Vol. 76 Tuesday, No. 168 August 30, 2011

Pages 53811–54070

OFFICE OF THE FEDERAL REGISTER

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Contents Federal Register Vol. 76, No. 168

Tuesday, August 30, 2011

Agency for Toxic Substances and Disease Registry See National Oceanic and Atmospheric Administration NOTICES See Patent and Trademark Office Availability of Final Toxicological Profile for RDX, 53906 Defense Acquisition Regulations System Agricultural Marketing Service NOTICES RULES Assessment Rate Decrease for Processed Pears Grown in Agency Information Collection Activities; Proposals, Oregon and Washington, 53811–53813 Submissions, and Approvals: Decreased Assessment Rate for Dried Prunes Produced in Special Contracting Methods, 53886–53887 California, 53813–53816 Softwood Lumber Research, Promotion, Consumer Defense Department Education and Industry Information Order; Correction, See Defense Acquisition Regulations System 53816 PROPOSED RULES Department of Transportation Irish Potatoes Grown in Colorado; Modification of the See Pipeline and Hazardous Materials Safety Handling Regulation for Area No. 3, 53842–53844 Administration National Dairy Promotion and Research Program, 53844– 53847 NOTICES Drug Enforcement Administration United States Standards for Grades of Cultivated Ginseng, NOTICES 53875–53879 Decisions and Orders: Richard A. Herbert, M.D., 53942–53961 Agriculture Department Importers of Controlled Substances; Registrations, 53961 See Agricultural Marketing Service Manufacturers of Controlled Substances; Registrations, See Federal Crop Insurance Corporation 53961 See Forest Service Revocations of Registrations: See Rural Housing Service Dale J. Bingham, P.A., 53964–53965 Harold Edward Smith, M.D., 53961–53964 Children and Families Administration See Refugee Resettlement Office NOTICES Energy Department Agency Information Collection Activities; Proposals, See Energy Efficiency and Renewable Energy Office Submissions, and Approvals: See Federal Energy Regulatory Commission ORR State Plan for Grants to States for Refugee NOTICES Resettlement, 53906–53907 Agency Information Collection Activities; Proposals, Submissions, and Approvals, 53887–53888 Civil Rights Commission Applications to Export Electric Energy: NOTICES Morgan Stanley Capital Group Inc., 53888 Meetings: Meetings: Colorado State Advisory Committee, 53881 Environmental Management Site-Specific Advisory Texas Advisory Committee, 53881 Board, Idaho National Laboratory, 53888–53889 National Petroleum Council, 53889 Coast Guard RULES Energy Efficiency and Renewable Energy Office Safety Zones: NOTICES 2011 Rohto Ironman 70.3 Miami, Biscayne Bay, Miami, Grant of Waiver from Commercial Package Air Conditioner FL, 53824–53826 and Heat Pump Test Procedures: Big Sioux River from the Military Road Bridge North LG Electronics, Inc., 53889–53896 Sioux City to the confluence of the Missouri River, SD, 53827–53829 ESI Ironman 70.3 Augusta Triathlon, Savannah River, Environmental Protection Agency Augusta, GA, 53829–53831 PROPOSED RULES Labor Day at the Landing Santa Rosa Sound, Fort Walton Approval and Promulgation of Implementation Plans and Beach, FL, 53822–53824 Designation of Areas for Air Quality Planning Missouri River from the Border between Montana and Purposes: North Dakota, 53820–53822 Louisiana; Baton Rouge Redesignation to Attainment for NOTICES the 1997 8-Hour Ozone Standard, 53853–53872 Meetings: NOTICES Merchant Mariner Medical Advisory Committee, 53924– EPA Seeking Input Materials Measurement: 53925 Municipal Solid Waste, Recycling, and Source Reduction Measurement in the U.S., 53897–53898 Commerce Department Proposed Administrative Settlement Agreements: See International Trade Administration Ely Copper Mine Superfund Site, Vershire, VT, 53898

