initial anti-fraud program as directed in those who expend $500,000 or more) respondents and believes CCC should be its approval letter. Thus, annual and requires a specific proactive and a part of any investigation early enough submission will take place outside of preemptive fraud prevention program. to determine if fraud has occurred. the UES application process. In One of the objectives of the fraud Sec. 1485.32 Program Income subsequent program years, a new prevention requirement is to make MAP Participant, including a former Participants more aware of the specific CCC received six comments in regard Participant that did not participate in risk for brand participants to defraud to this issue. the previous program year, will be them. The MAP requirements are in Comment: One respondent stated that required to submit its initial anti-fraud addition to, not in lieu of, the as an organization that conducts program as set forth in its approval requirements of OMB Circular A–133. activities spanning more than one letter. For continuing annual Comment: Two respondents program year, it felt there were several submissions, MAP Participants will questioned if the cost of fraud challenges with this language. It stated submit their plans as directed in their prevention review would be that it does not see a way to comply approval letters. CCC does not agree that reimbursable. strictly with the proposed language and the anti-fraud submission should be Response: CCC does not intend for further stated that it recommended that completed as part of the regular anti-fraud efforts to be reimbursable Participants be allowed to create a compliance review process. First, as with MAP funds. CCC has added program reserve (at an agreed upon noted above in response to a similar § 1485.17(d)(31) to clarify this. level) from participation fees, with the request related to operational brand Comment: One respondent stated that understanding that any funds above that procedures, the purpose of the CCC it (the Participant) has adhered to an level be remitted to CCC as they occur review is to approve a plan at the start internal controls document which and that the reserve fund itself remit to of a program year, before the program includes language on fraudulent CCC if/when the Participant terminates begins operation. Compliance reviews behavior. It stated that it would like participation in the MAP program. look at what has historically happened. clarification of the new anti-fraud Comment: Four respondents stated Moreover, during the compliance preparation policies to ensure that its they strongly support the proposed review, CCC may review the policies adhere to MAP regulations. revision. implementation of the plan, rather than Response: While CCC may provide Response: Proposed § 1485.32 the plan itself. anti-fraud training and guidance in the allowed the MAP Participant to expend In response to the comment asking future, given the differences in structure program income in furtherance of the when the MAP Participant should between classes of MAP Participants, as MAP Participant’s approved MAP expect approval of its program, CCC will well as differences between individual activities in the program year in which endeavor to complete its review within MAP Participants, CCC does not believe the program income was received. CCC, 21 calendar days of receipt. CCC should dictate a single set of anti- however, acknowledges that a MAP Comment: Sixteen respondents fraud procedures or a model anti-fraud Participant’s program can be funded questioned if a MAP Participant has plan for all MAP Participants to use. over a multi-year basis. Therefore, given multiple locations with accounting The respondent may submit its internal that the grant period may be multi-year responsibilities, does the annual review controls document to CCC by the time and certain activities may occur over have to include all locations or just the stated in its approval letter or any time more than one calendar year, CCC has corporate headquarters where the before that, at which time CCC will accordingly modified § 1485.32 to allow financial consolidation occurs? review this document and respond. MAP Participants to use program Response: Because fraud can occur Comment: One respondent income in furtherance of approved MAP both at corporate headquarters and field commented that it did not feel that each activities during the program period offices, CCC expects anti-fraud reviews Participant should be responsible for over which the MAP Participant may to encompass all of a Participant’s developing its own anti-fraud program expend the MAP funds, regardless of the offices. and that this would result in the specific program year that the income Comment: One respondent application of different security was received. Thus, for example, if a commented that this section appears to standards. This respondent stated it MAP activity in program year 1 yields apply to exclude brand participants. would be more efficient and more a net revenue in program year 2 in a The respondent stated that the current economical if CCC, with the assistance 3-year MAP grant, the MAP Participant fraud prevention program covered by of an outside contractor, could develop should apply that revenue to MAP A–133 covers this requirement, and a set of minimum anti-fraud procedures activities conducted in program year 2 therefore it asserted that this regulation for all Participants to use. or 3. CCC does not believe that allowing was redundant and recommended that Response: While CCC may provide MAP Participants to establish a reserve this regulation be eliminated or A–133 anti-fraud training and guidance in the fund with program proceeds is should be eliminated. future, given the differences in structure appropriate. Response: The anti-fraud between classes of MAP Participants, as requirements are imposed on MAP well as differences between individual Sec. 1485.36 Paperwork Reduction Participants, not brand participants that MAP Participants, CCC does not believe Requirements participate in the MAP program through CCC should dictate a single set of anti- CCC received three comments to this MAP Participants. CCC disagrees that fraud procedures or a model anti-fraud section. § 1485.31’s requirements are redundant plan for all MAP Participants to use. Comment: Three respondents with OMB Circular A–133. OMB Comment: Three respondents recommended that CCC transition from Circular A–133 requires, in part, that provided similar comments in reference solely paper recordkeeping of MAP subject entities (those who expend to § 1485.31(a)(2). All three suggested related files to electronic recordkeeping. $500,000 or more in federal awards) that the language be modified to read, Response: CCC understands the have an audit conducted. Such entities ‘‘notify CCC promptly when any respondents’ comments to refer to CCC’s

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use of the UES, the standardized online 1485.25 Failure to make required also applicable to the MAP and the Internet application used by entities to contribution. regulations set forth in this part. apply to any USDA market development 1485.26 Submissions. (3) MAP Participants must also program, including the MAP. MAP 1485.27 Disclosure of program information. comply with Title VI of the Civil Rights 1485.28 Ethical conduct. Act of 1964 and related civil rights Participants currently use the UES to 1485.29 Contracting procedures. submit reimbursement claims, trip 1485.30 Property standards. regulations and policies. reports, and other information to CCC 1485.31 Anti-fraud requirements. (4) Other laws and regulations that under the MAP. While CCC believes 1485.32 Program income. apply to MAP Participants include, but MAP Participants’ use of the UES 1485.33 Amendment. are not limited to: effectively reduces costs and increases 1485.34 Noncompliance with an agreement. (i) 2 CFR part 25—Universal Identifier efficiencies, MAP Participants cannot 1485.35 Suspension, termination, and and Central Contractor Registration transition solely from paper closeout of agreements. (ii) 2 CFR part 170—Reporting recordkeeping to electronic 1485.36 Paperwork reduction requirements. Subaward and Executive Compensation Information recordkeeping. The MAP final rule Subpart B—Market Access Program requires Participants to maintain (iii) 2 CFR part 175—Award Term for records of expenditures and § 1485.10 General purpose and scope. Trafficking in Persons (iv) 2 CFR part 180—OMB Guidelines contributions to substantiate their MAP (a) This subpart sets forth the general to Agencies on Governmentwide activities. Such records must include, terms, conditions, and policies Debarment and Suspension inter alia, original receipts for all STRE governing the Commodity Credit (Nonprocurement) (e.g., actual vendor invoices or Corporation’s (CCC) operation of the (v) 37 CFR part 401.1—Rights to restaurant checks) and any other Market Access Program (MAP). Inventions Made by Nonprofit program-related expenditure in excess (b)(1) In addition to the provisions of Organizations and Small Business Firms of $75.00 (e.g., canceled checks, this subpart, other regulations of general Under Government Grants, Contracts, receipted paid bills, contracts or application issued by the U. S. and Cooperative Agreements purchase orders, per diem calculations, Department of Agriculture (USDA), (vi) Executive Order 13224, as travel vouchers, and credit memos). including the regulations set forth in amended, Blocking Property and Where the original documentation is Chapter XXX of this title, ‘‘Office of the Prohibiting Transactions with Persons provided in paper, MAP Participants Chief Financial Officer, Department of Who Commit, Threaten to Commit, or must maintain and make such paper Agriculture,’’ may apply to the MAP Support Terrorism documentation available for review for and MAP Participants, to the extent that (c) Under the MAP, CCC may provide compliance and monitoring purposes. these regulations of general application grants to eligible U.S. entities to conduct List of Subjects in 7 CFR Part 1485 do not directly conflict with the certain marketing and promotion provisions of this subpart. These activities aimed at developing, Agricultural commodities, Exports. include, but are not limited to: maintaining, or expanding commercial For the reasons stated in the (i) 7 CFR part 1, subpart A—Official export markets for U.S. agricultural preamble, CCC amends 7 CFR part 1485 Records commodities and products. MAP as follows: (ii) 7 CFR part 3—Debt Management Participants may receive assistance for (iii) 7 CFR part 15, subpart A— PART 1485—GRANT AGREEMENTS either generic or brand promotion Nondiscrimination FOR THE DEVELOPMENT OF activities. While activities generally take (iv) 7 CFR part 3015—Uniform FOREIGN MARKETS FOR U.S. place overseas, reimbursable activities Federal Assistance Regulations AGRICULTURAL COMMODITIES may also take place in the United States. (v) 7 CFR part 3016—Uniform CCC expects all activities that occur in ■ 1. The authority citation for 7 CFR Administrative Requirements for Grants the United States for which MAP part 1485 reads as follows: and Cooperative Agreements to State reimbursement is sought to develop, and Local Governments Authority: 7 U.S.C. 5623, 5662–5663 and maintain, or expand the commercial sec. 203, 402–403, Pub. L. 95–501, as (vi) 2 CFR part 417—Government- export market for the relevant U.S. amended, 92 Stat 1685 and sec. 1302, Pub. wide Debarment and Suspension agricultural commodity in accordance L. 103–66, 107 Stat. 330. (Nonprocurement) with the MAP Participant’s approved (vii) 7 CFR part 3018—New ■ 2. Subpart B is revised to read as MAP program. When considering Restrictions on Lobbying follows: eligible nonprofit U.S. trade (viii) 7 CFR part 3019—Uniform organizations, CCC gives priority to Subpart B—Market Access Program Administrative Requirements for Grants organizations that have the broadest Sec. and Other Agreements with Institutions producer representation and affiliated 1485.10 General purpose and scope. of Higher Education, Hospitals, and industry participation of the commodity 1485.11 Definitions. Other Nonprofit Organizations being promoted. 1485.12 Participation eligibility. (ix) 7 CFR part 3021—Government- (d) The MAP generally operates on a 1485.13 Application process. 1485.14 Application review and formation wide requirements for drug-free reimbursement basis. of agreements. workplace (financial assistance) (e) CCC’s policy is to ensure that 1485.15 Operational procedures for brand (x) 7 CFR part 3052—Audits of States, benefits generated by MAP agreements programs. Local Governments, and Non-profit are broadly available throughout the 1485.16 Contribution rules. Organizations relevant agricultural sector and that no 1485.17 Reimbursement rules. (xi) 48 CFR part 31—Contract Cost single entity gains an undue advantage. 1485.18 Reimbursement procedures. Principles and Procedures of the Federal CCC also endeavors to enter into MAP 1485.19 Advances. Acquisition Regulations. agreements covering a broad array of 1485.20 Employment practices. 1485.21 Financial management. (2) In addition, relevant provisions of agricultural commodity sectors. The 1485.22 Reports. the CCC Charter Act (15 U.S.C. 714 et MAP is administered by personnel of 1485.23 Evaluation. seq.) and any other statutory provisions the Foreign Agricultural Service (FAS) 1485.24 Compliance reviews and notices. that are generally applicable to CCC are acting on behalf of CCC.

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§ 1485.11 Definitions. company, or the brand of a U.S. market have an equal opportunity to For purposes of this subpart the agricultural cooperative, or any activity participate in the activity and that at following definitions apply: undertaken by a MAP Participant in the least two U.S. companies participate. In Activity—a specific foreign market brand program. addition, an activity that promotes development effort undertaken by a CCC—the Commodity Credit separate items from multiple U.S. MAP Participant. Corporation, including any agency or companies will be considered a generic Administrative expenses or costs— official of the United States delegated promotion only if the promotion of the expenses or costs of administering, the responsibility to act on behalf of separate items maintains a unified directing, and controlling an CCC. theme (i.e., a dominant idea or motif) organization that is a MAP Participant. Contribution—an expenditure made and style and is subordinate to the Generally, this would include expenses by a MAP Participant, the U.S. industry, promotion of the generic theme. or costs such as those related to: or State agency in support of an MAP—the Market Access Program. (1) Maintaining a physical office approved activity. This includes MAP Notice—Market Access Program (including, but not limited to, rent, expenditures to be made by entities in notices are documents that CCC issues office equipment, office supplies, office the MAP Participant’s industry in for informational purposes. These MAP de´cor, office furniture, computer support of the entities’ related notices are made available electronically hardware and software, maintenance, promotion activities in the markets at http://www.fas.usda.gov/mos/ extermination, parking, business cards); covered by the MAP Participant’s programs/mnotice.html. These notices (2) Personnel (including, but not agreement. have no legal effect. They are intended limited to, salaries, benefits, payroll Credit memo—a commercial to alert MAP Participants of various taxes, individual insurance, training); document, also known as a credit aspects of CCC’s current administration (3) Communications (including, but memorandum, issued by the MAP of the MAP program. For example, CCC not limited to, phone expenses, internet, Participant to a commercial entity that issues MAP notices to alert MAP mobile phones, personal digital owes the MAP Participant a certain Participants of procedures for requesting assistants, email, mobile email devices, sum. A credit memo is used when the advances, applicable federal pay scale postage, courier services, television, MAP Participant owes the commercial rates, lists of economic and trade radio, walkie talkies); entity a sum less than the amount the sanctions against certain foreign (4) Management of an organization or entity owes the Participant. The credit countries, reporting formats and unit of an organization (including, but memo reflects an offset of the amount computer codes to use with the UES. not limited to, planning, supervision, the MAP Participant owes the entity MAP Participant or Participant—an supervisory travel, teambuilding, against the amount the entity owes to entity that has entered into a MAP recruiting, hiring); the MAP Participant. program agreement with CCC. (5) Utilities (including, but not Demonstration projects—activities Market—the country or countries limited to, sewer, water, energy); involving the erection or construction of targeted by an activity. (6) Professional services (including, a structure or facility or the installation Notification—a document from the but not limited to, accounting expenses, of equipment. financial services, investigatory Expenditure—either payment via the MAP Participant by which the MAP services). transfer of funds or offset reflected in a Participant proposes to CCC changes to Approval letter—a document by credit memo in lieu of a transfer of the activities and/or funding levels in an which CCC informs an applicant that its funds. approved MAP program agreement and/ MAP application for a program year has FAS—Foreign Agricultural Service, or approval letter. been approved for funding. This letter USDA. Product samples—a representative may also approve specific activities and FAS Web site—a Web site maintained part of a larger whole promoted contain terms and conditions in by FAS providing information on MAP. commodity or group of promoted addition to the program agreement. This It is currently accessible at commodities. Product samples include letter requires a countersignature by the www.fas.usda.gov/mos/programs/ all forms of a promoted commodity (e.g., MAP Participant before it becomes map.asp. fresh or processed), independent of the effective. Foreign third party—a foreign entity ultimate utilization of the sample. Attache´/Counselor—the FAS that a MAP Participant works with to Product samples might be used in employee representing USDA interests promote the export of a U.S. agricultural support of international marketing in the foreign country in which commodity under the MAP program. activities including, but not limited to, promotional activities are conducted. Generic promotion—an activity that is displays, food process testing, cooking Brand participant—a small-sized U.S. not a brand promotion but, rather, demonstrations, or trade and consumer for-profit entity, or a U.S. agricultural promotes a U.S. agricultural commodity tastings. cooperative that owns the brand(s) of generally. A generic promotion activity Program agreement—a document the U.S. agricultural commodity to be may include the promotion of a foreign entered into between CCC and a MAP promoted or has the exclusive rights to brand (i.e., a brand owned primarily by Participant setting forth the terms and use such brand(s) and that is foreign interests and being used to conditions of approved activities under participating in the MAP brand market a commodity or product in a MAP, including any subsequent promotion program of another MAP foreign market), if the foreign brand uses amendments to such agreement. Participant. This definition does not the promoted U.S. agricultural Program year—Unless otherwise include any U.S. agricultural commodity or product from multiple agreed in writing between CCC and a cooperatives that are MAP Participants U.S. suppliers. A generic promotion MAP Participant, a 12-month period that apply for MAP funds to implement activity may also involve the use of during which a MAP Participant can their own brand programs. specific U.S. company names, logos or undertake activities consistent with this Brand promotion—an activity that brand names. However, in that case, the subpart and its program agreement and involves the exclusive or predominant MAP Participant must ensure that all approval letter with CCC. use of a single U.S. company name, or U.S. companies seeking to promote such Promoted commodity—a U.S. the logo or brand name of a single U.S. U.S. agricultural commodity in the agricultural commodity the sale of