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Federal Communications Commission NOTICES NOTICES Determinations that Drugs were Not Withdrawn from Sale Meetings: for Reasons of Safety or Effectiveness: North American Numbering Council, 53898–53899 OPANA ER Extended-Release Tablets, 7.5 Milligrams and 15 Milligrams, 53908–53909 Federal Crop Insurance Corporation TALWIN COMPOUND Tablets (Aspirin; Pentazocine NOTICES Hydrochloride), 325 Milligrams; Equivalent to 12.5 Agency Information Collection Activities; Proposals, Milligram Base, 53907–53908 Submissions, and Approvals, 53879 Draft Guidance for Industry; Availability: Tablet Scoring; Nomenclature, Labeling, and Data for Federal Deposit Insurance Corporation Evaluation, 53909–53910 NOTICES Fee for Using a Priority Review Voucher in Fiscal Year Terminations of Receiverships: 2012, 53910–53912 First Integrity Bank, Staples, MN, 53899 Public Database of Products With Orphan-Drug Designations: Federal Election Commission Replacing Non-Informative Code Names With Descriptive NOTICES Identifiers, 53912–53913 Meetings; Sunshine Act, 53899 Forest Service Federal Emergency Management Agency NOTICES NOTICES Meetings: Major Disaster and Related Determinations: Glenn/Colusa County Resource Advisory Committee, Kansas, 53927 53880 Missouri, 53926 Southwest Montana Resource Advisory Committee, 53880 Nebraska, 53927–53928 Uinta–Wasatch–Cache National Forest Resource Advisory Utah, 53926–53927 Committee, 53879–53880 Wyoming, 53925–53926 Meetings: General Services Administration National Advisory Council, 53929 NOTICES Meetings: Federal Energy Regulatory Commission President’s Management Advisory Board, 53901 NOTICES Combined Filings, 53896–53897 Health and Human Services Department See Agency for Toxic Substances and Disease Registry Federal Highway Administration See Children and Families Administration NOTICES See Food and Drug Administration Final Federal Agency Actions on Proposed Highway in See Refugee Resettlement Office California, 53996–53997 See Substance Abuse and Mental Health Services Administration Federal Railroad Administration NOTICES NOTICES Agency Information Collection Activities; Proposals, Petitions for Waivers of Compliance, 53997–53999 Submissions, and Approvals, 53901–53903 Delegation of Authorities, 53903–53906 Federal Reserve System NOTICES Homeland Security Department Changes in Bank Control: See Coast Guard Acquisitions of Shares of a Bank or Bank Holding See Federal Emergency Management Agency Company, 53899–53900 See U.S. Citizenship and Immigration Services Formations of, Acquisitions by, and Mergers of Bank See U.S. Immigration and Customs Enforcement Holding Companies, 53900 NOTICES Proposals to Engage in Permissible Nonbanking Activities Privacy Act; Systems of Records, 53918–53924 or to Acquire Companies Engaged in Permissible Nonbanking Activities, 53900 Housing and Urban Development Department PROPOSED RULES Fish and Wildlife Service Federal Housing Administration: RULES Suspension of Section 238(c) Single-Family Mortgage Migratory Bird Hunting: Insurance in Military Impacted Areas, 53851–53853 Final Frameworks for Early Season Hunting Regulations, NOTICES 54052–54070 Consolidated Delegation of Authority to the President of the Government National Mortgage Association, 53931 Food and Drug Administration Consolidated Redelegation of Authority for the Government RULES National Mortgage Association, 53931–53933 Advisory Committee; Change of Name and Function: Delegation Authority for Office of Sustainable Housing and Technical Amendment, 53816–53817 Communities, 53933–53934 PROPOSED RULES Delegation Authority for the Office of Policy Development Effective Date of Requirement for Premarket Approval for and Research, 53934 Cardiovascular Permanent Pacemaker Electrode; Delegation of Authority for Center for Faith-Based and Correction, 53851 Neighborhood Partnerships, 53934–53935

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Delegations of Authority: National Council on Disability Office of Chief Financial Officer, 53935–53936 NOTICES Designation by Chief Procurement Officer of Contracting Meetings; Sunshine Act, 53967 Officers, 53936 Designation of Chief Acquisition Officer and Senior National Indian Gaming Commission Procurement Executive and Delegation of Procurement RULES Authority, 53936–53937 Minimum Internal Control Standards for Class II Gaming, Order of Succession for Government National Mortgage 53817–53818 Association, 53937–53938 Order of Succession for Office of Chief Procurement National Labor Relations Board Officer, 53938 RULES Order of Succession for the Office of Policy Development Employee Rights under the National Labor Relations Act, and Research, 53938–53939 54006–54050 Orders of Succession: Office of Chief Financial Officer, 53939 National Oceanic and Atmospheric Administration RULES Interior Department Fisheries of the Exclusive Economic Zone Off Alaska: See Fish and Wildlife Service Other Rockfish, Other Flatfish, Sharks, and Skates in the See Land Management Bureau Bering Sea and Aleutian Islands Management Area, See National Indian Gaming Commission 53840–53841 See National Park Service Fisheries of the Northeastern United States: 2011 Summer Flounder, Scup, and Black Sea Bass Internal Revenue Service Specifications; Correction, 53831–53832 RULES Northeast Multispecies Fishery; Trip Limit Decrease for Determining Amount of Taxes Paid for Purposes of Foreign the Common Pool Fishery, 53832–53833 Tax Credits: Magnuson–Stevens Act Provisions; Fisheries Off West Coast Correcting Amendment, 53819 States: Correction, 53818–53819 Pacific Coast Groundfish Fishery; Amendments 20 and Methods of Accounting Used by Corporations that Acquire 21; Trawl Rationalization Program; Correcting Assets of Other Corporations: Amendments, 53833–53840 Correction, 53819–53820 PROPOSED RULES NOTICES Fisheries of the Northeastern United States; Northeast Skate Agency Information Collection Activities; Proposals, Complex Fishery: Submissions, and Approvals, 54000–54001 Secretarial Emergency Action, 53872–53874 NOTICES International Trade Administration Agency Information Collection Activities; Proposals, NOTICES Submissions, and Approvals: Agency Information Collection Activities; Proposals, Satellite Ground Station Customer Questionnaire, 53883– Submissions, and Approvals: 53884 Trade Fair Certification Program Application, 53882 Taking and Importing Marine Mammals: Antidumping and Countervailing Duty Orders: U.S. Navy Operations of Surveillance Towed Array Stainless Steel Plate in Coils from Belgium, the Republic Sensor System Low Frequency Active Sonar, 53884– of Korea, South Africa, and Taiwan, 53882–53883 53885 Justice Department National Park Service See Drug Enforcement Administration See Justice Programs Office NOTICES NOTICES Meetings: Lodging of Consent Decrees Under The Clean Water Act, Boston Harbor Islands National Recreation Area Advisory 53941 Council, 53941 Lodging of First Addendum to Consent Decrees, 53942 National Transportation Safety Board Justice Programs Office NOTICES NOTICES Meetings; Sunshine Act, 53967 Meetings: Advisory Committee on Juvenile Justice, 53965–53966 Nuclear Regulatory Commission PROPOSED RULES Labor Department Annual Dose Limit to the Lens of the Eye: See Workers Compensation Programs Office New International Commission on Radiological Protection Recommendations, 53847–53851 Land Management Bureau NOTICES NOTICES Applications for Indirect License Transfers: Filing of Plats of Survey: Carolina Power and Light, Brunswick Steam Electric Alaska, 53939–53940 Plant, Units 1 and 2, 53970–53972 Arizona, 53940 Carolina Power and Light, Shearon Harris Nuclear Power Meetings: Plant, Unit 1, 53967–53969 Western Montana Resource Advisory Council, 53940– Florida Power Corp., Crystal River Unit No. 3 Nuclear 53941 Generating Plant, 53972–53975

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Confirmatory Orders: Substance Abuse and Mental Health Services Professional Service Industries, Inc., Oakbrook Terrace, Administration IL, 53975–53979 Meetings: NOTICES Advisory Committee on Reactor Safeguards Agency Information Collection Activities; Proposals, Subcommittee on Thermal Hydraulics Phenomena, Submissions, and Approvals, 53913–53918 53979–53980 Meetings; Sunshine Act, 53980 Tennessee Valley Authority Requests for Radioactive Waste Import Licenses, 53980– NOTICES 53981 Environmental Impact Statements; Availability, etc.: Single Nuclear Unit at the Bellefonte Plant Site, Jackson Patent and Trademark Office County, AL, 53994–53996 NOTICES Agency Information Collection Activities; Proposals, Toxic Substances and Disease Registry Agency Submissions, and Approvals: See Agency for Toxic Substances and Disease Registry Resource Centers Metrics, 53885–53886 Transportation Department Pipeline and Hazardous Materials Safety Administration See Federal Highway Administration NOTICES See Federal Railroad Administration Safety Notice: See Pipeline and Hazardous Materials Safety Transportation of DOT Special Permit Packages in Administration Commerce, 53999–54000 Treasury Department See Internal Revenue Service Postal Regulatory Commission NOTICES NOTICES Agency Information Collection Activities; Proposals, New Postal Product and Rate Adjustment, 53982–53983 Submissions, and Approvals, 54000 New Postal Products, 53981–53984 Post Office Closing, 53984–53987 U.S. Citizenship and Immigration Services NOTICES Refugee Resettlement Office Agency Information Collection Activities; Proposals, NOTICES Submissions, and Approvals, 53929–53930 Award of Urgent Single-Source Grant to Survivors of Torture International in San Diego, CA: U.S. Immigration and Customs Enforcement Correction, 53913 NOTICES Agency Information Collection Activities; Proposals, Rural Housing Service Submissions, and Approvals, 53930 NOTICES Availability of Funds: Veterans Affairs Department Farm Labor Housing Loans and Farm Labor Housing NOTICES Grants for Off-Farm Housing for Fiscal Year 2011; Agency Information Collection Activities; Proposals, Correction, 53880–53881 Submissions, and Approvals: Applications for Compensation; Applications for Pension; Securities and Exchange Commission Applications for DIC, Death Pension, and/or Accrued Benefits, 54002 NOTICES Authorization and Certification of Entrance or Reentrance Meetings; Sunshine Act, 53987 into Rehabilitation and Certification of Status, Self-Regulatory Organizations; Proposed Rule Changes: 54003–54004 Depository Trust Co., 53987–53988 Election to Apply Selected Reserve Services to either EDGA Exchange, Inc., 53988–53990 Montgomery GI Bill—Active Duty or to the EDGX Exchange, Inc., 53990–53993 Montgomery GI Bill—Selected Reserve, 54001 Joint Application for Comprehensive Assistance and Social Security Administration Support Services for Family Caregivers, 54004 NOTICES National Practitioner Data Bank Regulations, 54001– Meetings: 54002 Occupational Information Development Advisory Panel, Nonprofit Research and Education Corporations Data 53993 Collection, 54002–54003 Report of Medical, Legal, and Other Expenses Incident to Recovery for Injury or Death, 54004 State Department NOTICES Culturally Significant Objects Imported for Exhibition Workers Compensation Programs Office Determinations: NOTICES New Photography 2011; Zhang Dali, Moyra Davey, Agency Information Collection Activities; Proposals, George Georgiou, Deana Lawson, Doug Rickard, Submissions, and Approvals, 53966 Viviane Sassen, 53993–53994