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which is the intended result of a U.S. for-profit entity—a firm, (K) Percentage of CCC resources promotion activity. association, or other entity organized or requested for general administrative Sales and trade relations incorporated, located and doing expenses; expenditures (STRE)—expenditures business for profit in the United States, (L) A Dun and Bradstreet DUNS made on breakfast, lunch, dinner, and engaged in the export or sale of a number for the applicant; receptions, and refreshments at U.S. agricultural commodity. (M) A description of the applicant approved activities; miscellaneous organization’s membership and courtesies such as checkroom fees, taxi § 1485.12 Participation eligibility. membership criteria; fares and tips; and decorations for a To participate in the MAP, an entity (N) A list of organizations affiliated special promotional occasion. shall be: with the applicant, including parent Sales team—a group of individuals (a) A nonprofit U.S agricultural trade organizations, subsidiaries, and engaged in an approved activity organization; partnerships; intended to result in specific sales. (b) A nonprofit SRTG; (O) A description of the applicant’s Small-sized entity—a U.S. commercial (c) A U.S. agricultural cooperative; or management and administrative entity that meets the small business size (d) A State agency. capability; standards published at 13 CFR part 121, (P) A description of the applicant’s Small Business Size Regulations. § 1485.13 Application process. prior export promotion experience; SRTG—the acronym for State (a) General application requirements. (Q) Value, in U.S. dollars, of proposed contributions from the applicant or the Regional Trade Group. An SRTG is a CCC will periodically publish a Notice applicant’s proposed contribution stated nonprofit association of state-funded in the Federal Register that it is as a percentage of the total dollar agricultural promotion agencies. accepting applications for participation amount of CCC resources requested; and Supergrade—a salary level above the in MAP. Applications shall be reimbursable salary range generally (R) Value, in U.S. dollars, of proposed submitted in accordance with the terms contributions from other sources. allowable under MAP, which CCC may and requirements specified in the approve on a case by case basis. This (ii) [Reserved] Notice and in these regulations. (2) Program justification. salary level is available only for certain Applicants are encouraged to submit a (i) All applications shall contain: non-U.S. employees who direct MAP UES through the UES Internet Web site, (A) A description of the promoted Participants’ overseas offices. but are not required to do so. Applicants U.S. agricultural commodity(s), its Temporary contractor—a contractor, may apply to conduct a generic harmonized tariff classification, the typically a consultant or other highly promotion program and/or a brand applicable commodity aggregate code paid professional, that is hired on a promotion program that provides MAP (available from the UES Web site) and short term basis to assist in the funds to brand participants for branded the percentage of U.S. origin content by performance of an activity. promotion. An applicant who is a U.S. weight, exclusive of added water; Trade team—a group of individuals agricultural cooperative may also apply (B) A description of the anticipated engaged in an approved activity for funds to conduct its own brand supply and demand situation for the intended to promote the interests of an promotion program. promoted U.S. agricultural entire agricultural sector rather than to (1) Applicant and program commodity(s); result in specific sales by any of its information. (C) The volume and value of exports members. (i) All applications shall contain: of the promoted U.S. agricultural UES Web site—a Web site maintained (A) The name, address, and Internet commodity(s) to the targeted markets for by FAS through which applicants may location of the home page of the the most recent 3-year period; apply online to MAP and any other applicant organization; (D) If the proposal is for 2 or more USDA market development program. (B) The name of the applicant’s Chief years, an explanation why the proposal The Web site is currently accessible at should be funded on a multi-year basis; www.fas.usda.gov/mos/ues/unified.asp. Executive Officer; (C) The name, telephone number, fax and Unified Export Strategy (UES)—is a (E) A certification and, if requested by number, and email address of the standardized online Internet application CCC, a written explanation supporting applicant’s primary contact person; developed by USDA and available for the certification that any funds received (D) The name(s) of the person(s) use by entities to apply to any USDA will supplement, but not supplant, any responsible for managing the proposed market development program, including private or third-party funds or other program; the MAP. contributions to program activities. An (E) A description of the applicant U.S. agricultural commodity—any explanation, if one is requested, shall organization, including the type of agricultural commodity, including any indicate why the applicant is unlikely to organization of the applicant (e.g., food, feed, fiber, forestry product, carry out the activities without Federal nonprofit SRTG), its mission, and the livestock, or insect of U.S. origin or fish financial assistance. In determining statutory authorities by which it is harvested from a U.S. aquaculture farm whether Federal funds would constituted and under which it operates, or harvested by a vessel as defined in supplement or supplant private or third- if applicable; Title 46 of the United States Code, in party funds or contributions, CCC will waters that are not waters (including the (F) Tax exempt identification number consider the applicant’s prior overall territorial sea) of a foreign country, and of the applicant, if applicable; marketing budget in the MAP program any product thereof, excluding tobacco. (G) Beginning and ending dates for from year-to-year, variations in An agricultural commodity shall be proposed program year (mm/dd/yy-mm/ promotional strategies within a country, considered to be U.S. origin if it is dd/yy); and new markets. comprised of at least 50 percent by (H) Dollar amount of CCC resources (ii) [Reserved] weight, exclusive of added water, of requested for generic activities; (3) Proposed program’s strategic plan. agricultural commodities grown or (I) Dollar amount of CCC resources (i) All applications shall include a raised in the United States. requested for brand activities; strategic plan that contains: USDA—the United States Department (J) Total dollar amount of CCC (A) A description of overall long term of Agriculture. resources requested; strategic goals to be advanced by the

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proposed activities for the ensuing 3–5 (1) A short description of the relevant markets for U.S. agricultural years; market constraint or opportunity; commodities. The selection process, by (B) An explanation of the (2) A budget for each proposed its nature, involves the exercise of organization’s strategic planning process activity, identifying the source of funds. judgment. CCC’s choice of Participants and identification of priority target (ii) Applications for brand promotion and proposed promotion projects markets, including a summary of assistance shall also include in their requires that it consider and weigh a proposed budgets by country and strategic plans: number of factors, some of which commodity aggregate code; (A) A description of how the brand cannot be mathematically measured— (C) A description of the world market promotion program will be publicized e.g., market opportunity, market situation for the exported U.S. to U.S. industry; and strategy, and management capability. agricultural commodity(s); (B) The criteria that will be used to CCC may require that an applicant (D) A description of competition from allocate funds to U.S. for-profit entities participate in the MAP through another other exporters; and U.S. agricultural cooperatives. MAP Participant or applicant. (E) An evaluation plan describing the (b) CCC may request any additional (b) Application review criteria. In applicant’s goals and the applicant’s information that it deems necessary to assessing the likelihood of success of plans for monitoring and evaluating evaluate an application, including, but the applications it receives and deciding performance towards achieving these not limited to, performance which it will approve, CCC will follow goals. This evaluation plan should set measurement information. results-oriented management principles forth specific goals and benchmarks set (c) Special rules governing and consider the following criteria: at regular intervals to be used to identify demonstration projects funded with (1) The effectiveness of program results against identified constraints and CCC resources. management; opportunities and to measure progress (1) CCC will consider proposals for (2) Soundness of accounting made in the target market. Evaluation of demonstration projects, provided: procedures; a proposed MAP program’s effectiveness (i) No more than one such (3) The nature of the applicant will depend on a clear statement by the demonstration project per constraint is organization. With respect to nonprofit applicant of goals, method of undertaken within a market; U.S. trade organizations, preference will achievement, and expected results of (ii) The constraint to be addressed in be given to those organizations with the programming at regular intervals. The the target market is a lack of technical broadest base of producer representation overall goal of the MAP and of knowledge or expertise; of and affiliated industry participation individual Participants’ programming is (iii) The demonstration project is a for the commodity being promoted; to achieve or maintain sales that would practical and cost effective method of (4) Prior export promotion experience; not have occurred in the absence of overcoming the constraint; and (5) Appropriateness of staffing; MAP funding. A MAP Participant may (iv) A third-party must participate in (6) Adequacy of the applicant’s modify and resubmit this plan for re- such project through a written strategic plan in the following approval at any time during the program agreement with the MAP Participant. categories; (d) Universal Identifier and Central year. (i) Description of target market Contractor Registration (CCR) (F) For each target country, 5 years or conditions; (1) In accordance with 2 CFR Part 25, as many years as are available of: (ii) Description of and plan for (1) Historical U.S. export data; each entity that applies to the MAP addressing market constraints and (2) U.S. market share; and program and does not qualify for an opportunities; (3) MAP funds received by the exemption under 2 CFR 25.110 must: (iii) Breadth of industry participation applicant; (i) Be registered in the CCR prior to in strategic planning process; (G) For each target country, 3 years of submitting an application or plan; projected U.S. export data and U.S. (ii) Maintain an active CCR (iv) Strategic prioritization identified market share; registration with current information at in proposed plan; (H) Country strategy, including all times during which it has an active (v) Export volume and value and market constraint(s) impeding U.S. Federal award or an application or plan market share goals in each target exports (e.g., trade barriers) or under consideration by CCC; and country; opportunities present and the strategy (iii) Provide its DUNS number in each (vi) Description of evaluation plan proposed to overcome constraints or application or plan it submits to CCC. and suitability of the plan for take advantage of the opportunities, (2) [Reserved] performance measurement; and previous activities in the country, and (e) Reporting Subaward and Executive (vii) Past program results and/or the projected impact of the proposed Compensation Information. In evaluations, including program success program on U.S. exports; accordance with 2 CFR Part 170, each stories. (I) A justification for any proposed entity that applies to the MAP program (c) Allocation factors. CCC determines overseas office, including a staffing plan and does not qualify for an exception which applications to approve and listing job titles, position descriptions, under 2 CFR 170.110(b) must ensure it develops preliminary recommended salary ranges, any request for approval has the necessary processes and systems funding levels for each approved of supergrade salaries, and an itemized in place to comply with the applicable application based on the following administrative budget; reporting requirements of 2 CFR Part factors, in addition to those in (J) A description of any demonstration 170 should it receive MAP funding. paragraph (b) of this section. CCC projects, if applicable; determines final funding levels after (K) Data summarizing the applicant’s § 1485.14 Application review and allocating available funds to approved historical and projected exports, market formation of agreements. applications on the basis of criteria that share, and MAP budgets of the (a) General. CCC will, subject to the will be fully described in each program promoted U.S. agricultural availability of funds, approve those year’s MAP announcement in the commodity(s); applications that it considers to present Federal Register: (L) A written presentation of all the best opportunity for developing, (1) Size of the budget request in proposed activities including: maintaining, or expanding export relation to projected value of exports;