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Separate Parts In This Issue Reader Aids Consult the Reader Aids section at the end of this page for Part II phone numbers, online resources, finding aids, reminders, National Labor Relations Board, 54006–54050 and notice of recently enacted public laws. To subscribe to the Federal Register Table of Contents Part III LISTSERV electronic mailing list, go to http:// Interior Department, Fish and Wildlife Service, 54052– listserv.access.gpo.gov and select Online mailing list 54070 archives, FEDREGTOC-L, Join or leave the list (or change 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 927...... 53811 993...... 53813 1217...... 53816 Proposed Rules: 948...... 53842 1150...... 53844 10 CFR Proposed Rules: Ch. I ...... 53847 21 CFR 14...... 53816 Proposed Rules: 870...... 53851 24 CFR Proposed Rules: 203...... 53851 25 CFR 542...... 53817 543...... 53817 26 CFR 1 (5 documents) ...... 53818, 53819 29 CFR 104...... 54006 33 CFR 165 (5 documents) ...... 53820, 53822, 53824, 53827, 53829 40 CFR Proposed Rules: 52...... 53853 81...... 53853 50 CFR 20...... 53852 648 (2 documents) ...... 53831, 53832 660...... 53833 679...... 53840 Proposed Rules: 648...... 53872

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Rules and Regulations Federal Register Vol. 76, No. 168