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(2) Where applicable, size of the and passwords for the UES Web site, as (iii) Notifications shall describe the budget request in relation to actual necessary. MAP Participants shall activity, changes to the activity, the value of exports in prior years; protect these IDs and passwords in existing funding level, the proposed (3) Where applicable, Participant’s accordance with USDA’s information funding level, and a justification for past projections of exports compared technology policies that CCC will transfer of funds, if applicable. with actual exports; provide to MAP Participants. MAP (4) Level of contributions by the Participants shall immediately notify § 1485.15 Operational procedures for brand programs. applicant and by all other sources; CCC whenever a person who possesses (5) Market share goals in target the ID and password information no (a) Where CCC approves an country(ies); longer needs such information or a application by a MAP Participant to run (6) The percentage by weight, person who is not authorized gains such a brand promotion program that will exclusive of added water, of U.S. information. include brand Participants, the MAP agricultural commodities contained in (h) A MAP Participant through which Participant shall establish brand the promoted products; small-sized U.S. for-profit entities are program operational procedures. The (7) The degree of value-added participating in the MAP program shall MAP Participant annually shall submit processing in the United States; and obtain annual certifications from all to CCC for approval its proposed brand (8) Proposed MAP-funded general such entities that they are small-sized program operational procedures for administrative and overhead costs entities or U.S. agricultural cooperatives such program year. CCC will notify all compared to proposed MAP-funded as defined in these regulations. The new and existing MAP Participants in direct promotional costs. Participant shall retain these writing in each Participant’s annual (d) Approval decision. certifications in accordance with the approval letter and through the FAS (1) CCC will approve those Web site as to applicable submission applications that it determines best recordkeeping requirements of this subpart. dates for and dates for approvals of satisfy the criteria and factors specified brand program operation procedures. above. (i) Changes to activities and funding. (1) Adding a new activity. Such procedures shall include, at a (2) Notification of decision. CCC will minimum, a brand program application, notify each applicant in writing of the (i) A MAP Participant may not conduct a new activity without first application procedures, application final disposition of its application. review criteria, brand participant (e) Formation of agreements. CCC will obtaining an approved activity budget eligibility requirements, a participation send a program agreement (or for such change. To request approval of agreement, reimbursement amendment to an existing program such activity budget, the MAP requirements, compliance requirements, agreement), an approval letter, and a Participant shall submit a notification to reporting and recordkeeping signature card to each approved CCC. requirements, employment practices, applicant. The program agreement or (ii) A notification for a new activity financial management requirements, amendment and the approval letter will shall provide an activity justification contracting procedures, and evaluation outline which activities and budgets are and identify any related adjustments to requirements. approved and will specify any special the approved strategic plan, including (b) The MAP Participant shall not terms and conditions applicable to a changes in market, constraint, or enter into any participation agreements MAP Participant’s program, including opportunity that the activity proposes to with brand participants nor shall it any requirements with respect to address. The notification shall contain implement any MAP brand activities for contributions and program evaluations. the activity description, the proposed the applicable program year unless and An applicant that decides to accept the budget, and a justification of transfer of until CCC has communicated in writing terms and conditions contained in the funds. its approval of the proposed operational program agreement or amendment and (iii) After receipt of the notification, procedures to the MAP Participant. the approval letter must so indicate by CCC will inform the MAP Participant having its Chief Executive Officer (CEO) via the UES Web site whether the (c) Participation agreements between or designee sign the program agreement requested budget is approved. MAP Participants and brand or amendment and the approval letter (2) Modifying existing activities and participants. Where CCC approves a and submit these to CCC. Final their funding levels. MAP Participant’s application to run a agreement shall occur when the (i) A MAP Participant desiring to brand promotion program that will program agreement or amendment and increase the funding level for existing, include brand participants, the MAP the approval letter are signed by both approved activities addressing a single Participant shall enter into participation parties. constraint or opportunity by more than agreements with brand participants. (f) Signature cards. The MAP $25,000 or 25 percent of the approved These agreements must: Participant shall designate at least two funding level, whichever is greater, (1) Specify a time period for such individuals in its organization to sign must first submit a notification brand promotion and require that all program agreements and amendments, explaining the adjustment to CCC before brand promotion expenditures be made approval letters, reimbursement claims, making such change. within the MAP Participant’s approved and advance requests. The MAP (ii) A MAP Participant may make program year; Participant shall submit the signature significant adjustments below that (2) Make no allowance for extension card signed by those designated threshold to the funding levels for or renewal; individuals and by the MAP existing, approved activities without (3) Limit reimbursable expenditures Participant’s CEO to CCC. The prior notification to CCC, only if it to those made in countries and for Participant shall immediately notify submits a notification explaining the activities approved in the brand CCC of any changes in signatories and adjustments to CCC no later than 30 participant’s activity plan; shall submit a revised signature card days after the change. Minor (4) Specify the percentage of accordingly. adjustments to existing, approved promotion expenditures that will be (g) UES ID and passwords. CCC will activities and/or funding levels do not reimbursed, reimbursement procedures, provide each MAP Participant with IDs require notification. and documentation requirements;

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(5) Include a written certification by (9) Require the brand participant to program funds to pay any the brand participant that it either owns maintain all original records and administrative costs of the MAP the brand of the product it will promote documents relating to program activities Participant’s U.S. office(s), including or has exclusive rights to promote the for 5 calendar years following the end legal fees, except as set forth in this brand in each of the countries in which of the applicable program year and subpart. Where the MAP Participant promotion activities will occur; make such records and documents uses its own funds to pay for (6) Require that all product labels, available upon request to authorized administrative costs, such costs may be promotional material, and advertising officials of the U.S. Government. counted in calculating the amount of will identify the origin of the U.S. (d) MAP Participants may not provide contributions the MAP Participant agricultural commodity as ‘‘American’’, assistance to a single entity including a contributes to MAP generic or brand ‘‘Product of the United States of entity reincorporated or re-organized promotion programs. America’’, ‘‘Product of the U.S.’’, under the same or different name if the (d) Eligible contributions. ‘‘Product of the U.S.A.’’, ‘‘Product of reincorporated or re-organized entity is (1) In calculating the amount of America’’, ‘‘Grown in the United States substantially similar to the pre-existing contributions that it will make, and the of America’’, ‘‘Grown in the U.S.’’, entity, for brand promotion in a single contributions that the U.S. industry ‘‘Grown in the U.S.A.’’, ‘‘Grown in country for more than 5 years. Such 5 (including expenditures to be made by America’’, ‘‘Made in the United States of years do not need to be consecutive. entities in the applicant’s industry in America,’’ ‘‘Made in the U.S.’’, ‘‘Made Such 5-year period shall not begin prior support of the entities’ related in the U.S.A.’’, ‘‘Made in America’’, or to the 1994 program year or the brand promotion activities in the markets product of, grown in or made in any participant’s first program year, covered by the applicant’s application) state or territory of the United States of whichever is later. In limited or State agency will make, the MAP America spelled out in its entirety, or circumstances, CCC may waive the 5 applicant may include the costs listed other U.S. regional designation if year limitation if CCC determines that under paragraph (d)(2) of this section if: approved in advance by CCC; that such further assistance is in the best interests (i) Expenditures will be made in origin identification will be of the MAP. CCC shall, at its discretion, furtherance of an approved activity, and conspicuously displayed in a manner decide whether a reincorporated or re- (ii) The contributor has not been and easily observed as identifying the origin organized entity is substantially similar will not be reimbursed by any source for of the product; and that such origin to the pre-existing entity for purposes of such costs. identification will conform, to the applying this 5-year rule. Brand (2) Subject to paragraph (d)(1) of this extent possible, to the U.S. standard of participants’ participation in certain section, as well as applicable cost 1⁄6 inch (.42 centimeters) in height based international trade shows in foreign principles (e.g., 2 CFR Parts 220, 225, on the lower case letter ‘‘o’’. The use of countries will not be considered when and 230) to the extent these principles the above terms as a descriptor or in the determining such brand participants’ do not directly conflict with the name of the product (e.g., Texas style time in country for purposes of the 5 provisions of this subpart, eligible chili, Bob’s American Pizza) does not year graduation requirement. Such contributions are: satisfy the product origin requirement. shows must meet two requirements: (i) Cash; Phrases ‘‘product of ’’, ‘‘grown in’’ or They are food or agricultural shows, (ii) Compensation paid to personnel; ‘‘made in’’ are encouraged, but not with no less than 30% of exhibitors (iii) The cost of acquiring materials, required. A MAP Participant may selling food or agricultural products, supplies or services; request an exemption from this and they are international shows, (iv) The cost of office space; requirement on a case-by-case basis. All meaning they target buyers, distributors (v) A reasonable and justifiable such requests shall be in writing and and the like from more than one foreign proportion of general administrative include justification satisfactory to CCC country and no less than 15% of each costs and overhead; that this labeling requirement would show’s visitors are from countries other (vi) Payments for indemnity and hinder a MAP Participant’s promotional than the host country. CCC will compile fidelity bond expenses; efforts. CCC will determine, on a case by a list of international trade shows that (vii) The cost of business cards that case basis, whether sufficient CCC exempts from the graduation target a foreign audience; justification exists to grant an requirement and such list will be (viii) The cost of seasonal greeting exemption from the labeling announced to MAP Participants via a cards; requirement. In addition, CCC may MAP notice issued on FAS’ Web site. (ix) Fees for office parking; temporarily waive this requirement (x) The cost of subscriptions that are where CCC has determined that such § 1485.16 Contribution rules. of a technical, economic, or marketing labeling will likely harm sales rather (a) In MAP generic promotion nature and that are relevant to the than help them. Such determinations programs, a MAP Participant shall approved activities of the MAP will be announced to MAP Participants contribute a total amount in goods, Participant; via a MAP notice issued on FAS’ Web services, and/or cash equal to at least 10 (xi) The cost of activities conducted site; percent of the value of resources to be overseas; (7) Include a written certification by provided by CCC for all generic (xii) Credit card fees; the brand participant that it is either a promotion activities proposed to be (xiii) The cost of any independent small-sized entity as defined in this undertaken by the MAP Participant. evaluation or audit that is not required subpart or a U.S. agricultural (b) In MAP brand promotion by CCC to ensure compliance with cooperative; programs, a MAP Participant program agreement or regulatory (8) Require that the brand participant conducting its own brand promotion or requirements; submit to the MAP Participant a a brand participant shall contribute at (xiv) The cost of giveaways, awards, statement certifying that any Federal least 50 percent of the total eligible prizes and gifts; funds received will supplement, but not expenditures made on each approved (xv) The cost of product samples; supplant, any private or third party brand promotion. (xvi) Fees for participating in U.S. funds or other contributions to program (c) A MAP Participant must use its government sponsored or endorsed activities; and own funds and may not use MAP export promotion activities;

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(xvii) The cost of air and local travel (1) Production and placement of Participants via a MAP notice issued on in the United States; advertising, in print, electronic media, FAS’ Web site; (xviii) Payment of employee’s or billboards, or posters, which may (8) Subject to § 1485.17(b)(18), contractor’s share of personal taxes; include advertising the availability of international travel expenditures, not to (xix) STRE and the cost associated price discounts, except that advertising exceed the full fare economy rate, with trade shows, seminars, and associated with a coupon or price including any fees for modifying the entertainment conducted in the United discount for the MAP promoted product originally purchased airline ticket, per States; is not reimbursable. If advertising is diem, passports, visas and inoculations, (xx) Other administrative expenses related to both coupons or price as allowed under the U.S. Federal (e.g., supervisory travel from the U.S. to discounts for products other than the Travel Regulations (41 CFR parts 301 an overseas office); and MAP Participant’s promoted products as through 304), for no more than two (xxi) The cost of any activity well as for MAP-promoted products, representatives of a single brand expressly listed as reimbursable in this expenditures for such advertising will participant (or MAP Participant directly subpart. not be reimbursed in whole or in part running its own brand program) to (3) The following are not eligible (e.g., expenditures may not be prorated exhibit their company’s (or contributions: and submitted for reimbursement). cooperative’s) products at a retail, trade, (i) Any portion of salary or Electronic media includes, but is not or consumer exhibit or show held compensation of an individual who is limited to, radio, television, electronic outside the United States. the target of an approved promotional mail, internet, telephone, text Representatives may include employees activity; messaging, and podcasting; and board members of private (ii) Any expenditure, including that (2) Production and distribution of companies, employees or members of portion of salary and time spent, related banners, recipe cards, table tents, shelf cooperatives, or any broker, consultant, to promoting membership in the talkers, and other similar point of sale or marketing representative contracted Participant organization (sometimes materials; by the company or cooperative to referred to in the industry as (3) Direct mail advertising; represent the company or cooperative in ‘‘backsell’’); (4) In-store and food service sales transactions; (iii) Any land costs other than promotions, product demonstrations to (9) Subscriptions that are of a allowable costs for office space; the trade and to consumers, and technical, economic, or marketing (iv) Depreciation; distribution of product samples (but not nature and that are relevant to the (v) The cost of refreshments and the purchase of the product samples); approved activities of the MAP related equipment provided to office (5) Temporary displays and rental of Participant; staff; space for temporary displays; (10) Demonstrators, interpreters, (vi) The cost of insuring articles (6) Expenditures, other than travel translators, receptionists, and similar owned by private individuals; expenditures, associated with seminars temporary workers who help with the (vii) The cost of any arrangement that and educational training, whether implementation of individual has the effect of reducing the selling conducted in the United States or promotional activities, such as trade price of a U.S. agricultural commodity; outside the United States; shows, in-store promotions, food service (viii) The cost of product (7) Subject to § 1485.17(b)(18), promotions, and trade seminars; development, product modifications, or expenditures, other than travel (11) Giveaways, awards, prizes, gifts product research; expenditures, associated with retail, and other similar promotional materials, (ix) Slotting fees or similar sales trade and consumer exhibits and shows, subject to such reimbursement expenditures; whether held outside or inside the limitation as CCC may determine and (x) Membership fees in clubs and United States, including participation announce in writing to MAP social organizations; and fees, booth construction, transportation (xi) Any expenditure for an activity Participants via a MAP notice issued on of related materials, rental of space and prior to CCC’s approval of that activity. FAS’ Web site. Reimbursement is equipment, and duplication of related (4) CCC shall determine, at CCC’s available only when: (1) The items are printed materials. However, with regard discretion, whether any cost not described in detail with a per unit cost to non-travel expenditures associated expressly listed in this section may be in an approved strategic plan and (2) with retail, trade and consumer exhibits included by the MAP Participant as an distribution of the promotional item is and shows held inside the United eligible contribution. not contingent upon the consumer, or States, such expenditures are other target audience, purchasing a good § 1485.17 Reimbursement rules. reimbursable only if the exhibit or show or service to receive the promotional (a) A MAP Participant may seek is: (1) a food or agricultural show with item; reimbursement for an eligible no less than 30% of exhibitors selling (12) The design and production of expenditure if: food or agricultural products, (2) an packaging, labeling or origin (1) The expenditure was made in international show that targets buyers, identification, to be used during the furtherance of an approved activity; and distributors and the like from more than program year in which the expenditure (2) The Participant has not been and one foreign country and no less than is made, if such packaging, labeling or will not be reimbursed for such 15% of its visitors are from countries origin identification is necessary to meet expenditure by any other source. other than the host country, and (3) an the importing requirements of a foreign (b) Subject to paragraphs (a) and (d) exhibit or show that the MAP country; of this section, as well as applicable cost Participant has not participated in (13) The design, production, and principles (e.g., 2 CFR Parts 220, 225, within the last three years using funds distribution of coupons for products and 230) to the extent these principles from a source other than the MAP. CCC other than the MAP Participant’s do not directly conflict with the will compile a list of approved retail, promoted products. If such activities provisions of this subpart, for either trade and consumer exhibits and shows include both coupons or price discounts brand or generic promotion activities, held inside the United States for which for products other than the MAP CCC will reimburse, in whole or in part, MAP reimbursement is available and Participant’s promoted products as well the cost of: such list will be announced to MAP as for MAP-promoted products,

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expenditures for such activities will not trade and consumer exhibit or show, portion of such compensation that be reimbursed in whole or in part (e.g., whether held outside or inside the exceeds locally prevailing levels, which expenditures may not be prorated and United States, MAP funds may be used the MAP Participant shall document by submitted for reimbursement); to reimburse the travel and/or non- a salary survey or other means, except (14) An audit of a MAP Participant as travel expenditures of only those MAP for approved supergrades; required by Office of Management and Participants located within the U.S. (4) A retroactive salary adjustment for Budget Circular A–133 if the MAP is the pavilion. Such expenditures must also non-U.S. citizen staff employees or non- MAP Participant’s largest source of adhere to the standard terms and U.S. contractors stationed overseas that Federal funding; conditions of the U.S. pavilion conforms to a change in FSN salary (15) The translation of written organizer. Upon written request, CCC plans, effective as of the date of such materials as necessary to carry out may temporarily waive this subsection, change; approved activities; on a case by case basis, where: the trade (5) Accrued annual leave as of the (16) Expenditures associated with show is segregated into product time employment is terminated or as of developing, updating, and servicing pavilions, or a company’s distributor or such time as required by local law; Web sites on the Internet that clearly importer is located outside the U.S. (6) Overtime paid to clerical staff of target a foreign audience; pavilion. Such waiver will be provided approved MAP-funded overseas offices; (17) International travel expenditures, to the MAP Participant in writing; and (7) Temporary contractor fees for not to exceed the full fare economy rate, (19) Contracts with U.S. based contractors stationed overseas, except including any fees for modifying the organizations when the only contracted CCC will not reimburse any portion of originally purchased airline ticket, per service such organizations provide to a any such fee that exceeds the daily gross diem, passports, visas and inoculations, MAP Participant is carrying out a salary of a GS–15, Step 10 for U.S. as allowed under the U.S. Federal specific market promotion activity in Government employees in effect on the Travel Regulations (41 CFR parts 301 the United States directed to a foreign date the fee is earned, unless a bidding through 304), incurred for a foreign audience (e.g., a trade mission of foreign process reveals that such a contractor is trade mission conducted outside the buyers coming to the United States to not available at or below that salary rate; United States that is an activity under visit U.S. exporters). Such contracts may (8)(i) Subject to § 1485.17(b)(18), international travel expenditures, not to an approved branded program and that be reimbursable as a direct promotional exceed the full fare economy rate, has met the following conditions: expense. If a U.S. based organization including any fees for modifying the (i) Trade mission travel for company provides administrative services to the originally purchased airline ticket, per (or cooperative) representatives was MAP Participant’s domestic home office diem, passports, visas and inoculations, identified as a separate approved during a program year, any direct for activities held outside the United activity in the MAP Participant’s UES; promotional services such organization States or in the United States, as (ii) The trade mission included provides to the Participant, whether for allowed under the U.S. Federal Travel representatives, as defined in the Participant’s domestic or overseas Regulations (41 CFR parts 301 through § 1485.17(b)(8), from a minimum of five offices, during the same program year different companies (or cooperatives), 304), except that if the activity is are not reimbursable. participation in a retail, trade, or and no more than two representatives (c) Subject to paragraphs (a) and (d) of consumer exhibit or show held inside from each participating company (or this section, but for generic promotion the United States, international travel cooperative); activities only, CCC will also reimburse, expenditures are covered only if the (iii) The appropriate FAS overseas in whole or in part, the cost of: office supported the trade mission by (1) Compensation and allowances for exhibit or show is: (1) A food or dedicating meaningful funding or other housing, educational tuition, and cost of agricultural show with no less than 30% resources (such as facilities or staff time) living adjustments paid to a U.S. citizen of exhibitors selling food or agricultural to the activity; and employee or a U.S. citizen contractor products, (2) an international show that (iv)(A) The MAP Participant with the stationed overseas, except CCC will not targets buyers, distributors and the like approved brand program produced an reimburse that portion of: from more than one foreign country and itinerary or agenda for the trade mission (i) The total of compensation and no less than 15% of its visitors are from that demonstrated that company (or allowances that exceed 125 percent of countries other than the host country, cooperative) representatives would be the level of a GS–15 Step 10 salary for and (3) an exhibit or show that the MAP engaged for a minimum of 6 hours per U.S. Government employees, and Participant has not participated in day (except for the first and last days of (ii) Allowances that exceed the rate within the last three years using funds the mission) in trade mission activities authorized for U.S. Embassy personnel; from a source other than the MAP. CCC that include, at a minimum, each of the (2) Approved supergrade salaries for will compile a list of approved retail, following: non-U.S. citizens and non-U.S. trade and consumer exhibits and shows (1) A product showcase where the contractors stationed overseas; held inside the United States for which FAS overseas office approved an (3) Compensation of non-U.S. citizen MAP reimbursement is available and invitation list of qualified buyers; staff employees or non-U.S. contractors such list will be announced to MAP (2) Pre-arranged one-on-one business stationed overseas subject to the Participants via a MAP notice issued on meetings; and following limitations: FAS’ Web site. (3) Evaluation and feedback sessions (i) Where there is a local U.S. (ii) CCC generally will not reimburse with FAS staff and trade mission Embassy Foreign Service National (FSN) any portion of air travel, including any sponsors. salary plan, CCC will not reimburse any fees for modifying the originally (B) Reimbursement is conditional on portion of such compensation that purchased ticket, in excess of the full the MAP Participant having notified in exceeds the compensation prescribed fare economy rate or when the MAP writing the Attache´/Counselor in the for the most comparable position in the Participant fails to notify the Attache´/ destination country in advance of the FSN salary plan, except for approved Counselor in the destination country in travel; supergrades, or advance of the travel, unless the CCC (18) Where USDA has sponsored or (ii) Where an FSN salary plan does determines it was impractical to provide endorsed a U.S. pavilion at a retail, not exist, CCC will not reimburse any such notice. If a traveler flies in

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business class or a different premium the time a traveler spends at an airport, taking place within the United States class, the basis for reimbursement will other than the originating or destination with prior written approval from CCC. be the full fare economy class rate for airport, which is a normally scheduled MAP Participants are required to use the the same flight and the MAP Participant part of a flight. A change of planes is the appropriate American Embassy shall provide documentation time a traveler spends at an airport, representational funding guidelines for establishing such full fare economy other than the originating or destination breakfasts, lunches, dinners and class rate to support its reimbursement airport, to disembark from one flight receptions. MAP Participants may claim. If economy class is not offered for and embark on another. All travel exceed Embassy guidelines only when the same flight or if the traveler flies on should follow a direct or usually they have received written authorization a charter flight, the basis for traveled route. Under no circumstances from the FAS Agricultural Counselor at reimbursement will be the average of should a traveler select flights in a the Embassy. The amount of the full fare economy class rate for manner that extends the scheduled unauthorized STRE expenses that flights offered by three different airlines flight time to beyond 14 hours in part exceed the guidelines will not be between the same points on the same to secure eligibility for reimbursement reimbursed. MAP Participants must pay date and the MAP Participant shall of business class travel; the difference between the total cost of provide documentation establishing (9) Automobile mileage at the local STRE events and the appropriate such average of the full fare economy U.S. Embassy rate or rental cars while amount as determined by the class rates to support its reimbursement in travel status; guidelines. For STRE incurred in the claim. (10) Other allowable expenditures United States, the MAP Participant (iii) In very limited circumstances, the while in travel status as authorized by should provide, in its request for MAP Participant may be reimbursed for the U.S. Federal Travel Regulations approval, the basis for determining its air travel up to the business class rate (41 CFR parts 301 through 304); proposed expenses; (i.e., a premium class rate other than the (11) Organization costs for overseas (20) Educational travel of dependent first class rate) upon prior written offices approved in MAP program children, visitation travel, rest and approval by CCC. Such circumstances agreements. Such costs include recuperation travel, home leave travel, are: incorporation fees, brokers’ fees, fees to emergency visitation travel for U.S. (A) Regularly scheduled flights attorneys, accountants, or investment overseas employees allowed under the between origin and destination points counselors, whether or not employees of Foreign Affairs Manual published by the do not offer economy class (or the organization, incurred in connection U.S. Department of State; equivalent) airfare and the MAP with the establishment or reorganization (21) Evacuation payments (safe haven) Participant receives written of the overseas office, and rent, utilities, and shipment and storage of household documentation from its travel agent to communications originating overseas, goods and motor vehicles; that effect at the time the tickets are office supplies, accident liability (22) U.S. office(s) administrative purchased; insurance premiums, and routine (B) Business class air travel is support expenses for the National accounting and legal services required Association of State Departments of necessary to accommodate an eligible to maintain the overseas office; traveler’s disability. Such disability Agriculture, the SRTGs, and the (12) The purchase, lease, or repair of, Intertribal Agriculture Council; must be substantiated in writing by a or insurance premiums for, capital (23) Non-travel expenditures physician; and goods that have an expected useful life associated with conducting (C) An eligible traveler’s origin and/or of at least 1 year, such as furniture, international staff conferences held destination are outside of the equipment, machinery, removable either in or outside the United States; continental United States and the fixtures, draperies, blinds, floor (24) Subject to § 1485.17(b)(18), scheduled flight time, beginning with coverings, computer hardware and domestic travel expenditures, as the scheduled departure time, ending software, and portable electronic allowed under the U.S. Federal Travel with the scheduled arrival time, and communications devices (including Regulations (41 CFR parts 301 through including stopovers and changes of mobile phones, wireless email devices, 304), for international retail, trade and planes, exceeds 14 hours. In such case, personal digital assistants); per diem and other allowable expenses (13) Such premiums for health or consumer exhibits and shows will also be reimbursable for the day of accident insurance and other benefits conducted in the United States upon arrival. However, no expenses will be for foreign national employees that the prior written approval by CCC. reimbursable for a rest period or for any employer is required by law to pay; Domestic travel expenses to such a non-work days (e.g., weekends, (14) Accident liability insurance show or exhibit are covered only if the holidays, personal leave, etc.) premiums for facilities used jointly with exhibit or show is: (1) A food or immediately following the date of third-party participants for MAP agricultural show with no less than 30% arrival. activities or for MAP-funded travel of of exhibitors selling food or agricultural (iv) Alternatively, in lieu of third-party participants; products, (2) an international show that reimbursing up to the business class rate (15) Market research, including targets buyers, distributors and the like in such circumstances, CCC will research to determine the types of from more than one foreign country and reimburse economy class airfare plus products that are desired in a market; no less than 15% of its visitors are from per diem and other allowable travel (16) Independent evaluations and countries other than the host country, expenses related to a rest period of up audits, if not otherwise required by and (3) an exhibit or show that the MAP to 24 hours, either en route or upon CCC, to ensure compliance with Participant has not participated in arrival at the destination. For a trip with program requirements; within the last three years using funds multiple destinations, each origin/ (17) Legal fees to obtain advice on the from a source other than the MAP. CCC destination combination will be host country’s labor laws; will compile a list of approved retail, considered separately when applying (18) Employment agency fees; trade and consumer exhibits and shows the 14 hour rule for eligibility of (19) STRE incurred outside of the held inside the United States for which reimbursement of business class travel United States, and STRE incurred in MAP reimbursement is available and or rest period expenses. A stopover is conjunction with an approved activity such list will be announced to MAP

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Participants via a MAP notice issued on United States or abroad designed to (17) Any arrangement that has the FAS’ Web site; improve market access by specifically effect of reducing the selling price of a (25) Domestic travel expenditures, as addressing temporary, permanent, or U.S. agricultural commodity; allowed under the U.S. Federal Travel impending technical barriers to trade (18) Goods, services and salaries of Regulations (41 CFR parts 301 through that prohibit or threaten U.S. exports of personnel provided by U.S. industry or 304), for seminars and educational agricultural commodities; and foreign third party; training conducted in the United States; (33) Membership fees in professional, (19) Membership fees in clubs and (26) Domestic travel expenditures, as industry-related organizations. social organizations; allowed under the U.S. Federal Travel (d) CCC will not reimburse any cost (20) Indemnity and fidelity bonds; Regulations (41 CFR parts 301 through of: (21) Fees for participating in U.S. 304), for one home office MAP (1) Forward year financial obligations, Government sponsored activities, other Participant employee, one MAP such as severance pay, attributable to than trade fairs and exhibits; Participant board member, or a state employment of foreign nationals; (22) Business cards that target a U.S. department of agriculture employee (2) Expenses, fines, settlements, domestic audience; paid by the MAP Participant, when such judgments or payments relating to legal (23) Seasonal greeting cards; individual accompanies foreign trade suits, challenges or disputes; (24) Office parking fees; missions or technical teams while (3) The design and production of (25) Subscriptions to publications that traveling in the United States where the packaging, labeling or origin are not of a technical, economic, or following conditions are met: identification, except as specifically marketing nature or that are not relevant (i) Such trade missions or technical allowed in this subpart; to the approved activities of the MAP team visits are identified in the MAP (4) Product development, product Participant; Participant’s UES; modification or product research; (26) U.S. office(s) administrative (ii) Such trade missions or technical (5) Product samples; expenses, including communication team visits have been approved by CCC; (6) Slotting fees or similar sales costs, except as noted in and expenditures; § 1485.17(c)(22) and except that usage (iii) The MAP-sponsored traveler (7) The purchase of, construction of, costs for communications devices submits a follow-up trip report to CCC or lease of space for permanent, non- incurred while on reimbursable that includes the following: mobile displays, i.e., displays that are international or domestic travel for (A) Purpose for the individual’s constructed to remain permanently in approved MAP brand or generic participation; the same location beyond one program promotion activities are reimbursable as (B) Any pre-arranged business year. However, CCC may, at its eligible travel expenditures as allowed meetings; discretion, reimburse the construction under the U.S. Federal Travel (C) Itinerary and/or agenda for the or purchase of permanent displays on a Regulations (41 CFR Parts 301 through trip; and case-by-case basis, if the Participant 304); (D) Feedback from sponsors and trade sought and received prior written (27) Any expenditure on an activity mission/technical team members on the approval from CCC of such construction that includes any derogatory reference success of the trip. or purchase; or comparison to other U.S. agricultural (27) Approved demonstration (8) Rental, lease or purchase of commodities; projects; warehouse space, except for storage (28) Payment of U.S. and foreign (28) Expenditures related to space for program-related material; employees’ or contractors’ share of copyright, trademark, or patent (9) Coupon redemption or price personal taxes, except where a foreign registration, including attorney fees; discounts of the MAP promoted country’s laws require the MAP (29) Rental or lease expenditures for commodity; Participant to pay such employees’ or storage space for program-related (10) Refundable deposits or advances; contractors’ share; materials; (11) Giveaways, awards, prizes, gifts (29) Any expenditure made for an (30) Business cards that target a and other similar promotional materials activity prior to CCC’s approval of that foreign audience; in excess of the limitation that CCC will activity; (31) Expenditures associated with determine. Such determination will be (30) Contributions to a contingency developing, updating, and servicing announced in writing via a MAP notice reserve or any similar provision made Web sites on the Internet that: Contain issued on FAS’ Web site; for events the occurrence of which a message related to exporting or (12) Alcoholic beverages that are not cannot be foretold with certainty as to international trade, include a an integral part of an approved time, intensity, or with an assurance of discernible ‘‘link’’ to the FAS/ promotional activity; their happening; and Washington homepage or an FAS (13) The purchase, lease (except for (31) Expenditures associated with a overseas homepage, and have been use in authorized travel status) or repair MAP Participant’s creation or review of specifically approved by the appropriate of motor vehicles; their fraud prevention program, FAS commodity division. Expenditures (14) Travel of applicants for contracting procedures, or brand related to Web sites or portions of Web employment interviews; program operational procedures. sites that are accessible only to an (15) Unused non-refundable airline (e) Special rules for approval of organization’s members are not tickets or associated penalty fees, except supergrades. reimbursable. Reimbursement claims for where travel was restricted by U.S. (1) With respect to individuals who Web sites that include any sort of Government action or advisory; are not U.S. citizens and who are hired ‘‘members only’’ sections must be (16) Independent evaluations or by MAP Participants either as prorated to exclude the costs associated audits, including evaluations or audits employees or contractors who are hired with those areas subject to restricted of the activities of a subcontractor, if to act as employees, ordinarily, CCC access; CCC determines that such a review is will not reimburse any portion of such (32) Expenditures not otherwise needed in order to confirm past or to individual’s compensation that exceeds prohibited from reimbursement that are ensure future program agreement or the compensation prescribed for the associated with activities held in the regulatory compliance; most comparable position in the FSN