Tuesday, August 30, 2011

This section of the FEDERAL REGISTER available for public inspection in the with USDA a petition stating that the contains regulatory documents having general Office of the Docket Clerk during regular order, any provision of the order, or any applicability and legal effect, most of which business hours, or can be viewed at: obligation imposed in connection with are keyed to and codified in the Code of http://www.regulations.gov. All the order is not in accordance with law Federal Regulations, which is published under comments submitted in response to this and request a modification of the order 50 titles pursuant to 44 U.S.C. 1510. rule will be included in the record and or to be exempted therefrom. Such The Code of Federal Regulations is sold by will be made available to the public. handler is afforded the opportunity for the Superintendent of Documents. Prices of Please be advised that the identity of the a hearing on the petition. After the new books are listed in the first FEDERAL individuals or entities submitting the hearing, USDA would rule on the REGISTER issue of each week. comments will be made public on the petition. The Act provides that the Internet at the address provided above. district court of the United States in any FOR FURTHER INFORMATION CONTACT: district in which the handler is an DEPARTMENT OF AGRICULTURE Teresa Hutchinson or Gary Olson, inhabitant, or has his or her principal Northwest Marketing Field Office, place of business, has jurisdiction to Agricultural Marketing Service Marketing Order Administration review USDA’s ruling on the petition, Branch, Fruit and Vegetable Programs, provided an action is filed not later than 7 CFR Part 927 AMS, USDA; Telephone: (503) 326– 20 days after the date of the entry of the [Doc. No. AMS–FV–11–0070 FV11–927–3 IR] 2724, Fax: (503) 326–7440, or E-mail: ruling. [email protected] or This rule decreases the assessment Pears Grown in Oregon and [email protected]. rate established for the Committee for Washington; Assessment Rate Small businesses may request the 2011–2012 and subsequent fiscal Decrease for Processed Pears information on complying with this periods from $8.41 to $7.73 per ton for AGENCY: Agricultural Marketing Service, regulation by contacting Laurel May, summer/fall processed pears handled. USDA. Marketing Order Administration The assessment rate for ‘‘winter’’ and Branch, Fruit and Vegetable Programs, ACTION: Interim rule with request for ‘‘other’’ pears for processing would AMS, USDA, 1400 Independence comments. remain unchanged at a zero rate. Avenue, SW., STOP 0237, Washington, The order provides authority for the SUMMARY: This rule decreases the DC 20250–0237; Telephone: (202) 720– Committee, with USDA approval, to assessment rate established for the 2491, Fax: (202) 720–8938, or E-mail: formulate an annual budget of expenses Processed Pear Committee (Committee) [email protected]. and to collect assessments from for the 2011–2012 and subsequent fiscal SUPPLEMENTARY INFORMATION: This rule handlers to administer the processed periods from $8.41 to $7.73 per ton of is issued under Marketing Order No. pear program. The members of the summer/fall processed pears. The 927, as amended (7 CFR part 927), Committee are producers, handlers, and Committee locally administers the regulating the handling of pears grown processors of Oregon-Washington marketing order which regulates the in Oregon and Washington, hereinafter processed pears. They are familiar with handling of processed pears grown in referred to as the ‘‘order.’’ The order is the Committee’s needs and with the Oregon and Washington. Assessments effective under the Agricultural costs for goods and services in their upon handlers of Oregon-Washington Marketing Agreement Act of 1937, as local area and are thus in a position to processed pears are used by the amended (7 U.S.C. 601–674), hereinafter formulate an appropriate budget and Committee to fund reasonable and referred to as the ‘‘Act.’’ assessment rate. The assessment rate is necessary expenses of the program. The The Department of Agriculture formulated and discussed at a public fiscal period begins July 1 and ends June (USDA) is issuing this rule in meeting. Thus, all directly affected 30. The assessment rate will remain in conformance with Executive Order persons have an opportunity to effect indefinitely unless modified, 12866. participate and provide input. suspended, or terminated. This rule has been reviewed under For the 2009–2010 and subsequent DATES: Effective August 31, 2011. Executive Order 12988, Civil Justice fiscal periods, the Committee Comments received by October 31, Reform. Under the marketing order now unanimously recommended, and USDA 2011, will be considered prior to in effect, Oregon-Washington pear approved, the following three base rates issuance of a final rule. handlers are subject to assessments. of assessment: (a) $8.41 per ton for any ADDRESSES: Interested persons are Funds to administer the order are or all varieties or subvarieties of pears invited to submit written comments derived from such assessments. It is for canning classified as ‘‘summer/fall’’, concerning this rule. Comments must be intended that the assessment rate as excluding pears for other methods of sent to the Docket Clerk, Marketing issued herein will be applicable to all processing; (b) $0.00 per ton for any or Order Administration Branch, Fruit and assessable summer/fall processed pears all varieties or subvarieties of pears for Vegetable Programs, AMS, USDA, 1400 beginning July 1, 2011, and continue processing classified as ‘‘winter’’; and Independence Avenue, SW., STOP until amended, suspended, or (c) $0.00 per ton for any or all varieties 0237, Washington, DC 20250–0237; Fax: terminated. or subvarieties of pears for processing (202) 720–8938; or Internet: http:// The Act provides that administrative classified as ‘‘other’’. The assessment www.regulations.gov. Comments should proceedings must be exhausted before rate for ‘‘summer/fall’’ pears applies reference the document number and the parties may file suit in court. Under only to pears for canning and excludes date and page number of this issue of section 608c(15)(A) of the Act, any pears for other methods of processing as the Federal Register and will be handler subject to an order may file defined in § 927.15, which includes

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pears for concentrate, freezing, The assessment rate established in Based on the number of processed pear dehydrating, pressing, or in any other this rule will continue in effect growers in the Oregon and Washington, way to convert pears into a processed indefinitely unless modified, the average gross revenue for each product. This rate would continue in suspended, or terminated by USDA grower can be estimated at effect from fiscal period to fiscal period upon recommendation and information approximately $50,951. Furthermore, unless modified, suspended, or submitted by the Committee or other based on Committee records, the terminated by USDA upon available information. Committee has estimated that all of the recommendation and information Although this assessment rate is Northwest pear handlers currently ship submitted by the Committee or other effective for an indefinite period, the less than $7,000,000 worth of processed information available to USDA. Committee will continue to meet prior pears each on an annual basis. From this The Committee met on June 2, 2011, to or during each fiscal period to information, it is concluded that the and unanimously recommended 2011– recommend a budget of expenses and majority of growers and handlers of 2012 expenditures of $926,933 and an consider recommendations for Oregon and Washington processed pears assessment rate of $7.73 per ton for modification of the assessment rate. The may be classified as small entities. summer/fall processed pears handled. dates and times of Committee meetings There are five processing plants in the In comparison, last year’s budgeted are available from the Committee or production area, with one in Oregon expenditures were $1,038,258. The USDA. Committee meetings are open to and four in Washington. All five assessment rate of $7.73 is $0.78 lower the public and interested persons may processors would be considered large than the rate previously in effect. The express their views at these meetings. entities under the SBA’s definition of Committee recommended the USDA will evaluate Committee small businesses. assessment rate decrease because the recommendations and other available This rule decreases the assessment summer/fall processed pear promotion information to determine whether rate established for the Committee and budget was reduced. modification of the assessment rate is collected from handlers for the 2011– The major expenditures needed. Further rulemaking will be 2012 and subsequent fiscal periods from recommended by the Committee for the undertaken as necessary. The $8.41 to $7.73 per ton for processed 2011–2012 fiscal period include Committee’s 2011–2012 budget and pears handled. The Committee $759,000 for promotion and paid those for subsequent fiscal periods will unanimously recommended 2011–2012 advertising, $117,243 for research be reviewed and, as appropriate, expenditures of $926,933 and an programs, $24,000 for contracted approved by USDA. assessment rate of $7.73 per ton for administration by Washington State summer/fall processed pears. The Fruit Commission, and $12,500 for Initial Regulatory Flexibility Analysis assessment rate of $7.73 is $0.78 lower market access and trade policy. In Pursuant to requirements set forth in than the previous rate. The Committee comparison, major expenses for the the Regulatory Flexibility Act (RFA) recommended the assessment rate 2010–2011 fiscal period included (5 U.S.C. 601–612), the Agricultural $846,500 for promotion and paid Marketing Service (AMS) has decrease because the summer/fall advertising, $140,658 for research considered the economic impact of this processed pear promotion budget was programs, $24,200 for contracted rule on small entities. Accordingly, reduced. administration by Washington State AMS has prepared this initial regulatory The quantity of assessable processed Fruit Commission, and $11,400 for flexibility analysis. pears for the 2011–2012 fiscal period is market access and trade policy. The purpose of the RFA is to fit estimated at 120,000 tons. Thus, the The Committee based its regulatory actions to the scale of $7.73 rate should provide $927,600 in recommended assessment rate for business subject to such actions in order assessment income. Income derived processed pears on the 2011–2012 that small businesses will not be unduly from summer/fall processed pear summer/fall processed pear crop or disproportionately burdened. handler assessments, and interest and estimate, the 2011–2012 program Marketing orders issued pursuant to the other income ($500) would be adequate expenditure needs, and the current and Act, and the rules issued thereunder, are to cover the budgeted expenses. projected size of its monetary reserve. unique in that they are brought about The major expenditures Applying the $7.73 per ton rate to the through group action of essentially recommended by the Committee for the Committee’s 120,000 ton summer/fall small entities acting on their own 2011–2012 fiscal period include processed pear crop estimate should behalf. $759,000 for promotion and paid provide $927,600 in assessment income. There are approximately 1,500 advertising, $117,243 for research Thus, income derived from summer/fall growers of processed pears in the programs, $24,000 for contracted processed pear handler assessments, regulated production area and administration by Washington State and interest and other income ($500) approximately 51 handlers of processed Fruit Commission, and $12,500 for would be adequate to cover the pears subject to regulation under the market access and trade policy. In recommended $926,933 budget for order. Small agricultural growers are comparison, major expenses for the 2011–2012. Funds in the reserve were defined by the Small Business 2010–2011 fiscal period included $467,501 as of June 30, 2010. The Administration (SBA) (13 CFR 121.201) $846,500 for promotion and paid Committee estimates that $98,055 will as those having annual receipts of less advertising, $140,658 for research be added to the reserve for 2010–2011. than $750,000, and small agricultural programs, $24,200 for contracted Thus, the Committee estimates a reserve service firms are defined as those whose administration by Washington State of $565,556 on June 30, 2011, For 2011– annual receipts are less than $7,000,000. Fruit Commission, and $11,400 for 2012, the Committee estimates that According to the Noncitrus Fruits and market access and trade policy. $1,167 will be added to the reserve for Nuts 2010 Preliminary Summary issued The Committee discussed alternate an estimated reserve of $566,723 on in January 2011 by the National rates of assessment, but determined that June 30, 2012, which would be within Agricultural Statistics Service, the total the recommended assessment rate the maximum permitted by the order of farm-gate value of summer/fall would be sufficient to fund the 2011– approximately one fiscal period’s processed pears grown in Oregon and 2012 summer/fall processed pear operational expenses (§ 927.42). Washington for 2010 was $76,427,000. programs.