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salary plan applicable to the country in terminated, except as otherwise Participant shall make such payment in which the employee or contractor permitted by CCC. U.S. dollars, unless otherwise approved works. However, a MAP Participant may (i) Except as otherwise provided in in advance by CCC. seek a higher level of reimbursement for this subpart, MAP-funded travel shall (g) MAP funds may be expended by a non-U.S. citizen employee or conform to U.S. Federal Travel MAP Participants only on legitimate, contractor who will be employed as a Regulations (41 CFR parts 301 through approved activities as set forth in the country director or regional director by 304) and MAP-funded air travel shall program agreement and approval letter. requesting that CCC approve that conform to the requirements of the Fly If a MAP Participant discovers that MAP employee or contractor as a supergrade. America Act (49 U.S.C. 40118). The funds have not been properly spent, it (2) To request approval of a MAP Participant shall notify the shall notify CCC and shall within 30 supergrade, the MAP Participant shall Attache´/Counselor in the destination days of its discovery repay CCC the provide CCC with a detailed description countries in writing in advance of any amount owed either by submitting a of both the duties and responsibilities of proposed travel. check payable to CCC or by offsetting its the position and the qualifications and (j) CCC may determine, at CCC’s next reimbursement claim. The MAP background of the employee or discretion, whether any cost not Participant shall make such payment in contractor concerned. The Participant expressly listed in § 1485.17 will be U.S. dollars, unless otherwise approved shall also justify why the comparable reimbursed. in advance by CCC. FSN salary level is insufficient. (h) The MAP Participant shall report § 1485.18 Reimbursement procedures. (3) Where a non-U.S. citizen any actions that may have a bearing on employee or contractor will be (a) Participants are required to use the propriety of any claims for employed as a country director, the CCC’s Internet-based UES system to reimbursement in writing to CCC. request reimbursement for eligible MAP MAP Participant may request approval § 1485.19 Advances. for a ‘‘Supergrade I’’ salary level, expenses. Claims for reimbursement shall contain the following information: (a) Policy. In general, CCC operates equivalent to a grade increase over the the MAP on a reimbursable basis. existing top grade of the FSN salary (1) Activity type—brand or generic; (2) Activity number; (b) Exception. A MAP Participant for plan. The supergrade and its step (3) Commodity aggregate code; generic promotion activities may increases are calculated as the (4) Country code; request an advance of MAP funds from percentage difference between the (5) Cost category; CCC, provided the MAP Participant second highest and the highest grade in (6) Amount to be reimbursed; meets the criteria for advance payments the FSN salary plan, with that (7) If applicable, any reduction in the set forth in the applicable parts of this percentage applied to each of the steps amount of reimbursement claimed to title (e.g., 7 CFR Parts 3015, 3016, and in the top grade. Where the non-U.S. offset CCC demand for refund of 3019). CCC will not approve any request citizen employee or contractor will be amounts previously reimbursed and for an advance submitted later than 3 employed as a regional director, with reference to the relevant compliance months after the end of a MAP responsibility for activities and/or report or written notice; and Participant’s program year. At any given offices in more than one country, the (8) If applicable, any amount time, total payments advanced shall not MAP Participant may request approval previously claimed that has not been exceed 40 percent of a MAP for a ‘‘Supergrade II’’ salary level, which reimbursed. Participant’s approved generic activity is calculated relative to a ‘‘Supergrade I’’ (b) All claims for reimbursement shall budget for the program year. CCC will in the same way the latter is calculated be submitted by the MAP Participant’s not advance funds to a MAP Participant relative to the highest grade in the FSN U.S. office to CCC. for brand promotion activities. When salary plan. (c) CCC will not reimburse a claim for approving a request for an advance, CCC (4) A U.S. citizen with dual less than $10,000, except that CCC will may require the MAP Participant to citizenship with another foreign country reimburse a final claim for a MAP carry adequate fidelity bond coverage or countries shall not be considered a Participant’s program year for a lesser when the absence of such coverage is non-U.S. citizen. amount. considered to create an unacceptable (f) For a brand promotion activity, (d) CCC will not reimburse claims risk to the interests of the . Whether an CCC will reimburse no more than 50 submitted later than 6 months after the ‘‘unacceptable risk’’ exists in a percent of the total eligible expenditures end of a MAP Participant’s program particular situation will depend on a made on that activity. year. number of factors, such as, for example, (g) CCC will reimburse for (e) If CCC overpays a reimbursement the Participant’s history of performance expenditures made after the conclusion claim, the MAP Participant shall repay in MAP; the Participant’s perceived of a MAP Participant’s program year CCC within 30 days of such financial stability and resources; and provided: overpayment the amount of the any other factors presented in the (1) The activity was approved by CCC overpayment either by submitting a particular situation that may reflect on prior to the end of the program year; check payable to CCC or by offsetting its the Participant’s responsibility or the (2) The activity was completed within next reimbursement claim. The MAP riskiness of its activities. 30 calendar days following the end of Participant shall make such payment in (c) Interest. A MAP Participant shall the program year; and U.S. dollars, unless otherwise approved deposit and maintain in an insured bank (3) All expenditures were made for in advance by CCC. account in the United States all funds the activity within 6 months following (f) If a MAP Participant receives a advanced by CCC. The account shall be the end of the program year. reimbursement or offsets an advanced interest-bearing, unless the exceptions (h) A MAP Participant shall not use payment which is later disallowed, the in the applicable parts of this title apply MAP funds for any activity or any MAP Participant shall repay CCC within (e.g., 7 CFR Parts 3015, 3016 and 3019). expenses incurred by the MAP 30 days of such disallowance the Interest earned by the MAP Participant Participant prior to the date of the amount disallowed either by submitting on funds advanced by CCC is not program agreement or after the date the a check payable to CCC or by offsetting program income. The MAP Participant program agreement is suspended or its next reimbursement claim. The MAP shall remit any interest earned on the

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advanced funds to the appropriate changes, and all records pertaining to electronically submit a trip report. The entity as set forth in the applicable parts contractors. report must include the name(s) of the of this title. (d) A MAP Participant shall maintain traveler(s), purpose of travel, itinerary, (d) Refunds due CCC. A MAP its records of expenditures and names and affiliations of contacts, and Participant shall fully expend all contributions in a manner that allows it a brief summary of findings, advances on approved generic to provide information by activity plan, conclusions, recommendations, and promotion activities within 90 calendar country, activity number, and cost specific accomplishments. days after the date of disbursement by category. Such records shall include: (c) Research reports. Not later than 6 CCC. By the end of the 90 calendar days, (1) Receipts for all STRE (actual months after the end of its program year, the MAP Participant must submit vendor invoices or restaurant checks, a MAP Participant shall submit a report reimbursement claims to offset the rather than credit card receipts); on any research conducted pursuant to advance and submit a check made (2) Original receipts for any other the approved MAP program. payable to CCC for any unexpended program-related expenditure in excess (d) Evaluation reports. Not later than balance. The MAP Participant shall of $75.00. CCC may, from time to time, 6 months after the end of its program make such payment in U.S. dollars, determine a different minimum level year, a MAP Participant shall submit a unless otherwise approved in advance and announce that minimum level in report on any evaluations conducted in by CCC. writing to all MAP Participants via a accordance with the approved MAP MAP notice issued on the FAS Web site; program. § 1485.20 Employment practices. (3) The exchange rate used to (e) Where CCC is designated the (a) A MAP Participant shall enter into calculate the dollar equivalent of cognizant agency for audit, CCC may written contracts with all overseas expenditures made in a foreign currency require the MAP Participant to submit employees who are paid in whole or in and the basis for such calculation; to CCC an annual OMB Circular A–133 (4) Copies of reimbursement claims; part with MAP funds and shall ensure audit in accordance with 7 CFR Part (5) An itemized list of claims charged that all terms, conditions, and related 3052. If CCC requires an additional to each of the MAP Participant’s CCC formalities of such contracts conform to audit with respect to a particular governing local law. resources accounts; (6) Documentation with agreement, the MAP Participant shall (b) A MAP Participant shall in its accompanying English translation arrange for such audit and shall submit overseas offices conform its office hours, supporting each reimbursement claim, to CCC, in the manner to be specified by work week, and holidays to local law including original evidence to support CCC, such audit of the agreement. and to the custom generally observed by the financial transactions such as (f) CCC may require the submission of U.S. commercial entities in the local canceled checks, receipted paid bills, additional reports. business community. contracts or purchase orders, per diem (g) A MAP Participant’s program (c) A MAP Participant may pay calculations, travel vouchers, and credit agreement and/or approval letter shall salaries or fees in any currency (U.S. or memos; and specify to whom the Participant shall foreign). Participants should consult (7) Documentation supporting submit the reports required in this local laws regarding currency contributions. These must include the section. restrictions. dates, purpose, and location of the § 1485.23 Evaluation. § 1485.21 Financial management. activity for which the cash or in-kind items were claimed as a contribution; (a) Policy. (1) The Government (a) A MAP Participant shall who conducted the activity; the Performance and Results Act (GPRA) of implement and maintain a financial participating groups or individuals; and, 1993 (5 U.S.C. 306; 31 U.S.C. 1105, management system that conforms to the method of computing the claimed 1115–1119, 3515, 9703–9704) requires generally accepted accounting contributions. MAP Participants must performance measurement of Federal principles. A MAP Participant’s retain and make available for programs, including the MAP. financial management system shall compliance review documentation Evaluation of the MAP’s effectiveness comply with the standards set forth in related to claimed contributions. will depend on a clear statement by the applicable parts of this title (e.g., 7 (e) Upon request, a MAP Participant Participants of goals to be met within a CFR Parts 3015, 3016 and 3019). shall provide to CCC originals of specified time, schedule of measurable (b) A MAP Participant shall institute documents supporting reimbursement milestones for gauging success, plan for internal controls and provide written claims. achievement, and assessment of results guidance to commercial entities of activities at regular intervals. The participating in its activities to ensure § 1485.22 Reports. overall goal of the MAP and of their compliance with these regulations. (a)End-of-Year Contribution Report. individual Participants’ programming is (c) A MAP Participant shall retain all Not later than 6 months after the end of to achieve or maintain sales that would records concerning a MAP program its program year, a MAP Participant not have occurred in the absence of transaction for a period of 5 years after shall submit two copies of a report that MAP funding. A MAP Participant that completion of the program transaction identifies, by cost category and in U.S. can demonstrate such sales, taking into and permit CCC to have full and dollar equivalent, contributions made account extenuating factors beyond the complete access, for such 5-year period, by the Participant, the U.S. industry, Participant’s control, will have met the to such records. These records shall and the States during that program year. overall objective of the GPRA and the include all documents related to A suggested format of a contribution need for evaluation. employment of any employees whose report is available from FAS. Foreign (2) Evaluation is an integral element salaries are reimbursed in whole or in third party contributions are not of program planning and part with MAP funds, whether such included in the end-of-year contribution implementation, providing the basis for employees are based in the United report. the strategic plan. The evaluation results States or overseas, such as employment (b)Trip reports. Not later than 45 days guide the development and scope of a applications, contracts, position after completion of travel (other than MAP Participant’s program, descriptions, leave records, salary local travel), a MAP Participant shall contributing to program accountability,