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A review of historical information and be viewed at: http://www.ams.usda.gov/ canning classified as ‘‘summer/fall’’ preliminary information pertaining to MarketingOrdersSmallBusinessGuide. excluding pears for other methods of the upcoming fiscal period indicates Any questions about the compliance processing; that the Oregon-Washington grower guide should be sent to Laurel May at * * * * * price for the 2011–2012 fiscal period the previously mentioned address in the Dated: August 19, 2011. could range between $216 and $283 per FOR FURTHER INFORMATION CONTACT ton of processed pears. Therefore, the section. David R. Shipman, estimated assessment revenue for the After consideration of all relevant Acting Administrator, Agricultural Marketing 2011–2012 fiscal period as a percentage material presented, including the Service. of total grower revenue could range information and recommendation [FR Doc. 2011–22115 Filed 8–29–11; 8:45 am] between 3.58 and 2.73 percent. submitted by the Committee and other BILLING CODE 3410–02–P This action decreases the assessment available information, it is hereby found obligation imposed on handlers. that this rule, as hereinafter set forth, Assessments are applied uniformly on will tend to effectuate the declared DEPARTMENT OF AGRICULTURE all handlers, and some of the costs may policy of the Act. be passed on to producers. However, Pursuant to 5 U.S.C. 553, it is also Agricultural Marketing Service decreasing the assessment rate reduces found and determined upon good cause the burden on handlers, and may reduce that it is impracticable, unnecessary, 7 CFR Part 993 the burden on producers. and contrary to the public interest to [Doc. No. AMS–FV–11–0068; FV11–993–1 In addition, the Committee’s meeting give preliminary notice prior to putting IR] was widely publicized throughout the this rule into effect, and that good cause Oregon-Washington pear industry and exists for not postponing the effective Dried Prunes Produced in California; all interested persons were invited to date of this rule until 30 days after Decreased Assessment Rate attend the meeting and participate in publication in the Federal Register AGENCY: Agricultural Marketing Service, Committee deliberations on all issues. because: (1) The 2011–2012 fiscal USDA. Like all Committee meetings, the June 2, period began on July 1, 2011, and the 2011, meeting was a public meeting and ACTION: Interim rule with request for marketing order requires that the rate of comments. all entities, both large and small, were assessment for each fiscal period apply able to express views on this issue. to all assessable pears handled during SUMMARY: This rule decreases the Finally, interested persons are invited to such fiscal period; (2) this action assessment rate established for the submit comments on this interim rule, decreases the assessment rate for Prune Marketing Committee including the regulatory and assessable processed pears beginning (Committee) for the 2011–12 and informational impacts of this action on with the 2011–2012 fiscal period; (3) subsequent crop years from $0.27 to small businesses. handlers are aware of this action which $0.22 per ton of salable dried prunes In accordance with the Paperwork was unanimously recommended by the handled. The Committee locally Reduction Act of 1991 (44 U.S.C. Committee at a public meeting and is administers the marketing order which Chapter 35), the order’s information similar to other assessment rate actions regulates the handling of dried prunes collection requirements have been issued in past years; and (4) this interim produced in California. Assessments previously approved by the Office of rule provides a 60-day comment period, upon dried prune handlers are used by Management and Budget (OMB) and and all comments timely received will the Committee to fund reasonable and assigned OMB No. 0581–0189, Generic be considered prior to finalization of necessary expenses of the program. The Fruit Crops. No changes in those this rule. crop year begins August 1 and ends July requirements as a result of this action List of Subjects in 7 CFR Part 927 31. The assessment rate will remain in are anticipated. Should any changes effect indefinitely unless modified, become necessary, they would be Marketing agreements, Pears, suspended, or terminated. submitted to OMB for approval. Reporting and recordkeeping This action imposes no additional DATES: Effective August 31, 2011. requirements. Comments received by October 31, reporting or recordkeeping requirements For the reasons set forth in the on either small or large Oregon- 2011, will be considered prior to preamble, 7 CFR part 927 is amended as issuance of a final rule. Washington processed pear handlers. As follows: with all Federal marketing order ADDRESSES: Interested persons are programs, reports and forms are PART 927—PEARS GROWN IN invited to submit written comments periodically reviewed to reduce OREGON AND WASHINGTON concerning this rule. Comments must be information requirements and sent to the Docket Clerk, Marketing duplication by industry and public ■ 1. The authority citation for 7 CFR Order Administration Branch, Fruit and sector agencies. part 927 continues to read as follows: Vegetable Programs, AMS, USDA, 1400 AMS is committed to complying with Authority: 7 U.S.C. 601–674. Independence Avenue, SW., STOP 0237, Washington, DC 20250–0237; Fax: the E-Government Act, to promote the ■ 2. In § 927.237, the introductory text (202) 720–8938; or Internet: http:// use of the Internet and other and paragraph (a) are revised to read as www.regulations.gov. Comments should information technologies to provide follows: increased opportunities for citizen reference the document number and the access to Government information and § 927.237 Processed pear assessment date and page number of this issue of services, and for other purposes. rate. the Federal Register and will be USDA has not identified any relevant On and after July 1, 2011, the available for public inspection in the Federal rules that duplicate, overlap, or following base rates of assessment for Office of the Docket Clerk during regular conflict with this rule. pears for processing are established for business hours, or can be viewed at: A small business guide on complying the Processed Pear Committee: http://www.regulations.gov. All with fruit, vegetable, and specialty crop (a) $7.73 per ton for any or all comments submitted in response to this marketing agreements and orders may varieties or subvarieties of pears for rule will be included in the record and