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and providing evidence of program will announce to all MAP Participants next reimbursement claim. The MAP effectiveness. in writing via a MAP notice issued on Participant shall make such payment in (b) All MAP Participants must report the FAS Web site the detailed U.S. dollars, unless otherwise approved annual results against their target requirements for completing and in advance by CCC. If, however, a MAP market and/or regional constraint/ submitting program success stories. Participant notifies CCC within 30 days opportunity performance measures. of the date of the written notice that the These are outcome results usually based § 1485.24 Compliance reviews and notices. Participant intends to file an appeal on multiple activities and should pursuant to § 1485.24(e), the amount demonstrate progress made in the (a) USDA staff may conduct owed to CCC by the MAP Participant is compliance reviews of MAP market. This report shall be completed not due until the appeal procedures are Participants’ activities under the MAP and submitted to CCC no later than 6 concluded and CCC has made a final program. MAP Participants shall months following the end of the determination as to the amount owed. Participant’s program year. cooperate fully with relevant USDA staff (d) The fact that a compliance review (c) MAP Participants conducting a conducting compliance reviews and has been conducted by USDA staff does branded program must also complete a shall comply with all requests from not signify that a MAP Participant is in brand promotion evaluation. A brand USDA staff to facilitate the conduct of compliance with its program agreement, such reviews. promotion evaluation is a review of the approval letter and/or applicable laws (b) Upon conclusion of the U.S. and foreign commercial entities’ and regulations. compliance review, USDA staff will export sales to determine whether the (e) Appeals. provide either a written compliance activity achieved the goals specified in (1) A MAP Participant may, within 60 report or a letter to the MAP Participant. the approved MAP program. This days of the date of the compliance USDA staff will issue a compliance evaluation shall be completed and report or written notice from CCC, report if it appears that CCC may be submitted to CCC no later than 6 submit a written response to CCC entitled to recover funds from that months following the end of the appealing the report or notice. CCC, at Participant and/or it appears that the Participant’s program year. its discretion, may extend the period for Participant is not complying with any of (d) When appropriate or required by response. the terms or conditions of the program CCC, a MAP Participant shall complete (2) After review of the Participant’s agreement, approval letter, or the a program evaluation. A program response, CCC shall determine whether applicable laws and regulations. The evaluation is a review of the MAP the Participant owes any funds to CCC compliance report will explain the basis Participant’s entire program, or an and will inform the Participant in for any recovery of funds from the appropriate portion of the program as writing of the basis for the Participant. Within 30 days of the date agreed to by the MAP Participant and determination. CCC will initiate action of the compliance report, the MAP CCC, to determine the effectiveness of to collect such amount by providing the Participant shall repay CCC the amount the MAP Participant’s strategy in Participant a written demand for owed either by submitting a check meeting specified goals. Actual scope payment of the debt pursuant to Debt payable to CCC or by offsetting its next and timing of the program evaluation Settlement Policies and Procedures, 7 reimbursement claim. The MAP shall be determined by the MAP CFR part 1403. Participant shall make such payment in Participant and CCC and specified in (3) Within 30 days of the date of the U.S. dollars, unless otherwise approved the approval letter. A MAP Participant determination, the Participant may in advance by CCC. If, however, a MAP shall submit, via a cover letter to CCC, request in writing that CCC reconsider Participant notifies CCC within 30 days an executive summary that assesses the the determination and shall submit in of the date of the compliance report that program evaluation’s findings and writing the basis for such the Participant intends to file an appeal recommendations and proposed reconsideration. The Participant may pursuant to § 1485.24(e), the amount changes in program strategy or design as also request a hearing. owed to CCC by the MAP Participant is a result of the evaluation. In addition to (4) If the Participant requests a not due until the appeal procedures are the requirements set forth in the hearing, CCC will set a date and time for concluded and CCC has made a final applicable parts of this title (e.g., 7 CFR the hearing. The hearing will be an determination as to the amount owed. In Parts 3015, 3016, and 3019), a program informal proceeding. A transcript will the absence of any finding of funds due evaluation shall contain: not ordinarily be prepared unless the (1) The name of the party conducting to CCC or other non-compliance, CCC Participant bears the cost of a transcript; the evaluation; will issue a letter to the MAP however, CCC may in its discretion have (2) The scope of the evaluation; Participant. If, as a result of a a transcript prepared at CCC’s expense. (3) A concise statement of the market compliance review, CCC determines (5) CCC will base its final constraint(s)/opportunity(ies) and the that further review is needed in order to determination upon information goals specified in the approved strategic ensure compliance with the contained in the administrative record. plan; requirements of MAP, CCC may require The Participant must exhaust all (4) A description of the evaluation the Participant to contract for an administrative remedies contained in methodology; independent audit. this section before pursuing judicial (5) A description of export sales (c) In addition, CCC may notify a review of a determination by CCC. achieved; MAP Participant in writing at any time (6) A summary of the findings, if CCC determines that CCC may be § 1485.25 Failure to make required including an analysis of the strengths entitled to recover funds from the contribution. and weaknesses of the program(s); and Participant. CCC will explain the basis A MAP Participant’s required (7) Recommendations for future for any recovery of funds from the contribution will be specified in the programs. Participant in the written notice. The approval letter. If the MAP Participant’s (e) On an annual basis, or more often MAP Participant shall within 30 days of required contribution is specified as a when appropriate or required by CCC, a the date of the notice repay CCC the dollar amount and the MAP Participant MAP Participant shall complete and amount owed either by submitting a does not make the required submit program success stories. CCC check payable to CCC or by offsetting its contribution, the MAP Participant shall

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pay to CCC in dollars the difference an export sale. A MAP Participant may, responsibility with respect to MAP between the amount actually however, collect check-off funds and Participant contracts with third parties. contributed and the amount specified in membership fees that are required for (b) A MAP Participant shall comply the approval letter. If the MAP membership in the MAP Participant. with the procurement standards set Participant’s required contribution is For the purposes of this paragraph, forth below and in the applicable parts specified as a percentage of the total ‘‘affiliate’’ means any partnership, of this title when procuring goods and amount reimbursed by CCC, the MAP association, company, corporation, services and when engaging in Participant may either return to CCC the trust, or any other such party in which construction to implement program amount of funds reimbursed by CCC to the Participant has an investment other agreements (e.g., 7 CFR Parts 3015, increase its actual contribution than in a mutual fund. 3016, and 3019). For purposes of this percentage to the required level or pay (c) A MAP Participant shall not limit subpart, the ‘‘small purchase threshold’’ to CCC in dollars the difference between participation in its MAP activities to referenced in 7 CFR part 3019 is the the amount actually contributed and the members of its organization. ‘‘simplified acquisition threshold’’ amount of funds necessary to increase Participants shall ensure that their established by 41 U.S.C. 134. its actual contribution percentage to the MAP-funded programs and activities are (c) Each MAP Participant shall required level. A MAP Participant shall open to all otherwise qualified establish contracting procedures for remit such payment within six months individuals and entities on an equal contracts that are funded, in whole or in after the end of its program year. The basis and without regard to any non- part, with MAP funds that are open, fair, MAP Participant shall make such merit factors. The MAP Participant shall and competitive. payment in U.S. dollars, unless publicize its program and make (d) Each MAP Participant shall submit otherwise approved in advance by CCC. participation possible for commercial to CCC, for CCC approval, written entities throughout the relevant contracting guidelines for contracts that § 1485.26 Submissions. commodity sector or, in the case of are funded, in whole or in part, with For all permissible methods of SRTGs, throughout the corresponding MAP funds. CCC will notify all new and delivery, submissions required by this region. This includes providing to such existing MAP Participants in writing in subpart shall be deemed submitted as of commercial entities, upon request, a each Participant’s annual approval letter the date received by CCC. copy of any document in its possession and through the FAS web site as to or control containing market applicable submission dates for and § 1485.27 Disclosure of program information developed and produced dates for approvals of contracting information. under the terms of its MAP agreement. guidelines. CCC’s approval of such (a) Documents submitted to CCC by The Participant may charge a fee not to contracting guidelines will remain in MAP Participants are subject to the exceed the costs for assembling, place until CCC retracts its approval in provisions of the Freedom of duplicating and distributing the writing, or until new guidelines are Information Act (FOIA), 5 U.S.C. 552, 7 materials. This paragraph does not approved that supersede them. Once CFR part 1, subpart A—Official Records, apply to U.S. agricultural cooperatives approved by CCC, these contracting and specifically 7 CFR 1.12, Handling when implementing their own brand guidelines shall govern all of a Information from a Private Business. program. Participant’s MAP-funded contracting (b) Any research conducted by a MAP (d) A MAP Participant shall select involving contracts with an annual Participant pursuant to a MAP program U.S. agricultural industry value of $35,000 or more. CCC may agreement and/or approval letter shall representatives to participate in generic determine a different minimum value be subject to the provisions relating to MAP activities such as trade teams, and announce that minimum value in intangible property in the applicable sales teams, and trade fairs based on writing to all MAP Participants via a parts of this title (e.g., 7 CFR Parts 3015, criteria that ensure participation on an MAP notice issued on the FAS Web site. 3016, and 3019). equitable basis by a broad cross section The guidelines shall indicate the method for evaluating proposals § 1485.28 Ethical conduct. of the U.S. industry. If requested by CCC, a MAP Participant shall submit received for all contract competitions, (a) A MAP Participant shall conduct such selection criteria to CCC for the method for monitoring and its business in accordance with the laws approval. evaluating performance under contracts, and regulations of the country in which (e) All MAP Participants should and the method for initiating corrective an activity is carried out and in endeavor to ensure fair and accurate action for unsatisfactory performance accordance with applicable U.S. fact-based advertising. Deceptive or under contracts. The MAP Participant Federal, state and local laws, and misleading promotions may result in may modify and resubmit these regulations. A MAP Participant shall cancellation or termination of a guidelines for re-approval at any time. conduct its business in the United Participant’s MAP agreement and the In addition to the requirements set forth States in accordance with applicable recovery of CCC funds related to such in the applicable parts of this title (e.g., Federal, state and local laws and promotions from the Participant. 7 CFR Parts 3015, 306, 3019), these regulations. All MAP Participants must (f) The MAP Participant must report guidelines shall include, at a minimum, comply with the regulations in the any actions or circumstances that may the following: applicable parts of this title (e.g., 7 CFR have a bearing on the propriety of its (1) Procedures for developing and Parts 1485, 3015, 3016, 3018, 3021, MAP program to the appropriate publicizing requests for proposals, 3019, and 3052). Attache´/Counselor, and its U.S. office invitations for bids, and similar (b) Except for a U.S. agricultural shall report such actions or documents that solicit third party offers cooperative or a U.S. for-profit entity, circumstances in writing to CCC. to provide goods or services. neither a MAP Participant nor its Solicitations for professional and affiliates shall make export sales of U.S. § 1485.29 Contracting procedures. technical services shall be based on agricultural commodities and products (a) Neither CCC nor any other agency clear and accurate descriptions of and covered under the terms of the of the U.S. Government nor any official requirements related to the services to applicable MAP agreement. Nor shall or employee of CCC, FAS, USDA, or the be procured. Such procedures must such entities charge a fee for facilitating U.S. Government has any obligation or include a conflict-of-interest provision

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that states that no employee, officer, However, contracts for in-country or information giving rise to a board member, or agent thereof of the representation are not required to be re- reasonable suspicion of MAP Participant will participate in the competed after the initial reward. misrepresentation or fraud that could review, selection, award or Instead, the performance of in-country give rise to a claim by CCC, shall report administration of a contract if a real or representation must be evaluated and such allegation or information in apparent conflict of interest would arise. documented by the MAP Participant writing to such USDA personnel as Such a conflict would arise when an annually to ensure that the terms of the specified in the Participant’s MAP employee, official, board member, agent, contract are being met in a satisfactory program agreement and/or approval or the employee’s, officer’s, board manner; and letter. The MAP Participant shall member’s, agent’s family, partners, or an (6) Requirements for written contracts cooperate fully in any USDA organization that employs or is about to with each provider of goods, services, or investigation of such allegation or employ any of the parties indicated construction work. Such contracts shall occurrence of misrepresentation or herein, has a financial or other interest require such providers to maintain fraud and shall comply with any in the firm selected for an award. adequate records to account for funds directives given by CCC or USDA to the Procedures shall provide that officers, provided to them by the MAP MAP Participant for the prompt employees, board members, and agents Participant. investigation of such allegation or thereof shall neither solicit nor accept (e) A MAP Participant may undertake occurrence. gratuities, favors, or anything of MAP promotional activities directly or (b) MAP Participants with brand monetary value from contractors or through a domestic or foreign third programs. subcontractors. Procedures shall also party. However, the MAP Participant (1) The MAP Participant may charge provide for disciplinary actions to be shall remain responsible and a fee to brand participants to cover the applied for violations of such standards accountable to CCC for all MAP cost of the fraud prevention program. by officers, employees, board members promotional activities and related (2) The MAP Participant shall repay or agents thereof; expenditures undertaken by such third to CCC funds paid to a brand participant (2) Procedures for reviewing party and shall be responsible for through the MAP Participant on claims proposals, bids, or other offers to reimbursing CCC for any funds that CCC that the MAP Participant or CCC provide goods and services. Separate determines should be refunded to CCC subsequently determines are procedures shall be developed for in relation to such third-party’s unauthorized or otherwise non- various situations, including, but not promotional activities and expenditures. reimbursable expenses within 30 days limited to: solicitations for highly of the MAP Participant’s determination technical services; solicitations for § 1485.30 Property standards. or CCC’s disallowance. The MAP services that are not common in a The MAP Participant shall insure all Participant shall repay CCC by specific market; solicitations that yield MAP-funded real property and submitting a check to CCC or by receipt of three or more bids; equipment acquired in furtherance of offsetting the MAP Participant’s next solicitations that yield receipt of fewer program activities and safeguard such reimbursement claim. The MAP than three bids; against theft, damage and unauthorized Participant shall make such payment in (3) Requirements to conduct all use. The Participant shall promptly U.S. dollars, unless otherwise approved contracting in an openly competitive report any loss, theft, or damage of in advance by CCC. A MAP Participant manner. Individuals who develop or property to the insurance company. operating a brand program in strict draft specifications, requirements, accordance with an approved fraud statements of work, invitations for bids, § 1485.31 Anti-fraud requirements. prevention program, however, will not and/or requests for proposals for (a) All MAP Participants. be liable to reimburse CCC for MAP procurement of any goods or services, (1) All MAP Participants annually funds paid on such claims if the claims and such individuals’ families or shall submit to CCC for approval a were based on misrepresentations or partners, or an organization that detailed fraud prevention program. CCC fraud of the brand participant, its employs or is about to employ any of will notify all new and existing MAP employees or agents, unless CCC the aforementioned, shall be excluded Participants in writing in each determines that the MAP Participant from competition for such procurement. Participant’s annual approval letter and was grossly negligent in the operation of MAP Participants’ written contracting through the FAS web site as to the brand program regarding such guidelines may detail special situations applicable submission dates for and claims. CCC shall communicate any where the prohibitions in this dates for approvals of fraud prevention such determination to the MAP subparagraph do not apply, such as in programs. MAP Participants should Participant in writing. situations involving highly specialized review their fraud prevention programs technical services or situations where annually. The fraud prevention program § 1485.32 Program income. the services are not commonly offered shall, at a minimum, include an annual Any revenue or refunds generated in a specific market; review of physical controls and from an activity, e.g., participation fees, (4) Requirements to perform and weaknesses, a standard process for proceeds of sales, refunds of value document in the procurement files some investigating and remediation of added taxes (VAT), the expenditures for form of price or cost analysis, such as suspected fraud cases, and training in which have been wholly or partially a comparison of price quotations to risk management and fraud detection for reimbursed with MAP funds, shall be market prices or other price indicia, to all current and future employees. The used by the MAP Participant in determine the reasonableness of the MAP Participant shall not conduct or furtherance of its approved MAP offered prices in connection with every permit any MAP promotion activities to activities in the program period during procurement action that is governed by occur unless and until CCC has which the MAP funds are available for the contracting guidelines; communicated in writing approval of obligation by the MAP Participant. The (5) Requirements to conduct an the MAP Participant’s fraud prevention use of such revenue or refunds shall be appropriate form of competition every 3 program. governed by 7 CFR Part 1485. Interest years on all multi-year contracts that are (2) The MAP Participant, within five earned on funds advanced by CCC is not governed by the contracting guidelines. business days of receiving an allegation program income.

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§ 1485.33 Amendment. MAP Participant if program income or § 1485.36 Paperwork reduction A program agreement may be CCC-provided funds are lost due to an requirements. amended in writing with the consent of action or omission of the MAP The paperwork and recordkeeping CCC and the MAP Participant. Participant. requirements imposed by this subpart § 1485.34 Noncompliance with an § 1485.35 Suspension, termination, and have been approved by OMB under the agreement. closeout of agreements. Paperwork Reduction Act of 1980. OMB If a MAP Participant fails to comply has assigned control number 0551–0026 with any term in its program agreement A program agreement may be for this information collection. suspended or terminated in accordance or approval letter, CCC may take one or Dated: May 4, 2012. more of the enforcement actions set with the suspension and termination forth in the applicable parts of this title procedures in the applicable parts of Suzanne E Heinen, (e.g., 7 CFR Parts 3015, 3016, and 3019) this title (e.g., 7 CFR Parts 3015, 3016, Administrator, Foreign Agricultural Service, and, if, appropriate, initiate a claim 3019). If an agreement is terminated, the and Vice President, Commodity Credit against the MAP Participant, following applicable parts of this title will apply Corporation. the procedures set forth in this subpart. to the closeout of the agreement (e.g., 7 [FR Doc. 2012–11601 Filed 5–16–12; 8:45 am] CCC may also initiate a claim against a CFR Parts 3015, 3016, 3019). BILLING CODE 3410–10–P

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Part III

Department of the Interior

Fish and Wildlife Service 50 CFR Part 20 Migratory Bird Hunting; Supplemental Proposals for Migratory Game Bird Hunting Regulations for the 2012–13 Hunting Season; Notice of Meetings; Proposed Rule

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DEPARTMENT OF THE INTERIOR We will not accept emailed or faxed seasons not previously discussed at the comments. We will post all comments early-season meetings. In addition, the Fish and Wildlife Service on http://www.regulations.gov. This Committee will develop generally means that we will post any recommendations for the 2013 spring/ 50 CFR Part 20 personal information you provide us summer migratory bird subsistence [Docket No. FWS–R9–MB–2012–0005; (see the Public Comments section below season in Alaska. FF09M21200–123–FXMB1231099BPP0L2] for more information). In accordance with Departmental Meetings: The Service Migratory Bird policy, these meetings are open to RIN 1018–AX97 Regulations Committee will meet in public observation. You may submit Migratory Bird Hunting; Supplemental room 200 of the U.S. Fish and Wildlife written comments to the Service on the Proposals for Migratory Game Bird Service’s Arlington Square Building, matters discussed. Hunting Regulations for the 2012–13 4401 N. Fairfax Dr., Arlington, VA. Announcement of Flyway Council Hunting Season; Notice of Meetings FOR FURTHER INFORMATION CONTACT: Ron Meetings W. Kokel, U.S. Fish and Wildlife AGENCY: Fish and Wildlife Service, Service, Department of the Interior, MS Service representatives will be Interior. MBSP–4107–ARLSQ, 1849 C Street present at the individual meetings of the ACTION: Proposed rule; supplemental. NW., Washington, DC 20240; (703) 358– four Flyway Councils this July. 1714. Although agendas are not yet available, SUMMARY: We, the U.S. Fish and these meetings usually commence at Wildlife Service (Service), proposed in SUPPLEMENTARY INFORMATION: 8 a.m. on the days indicated. an earlier document to establish annual Regulations Schedule for 2012 Atlantic Flyway Council: July 19–20, hunting regulations for certain Kingsmill Resort, Williamsburg, VA. migratory game birds for the 2012–13 On April 17, 2012, we published in Mississippi Flyway Council: July 22– hunting season. This supplement to the the Federal Register (77 FR 23094) a 23, Stoney Creek Inn, Peoria, IL. proposed rule provides the regulatory proposal to amend 50 CFR part 20. The Central Flyway Council: July 18–19, schedule, announces the Service proposal provided a background and Econolodge Canmore, Canmore, Alberta, Migratory Bird Regulations Committee overview of the migratory bird hunting Canada. and Flyway Council meetings, and regulations process, and addressed the Pacific Flyway Council: July 13, provides Flyway Council establishment of seasons, limits, and Oxford Suites, Spokane, WA. recommendations resulting from their other regulations for hunting migratory Review of Public Comments March meetings. game birds under §§ 20.101 through DATES: 20.107, 20.109, and 20.110 of subpart K. This supplemental rulemaking Comments: You must submit This document is the second in a series describes Flyway Council recommended comments on the proposed regulatory of proposed, supplemental, and final changes based on the preliminary alternatives for the 2012–13 duck rules for migratory game bird hunting proposals published in the April 17, hunting seasons on or before June 22, regulations. We will publish proposed 2012, Federal Register. We have 2012. Following subsequent Federal early-season frameworks in early July included only those recommendations Register notices, you will be given an and late-season frameworks in early requiring either new proposals or opportunity to submit comments for August. We will publish final regulatory substantial modification of the proposed early-season frameworks by frameworks for early seasons on or preliminary proposals and do not July 27, 2012, and for proposed late- about August 16, 2012, and for late include recommendations that simply season frameworks and subsistence seasons on or about September 14, 2012. support or oppose preliminary migratory bird seasons in Alaska by Service Migratory Bird Regulations proposals and provide no recommended August 31, 2012. Committee Meetings alternatives. Our responses to some Meetings: The Service Migratory Bird Flyway Council recommendations, but Regulations Committee will meet to The Service Migratory Bird not others, are merely a clarification aid consider and develop proposed Regulations Committee will meet June to the reader on the overall regulatory regulations for early-season migratory 20–21, 2012, to review information on process, not a definitive response to the bird hunting on June 20 and 21, 2012, the current status of migratory shore and issue. We will publish responses to all and for late-season migratory bird upland game birds and develop 2012–13 proposals and written comments when hunting and the 2013 spring/summer migratory game bird regulations we develop final frameworks. migratory bird subsistence seasons in recommendations for these species, plus We seek additional information and Alaska on July 25 and 26, 2012. All regulations for migratory game birds in comments on the recommendations in meetings will commence at Alaska, Puerto Rico, and the Virgin this supplemental proposed rule. New approximately 8:30 a.m. Islands. The Committee will also proposals and modifications to ADDRESSES: Comments: You may submit develop regulations recommendations previously described proposals are comments on the proposals by one of for September waterfowl seasons in discussed below. Wherever possible, the following methods: designated States, special sea duck they are discussed under headings • Federal eRulemaking Portal: http:// seasons in the Atlantic Flyway, and corresponding to the numbered items www.regulations.gov. Follow the extended falconry seasons. In addition, identified in the April 17 proposed rule. instructions for submitting comments the Committee will review and discuss Only those categories requiring your on Docket No. FWS–R9–MB–2012– preliminary information on the status of attention or for which we received 0005. waterfowl. Flyway Council recommendations are • U.S. mail or hand-delivery: Public At the July 25–26, 2012, meetings, the discussed below. Comments Processing, Attn: FWS–R9– Committee will review information on MB–2012–0005; Division of Policy and the current status of waterfowl and 1. Ducks Directives Management; U.S. Fish and develop 2012–13 migratory game bird Duck harvest management categories Wildlife Service; 4401 N. Fairfax Drive, regulations recommendations for regular are: (A) General Harvest Strategy; (B) MS 2042–PDM; Arlington, VA 22203. waterfowl seasons and other species and Regulatory Alternatives, including

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specification of framework dates, season and provided a brief summary of the greater sandhill crane hunting in length, and bag limits; (C) Zones and anticipated impacts of the selected Arizona and the establishment of a new Split Seasons; and (D) Special Seasons/ alternative with regard to the guidelines. RMP sandhill crane hunt area in Idaho. Species Management. The EA and finding of no significant 16. Mourning Doves impact (FONSI) on the revised A. General Harvest Strategy guidelines is available by either writing Council Recommendations: The Council Recommendations: The to the address indicated under FOR Atlantic and Mississippi Flyway Atlantic Flyway Council recommended FURTHER INFORMATION CONTACT in the Councils recommended use of the that the Eastern Mallard Adaptive preamble of this proposed rule or by ‘‘moderate’’ season framework for States Harvest Management (AHM) framework viewing on our Web site at http:// within the Eastern Management Unit be revised on an interim basis for the www.fws.gov/migratorybirds, or at population of mourning doves resulting 2012 and subsequent seasons by http://www.regulations.gov. in a 70-day season and 15-bird daily bag adopting the model set recently As part of the implementation of these limit. The daily bag limit could be proposed by the Service, and that model new guidelines, we stated last year that composed of mourning doves and weights be those derived from a those States that were capable of white-winged doves, singly or in retrospective analysis of breeding implementing these new guidelines combination. population changes from 2002–11. immediately were allowed to do so. The Mississippi and Central Flyway The Mississippi Flyway Council However, for those States not able to Councils recommend the use of the recommended that regulations changes implement changes last year, we were standard (or ‘‘moderate’’) season be restricted to one step per year, both committed to extending the current package of a 15-bird daily bag limit and when restricting as well as liberalizing open season into 2012. Thus, we asked a 70-day season for the 2012–13 hunting regulations. then, and again in the April 17 proposed mourning dove season in the States Service Response: As we stated in the rule, that States provide us with any within the Central Management Unit. April 17 Federal Register, the final changes to their zone and split season They also recommended that the AHM protocol for the 2012–13 season configuration by May 1, 2012, for use Special White-winged Dove Area be will be detailed in the early-season during the 2012–13 season. In an effort expanded to Interstate Highway 37 in proposed rule, which will be published to provide additional accommodation to the 2013–14 season. in mid-July. Flyways’ and States’ requests, we will The Pacific Flyway Council recommended use of the ‘‘moderate’’ B. Regulatory Alternatives allow States to submit their proposed zone/split changes and descriptions by season framework for States in the Council Recommendations: The June 15, 2012; and by June 15 in future Western Management Unit (WMU) Mississippi and Central Flyway years when zones/split season options population of doves, which represents Councils recommended that regulatory can be changed. no change from last year’s frameworks. alternatives for duck hunting seasons Public Comments remain the same as those used in 2011– 4. Canada Geese 12. The Department of the Interior’s Service Response: As we stated in the A. Special Seasons policy is, whenever practicable, to April 17 Federal Register, the final Council Recommendations: The afford the public an opportunity to regulatory alternatives for the 2012–13 Pacific Flyway Council recommended participate in the rulemaking process. season will be detailed in the early- increasing the daily bag limit in the Accordingly, we invite interested season proposed rule, which will be Pacific Flyway portion of Wyoming persons to submit written comments, published in mid-July. from two geese to three geese, and suggestions, or recommendations increasing the possession limit from regarding the proposed regulations. C. Zones and Split Seasons four to six birds during the special Before promulgation of final migratory Council Recommendations: The September season. game bird hunting regulations, we will Atlantic and Mississippi Flyway take into consideration all comments we B. Regular Seasons Councils recommended that the Service receive. Such comments, and any allow States to submit their proposed Council Recommendations: The additional information we receive, may zone/split changes as follows: States Mississippi Flyway Council lead to final regulations that differ from that will use their zones for seasons that recommended that the framework these proposals. open before the Saturday nearest opening date for all species of geese for You may submit your comments and September 24 should submit their zone the regular goose seasons in Michigan materials concerning this proposed rule descriptions by June 1, 2012. States that and Wisconsin be September 16, 2012. by one of the methods listed in the will not use their zones until after the ADDRESSES section. We will not accept 9. Sandhill Cranes Saturday nearest September 24 should comments sent by email or fax or to an submit their zone descriptions by July 1, Council Recommendations: The address not listed in the ADDRESSES 2012; and by July 1 in future years when Central and Pacific Flyway Councils section. Finally, we will not consider zones/split season options can be recommend using the 2012 Rocky hand-delivered comments that we do changed. Mountain Population (RMP) sandhill not receive, or mailed comments that Service Response: As we discussed in crane harvest allocation of 1,270 birds are not postmarked, by the date the April 17 Federal Register, last year as proposed in the allocation formula specified in the DATES section. in an August 26, 2011, Federal Register using the 3-year running average for We will post all comments in their (75 FR 53536), we finalized new 2009–11. The Councils also entirety—including your personal guidelines for duck zones and split recommended the establishment of a identifying information—on http:// seasons for use by States in setting their new hunting area for RMP greater www.regulations.gov. Before including seasons for the 2011–15 hunting sandhill crane hunting in Colorado. The your address, phone number, email seasons. We also prepared an Pacific Flyway Council also address, or other personal identifying environmental assessment (EA) on the recommended the establishment of the information in your comment, you new zone and split season guidelines expansion of the hunting areas for RMP should be aware that your entire

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comment—including your personal analysis estimated consumer surplus for where these approaches are relevant, identifying information—may be made three alternatives for duck hunting feasible, and consistent with regulatory publicly available at any time. While (estimates for other species are not objectives. E.O. 13563 emphasizes you can ask us in your comment to quantified due to lack of data). The further that regulations must be based withhold your personal identifying alternatives are (1) issue restrictive on the best available science and that information from public review, we regulations allowing fewer days than the rulemaking process must allow for cannot guarantee that we will be able to those issued during the 2007–08 season, public participation and an open do so. (2) Issue moderate regulations allowing exchange of ideas. We have developed Comments and materials we receive, more days than those in alternative 1, this rule in a manner consistent with as well as supporting documentation we and (3) Issue liberal regulations these requirements. used in preparing this proposed rule, identical to the regulations in the 2007– Other Required Determinations will be available for public inspection 08 season. For the 2008–09 season, we on http://www.regulations.gov, or by chose alternative 3, with an estimated Based on our most current data, we appointment, during normal business consumer surplus across all flyways of are affirming our required hours, at the U.S. Fish and Wildlife $205–$270 million. We also chose determinations made in the proposed Service, Division of Migratory Bird alternative 3 for the 2009–10, the 2010– rule; for descriptions of our actions to Management, Room 4107, 4501 North 11, and the 2011–12 seasons. At this ensure compliance with the following Fairfax Drive, Arlington, VA 22203. time, we are proposing no changes to statutes and Executive orders, see our For each series of proposed the season frameworks for the 2012–13 April 17, 2012, proposed rule (77 FR rulemakings, we will establish specific season, and as such, we will again 23094): comment periods. We will consider, but consider these three alternatives. • National Environmental Policy Act; possibly may not respond in detail to, However, final frameworks will be • Endangered Species Act; each comment. As in the past, we will dependent on population status • Regulatory Flexibility Act; summarize all comments we receive information available later this year. For • Small Business Regulatory during the comment period and respond these reasons, we have not conducted a Enforcement Fairness Act; to them after the closing date in any new economic analysis, but the 2008–09 • Paperwork Reduction Act; final rules. analysis is part of the record for this rule • Unfunded Mandates Reform Act; and is available at http://www.fws.gov/ Regulatory Planning and Review • Executive Orders 12630, 12988, migratorybirds/ 13175, 13132, and 13211. (Executive Orders 12866 and 13563) NewReportsPublications/SpecialTopics/ Executive Order 12866 provides that SpecialTopics.html#HuntingRegs or at List of Subjects in 50 CFR Part 20 the Office of Information and Regulatory http://www.regulations.gov at Docket Exports, Hunting, Imports, Reporting Affairs (OIRA) will review all significant No. FWS–R9–MB–2012–0005. and recordkeeping requirements, rules. The Office of Information and Executive Order 13563 reaffirms the Transportation, Wildlife. Regulatory Affairs has determined that principles of E.O. 12866 while calling this rule is significant because it will for improvements in the nation’s Authority: The rules that eventually will have an annual effect of $100 million or regulatory system to promote be promulgated for the 2012–13 hunting season are authorized under 16 U.S.C. 703– more on the economy. predictability, to reduce uncertainty, 711, 16 U.S.C. 712, and 16 U.S.C. 742 a–j. An economic analysis was prepared and to use the best, most innovative, for the 2008–09 season. This analysis and least burdensome tools for Dated: May 9, 2012. was based on data from the 2006 achieving regulatory ends. The Eileen Sobeck, National Hunting and Fishing Survey, executive order directs agencies to Acting Assistant Secretary for Fish and the most recent year for which data are consider regulatory approaches that Wildlife and Parks. available (see discussion in Regulatory reduce burdens and maintain flexibility [FR Doc. 2012–11941 Filed 5–16–12; 8:45 am] Flexibility Act section below). This and freedom of choice for the public BILLING CODE 4310–55–P

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Reader Aids Federal Register Vol. 77, No. 96 Thursday, May 17, 2012

CUSTOMER SERVICE AND INFORMATION CFR PARTS AFFECTED DURING MAY

Federal Register/Code of Federal Regulations At the end of each month the Office of the Federal Register General Information, indexes and other finding 202–741–6000 publishes separately a List of CFR Sections Affected (LSA), which aids lists parts and sections affected by documents published since Laws 741–6000 the revision date of each title. Presidential Documents 3 CFR 1485...... 29474 Executive orders and proclamations 741–6000 3203...... 26660 Proclamations: The United States Government Manual 741–6000 Proposed Rules: 8805...... 25859 457...... 27658 Other Services 8806...... 26645 3201...... 25632 Electronic and on-line services (voice) 741–6020 8807...... 26647 Privacy Act Compilation 741–6064 8808...... 26649 9 CFR 741–6043 8809...... 26651 Public Laws Update Service (numbers, dates, etc.) 304...... 26991 741–6086 8810...... 26653 TTY for the deaf-and-hard-of-hearing 381...... 26991 8811...... 26655 417...... 26991 8812...... 26657 ELECTRONIC RESEARCH 418...... 26991 8813...... 26907 World Wide Web 8814...... 26909 Proposed Rules: Full text of the daily Federal Register, CFR and other publications 8815...... 27555 1...... 28799 is located at: www.fdsys.gov. 8816...... 28759 2...... 28799 Federal Register information and research tools, including Public 8817...... 28761 417...... 27135 424...... 26706 Inspection List, indexes, and links to GPO Access are located at: Executive Orders: www.ofr.gov. 13607...... 25861 10 CFR E-mail 13608...... 26409 13609...... 26413 11...... 26149 FEDREGTOC-L (Federal Register Table of Contents LISTSERV) is 13610...... 28469 25...... 26149 an open e-mail service that provides subscribers with a digital 73...... 27561 form of the Federal Register Table of Contents. The digital form Administrative Orders: 110...... 27113 Memorandums: of the Federal Register Table of Contents includes HTML and 431...... 26608, 28928 PDF links to the full text of each document. Memorandum of April 20, 2012 ...... 28757 Proposed Rules: To join or leave, go to http://listserv.access.gpo.gov and select Notices: 11...... 26213 Online mailing list archives, FEDREGTOC-L, Join or leave the list Notice of May 10, 25...... 26213 (or change settings); then follow the instructions. 2012 ...... 27559 54...... 28316 PENS (Public Law Electronic Notification Service) is an e-mail 61...... 26991 service that notifies subscribers of recently enacted laws. 5 CFR Ch. II ...... 28518 429 ...... 28519, 28674, 28805 To subscribe, go to http://listserv.gsa.gov/archives/publaws-l.html 213...... 28226 430 ...... 28519, 28674, 28805 and select Join or leave the list (or change settings); then follow 302...... 28226 Ch. III ...... 28518 the instructions. 315...... 28226 Ch. X...... 28518 FEDREGTOC-L and PENS are mailing lists only. We cannot 330...... 28226 respond to specific inquiries. 334...... 28226 12 CFR 362...... 28226 Reference questions. Send questions and comments about the 531...... 28226 618...... 25577 Federal Register system to: [email protected] 532...... 28471 1012...... 26154 The Federal Register staff cannot interpret specific documents or 536...... 28226 Proposed Rules: regulations. 537...... 28226 404...... 27140 Reminders. Effective January 1, 2009, the Reminders, including 550...... 28226 13 CFR Rules Going Into Effect and Comments Due Next Week, no longer 575...... 28226 appear in the Reader Aids section of the Federal Register. This 733...... 26659 124...... 28237 information can be found online at http://www.regulations.gov. 890...... 28226 Proposed Rules: CFR Checklist. Effective January 1, 2009, the CFR Checklist no 1600...... 26417 121...... 28520, 29130 longer appears in the Federal Register. This information can be 1601...... 26417 124...... 29130 found online at http://bookstore.gpo.gov/. 1604...... 26417 125...... 29130 1605...... 26417 126...... 29130 FEDERAL REGISTER PAGES AND DATE, MAY 1650...... 26417 127...... 29130 1651...... 26417 25577–25858...... 1 1653...... 26417 14 CFR 25859–26148...... 2 1655...... 26417 39 ...... 26154, 26156, 26158, 26149–26412...... 3 1690...... 26417 26663, 26937, 26943, 26945, 26413–26658...... 4 2423...... 26430 26948, 28238, 28240, 29207, 26659–26910...... 7 2424...... 26430 29210, 29212, 29214 26911–27112...... 8 2425...... 26430 71 ...... 26160, 28243, 28244, 27113–27356...... 9 2429...... 26430 28245, 28246, 28247 27357–27560...... 10 Proposed Rules: 91...... 28247 27561–28236...... 11 Ch. XXII ...... 28518 95...... 27357 28237–28470...... 14 97...... 26667, 26669 28471–28756...... 15 7 CFR 117...... 28763 28757–29206...... 16 205...... 28472 119...... 28763 29207–29518...... 17 1208...... 26911 121...... 28763

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1240...... 27365 602...... 26175 51...... 26183 158...... 28788, 28790 Proposed Rules: Proposed Rules: Proposed Rules: Proposed Rules: 16...... 29250 1...... 27612 4...... 27009 171...... 28543 23...... 28530 27 CFR 39 CFR 25...... 28533 47 CFR 39 ...... 25642, 25644, 25647, Proposed Rules: 20...... 28488 11...... 26701 25930, 26216, 26993, 26996, 9...... 27001 111 ...... 26185, 27125, 28259 12...... 28797 26998, 27142, 27144, 27659, 233...... 25596 27661, 27663, 28328 28 CFR 15...... 29236 51...... 26987 71 ...... 27146, 27148, 27149, 0...... 26181 40 CFR 27666, 27667 54...... 25609, 26987 9...... 29168 73...... 27631 29 CFR 50...... 28424 15 CFR 90...... 28797 51...... 28424, 28772 104...... 25868 Proposed Rules: 744...... 28250 52 ...... 25901, 26438, 26441, 4022...... 28477 1...... 29275 Proposed Rules: Proposed Rules: 26444, 26448, 27626, 28261, 742...... 25932 1206...... 28536 28264, 28489, 28491, 28782 48 CFR 774...... 25932 2200...... 27669 81...... 26950, 28424 82...... 29218 1...... 27546, 27551 17 CFR 30 CFR 97...... 28785 9...... 27547 1...... 26672 915...... 25868 141...... 26072 25...... 27548 275...... 28476 936...... 25872 142...... 26072 30...... 27550 Proposed Rules: 938...... 25874 180 ...... 25903, 25904, 26450, 52 ...... 27547, 27548, 27550 26456, 26462, 26467, 26954, 1...... 28819 1210...... 25877 Proposed Rules: 27126, 27130, 27628, 28266, 49...... 26709 1218...... 25877, 25881 2...... 26232 240...... 27150 28270, 28276, 28493 22...... 26232 Proposed Rules: 272...... 29231 943...... 25949 31...... 29305 18 CFR 300...... 27368 52...... 26232 449...... 29168 35...... 26674 31 CFR 799...... 28281 40...... 26688, 27574 1...... 28478 49 CFR Proposed Rules: Proposed Rules: Proposed Rules: 52 ...... 25660, 25953, 26474, 40...... 26471 40...... 26714 Ch. X...... 27381 26475, 27162, 27671, 28336, Ch. II ...... 25610 284...... 28331 28338, 28543, 28825, 29270 228...... 26703 32 CFR 231...... 26703 20 CFR 60...... 26476 236...... 27615 131...... 29271 236...... 28285 655...... 28764 706...... 28487 147...... 26231 350...... 28448, 28451 Proposed Rules: 180 ...... 25661, 25954, 26477, 384...... 26989 21 CFR 2402...... 27151 27164 385 ...... 26989, 28448, 28451 179...... 27586 272...... 29275 395...... 28448, 28451 201...... 27591 33 CFR 799...... 28340 396...... 28448 310...... 27591 100 ...... 27115, 27621, 28766 571...... 29247 510...... 26697, 29216 110...... 25587 42 CFR 1152...... 25910 520...... 28252, 29216 117 ...... 25590, 25591, 25592, Ch. IV...... 29002 Proposed Rules: 522 ...... 26161, 26697, 29216 25889, 25890, 26437, 27115, 441...... 26828 219...... 29307 558...... 26161, 29216 27624, 28488, 28767 482...... 29034 544...... 28343 600...... 26162 165 ...... 25592, 25595, 25890, 485...... 29034 661...... 26723 610...... 26162 25892, 26699, 27116, 27118, Proposed Rules: 1333...... 27384 680...... 26162 27120, 27123, 27621, 27625, 412...... 27870 28253, 28255, 28766, 28769, 413...... 27870 50 CFR 22 CFR 28770, 28771 424...... 27870 17...... 25611, 26191 62...... 27593 Proposed Rules: 430...... 26232, 26362 226...... 25611 123...... 25865 100...... 25650, 28538 431...... 26232, 26362 424...... 25611 126...... 25865 117...... 25653, 25655 435...... 26232, 26362 622 ...... 27374, 28305, 28308 Proposed Rules: 162...... 27007, 28825 436...... 26232, 26362 635...... 28496 121...... 25944 165 ...... 27156, 27159, 27381, 438...... 27671 648 ...... 25623, 25630, 26104, 29251, 29254 440...... 26232, 26362 23 CFR 26129, 26704, 28311 334...... 25952, 26229 441 ...... 26232, 26362, 27671 660...... 25915, 28497 655...... 28456, 28460 447 ...... 26232, 26362, 27671 679...... 26212 34 CFR 476...... 27870 24 CFR Proposed Rules: 690...... 25893 489...... 27870 13...... 27174, 28347 91...... 28765 Proposed Rules: 17 ...... 25664, 25668, 25792, 43 CFR 576...... 28765 Ch. VI...... 25658 27010, 27386, 27403, 28347, Proposed Rules: Proposed Rules: 28704, 28846, 29078 37 CFR 5...... 26218, 28742 3160...... 27691 20...... 29516 200...... 26218 Proposed Rules: 22...... 27174 207...... 26218 1...... 28331, 28541 44 CFR 223...... 26478, 27411 232...... 26218 41...... 28331 64...... 28282 224...... 26478 982...... 28742 202...... 29257 67...... 26959, 26968 402...... 28347 983...... 28742 385...... 29259 206...... 28786 600...... 26238 635...... 25669 26 CFR 38 CFR 45 CFR 640...... 28560 1 ...... 26175, 26698, 27669 17...... 28258 153...... 29235 648...... 27175

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Register but may be ordered H.R. 886/P.L. 112–104 listserv.gsa.gov/archives/ in ‘‘slip law’’ (individual United States Marshals publaws-l.html LIST OF PUBLIC LAWS pamphlet) form from the Service 225th Anniversary Superintendent of Documents, Commemorative Coin Act Note: This service is strictly This is a continuing list of U.S. Government Printing (Apr. 2, 2012; 126 Stat. 286) public bills from the current Office, Washington, DC 20402 for E-mail notification of new Last List April 2, 2012 session of Congress which (phone, 202–512–1808). The laws. The text of laws is not have become Federal laws. It text will also be made available through this service. may be used in conjunction available on the Internet from PENS cannot respond to with ‘‘P L U S’’ (Public Laws GPO’s Federal Digital System Public Laws Electronic specific inquiries sent to this Update Service) on 202–741– (FDsys) at http://www.gpo.gov/ Notification Service address. 6043. This list is also fdsys. Some laws may not yet (PENS) available online at http:// be available. www.archives.gov/federal- register/laws. H.R. 473/P.L. 112–103 PENS is a free electronic mail Help to Access Land for the notification service of newly The text of laws is not Education of Scouts (Apr. 2, enacted public laws. To published in the Federal 2012; 126 Stat. 284) subscribe, go to http://

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