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will be made available to the public. inhabitant, or has his or her principal forward into the 2011–12 crop year, the Please be advised that the identity of the place of business, has jurisdiction to estimated interest income, the estimated individuals or entities submitting the review USDA’s ruling on the petition, salable tons of California dried prunes, comments will be made public on the provided an action is filed not later than and handler assessment revenue needed Internet at the address provided above. 20 days after the date of the entry of the to meet anticipated expenses. Excess FOR FURTHER INFORMATION CONTACT: ruling. funds carried forward are expected to be Andrea Ricci or Kurt Kimmel, California This rule decreases the assessment about $19,650 and interest income is Marketing Field Office, Marketing Order rate established for the Committee for estimated at $7. Dried prune production Administration Branch, Fruit and the 2011–12 and subsequent crop years for the year is estimated at 122,000 Vegetable Programs, AMS, USDA; from $0.27 per to $0.22 per ton of salable tons, which should provide Telephone: (559) 487–5901, Fax: (559) salable dried prunes. $26,840 in assessment income. In 487–5906, or E-mail: The California dried prune marketing addition, most of the Committee’s [email protected] or order provides authority for the expenses reflect its portion of the joint [email protected]. Committee, with the approval of USDA, administrative costs of the Committee Small businesses may request to formulate an annual budget of and the California Dried Plum Board information on complying with this expenses and collect assessments from (CDPB). Based on the Committee’s handlers to administer the program. The regulation by contacting Laurel May, reduced activities in the recent years, it members of the Committee are Marketing Order Administration is funding only 5 percent of the shared producers and handlers of California Branch, Fruit and Vegetable Programs, expenses of the two programs. This dried prunes. They are familiar with the AMS, USDA, 1400 Independence funding level is similar to that of last Committee’s needs and with the costs Avenue, SW., STOP 0237, Washington, year. The Committee believes that the DC 20250–0237; Telephone: (202) 720– for goods and services in their local area and are thus in a position to formulate current excess funds carried forward 2491, Fax: (202) 720–8938, or E-mail: from the 2010–11 crop year and [email protected]. an appropriate budget and assessment rate. The assessment rate is formulated estimated interest income combined SUPPLEMENTARY INFORMATION: This rule and discussed in a public meeting. with funds generated from the lower is issued under Marketing Agreement Thus, all directly affected persons have 2011–12 assessment rate and decreased No. 110 and Order No. 993, both as an opportunity to participate and crop will be adequate to cover its amended (7 CFR part 993), regulating provide input. anticipated 2011–2012 expenses of the handling of dried prunes produced For the 2010–11 and subsequent crop $46,497. in California, hereinafter referred to as years, the Committee recommended, The Committee is authorized under the ‘‘order.’’ The order is effective under and USDA approved, an assessment rate § 993.81(c) of the order to use excess the Agricultural Marketing Agreement that would continue in effect from crop assessment funds from the 2010–11 crop Act of 1937, as amended (7 U.S.C. 601– year to crop year unless modified, year (currently estimated at $19,650) for 674), hereinafter referred to as the suspended, or terminated by USDA up to 5 months beyond the end of the ‘‘Act.’’ upon recommendation and information crop year to meet the 2011–12 crop year The Department of Agriculture submitted by the Committee or other expenses. At the end of the 5 months, (USDA) is issuing this rule in information available to USDA. the Committee either refunds or credits conformance with Executive Order The Committee met on June 16, 2011, excess funds to handlers. 12866. and unanimously recommended 2011– The assessment rate established in This rule has been reviewed under 12 expenditures of $46,497 and an Executive Order 12988, Civil Justice this rule will continue in effect assessment rate of $0.22 per ton of indefinitely unless modified, Reform. Under the marketing order now salable dried prunes. In comparison, last in effect, California dried prune suspended, or terminated by USDA year’s budgeted expenditures were upon recommendation and information handlers are subject to assessments. $55,548. The assessment rate of $0.22 is Funds to administer the order are submitted by the Committee or other $0.05 lower than the rate currently in available information. derived from such assessments. It is effect. intended that the assessment rate as The Committee unanimously Although this assessment rate is issued herein will be applicable to all recommended the lower assessment rate effective for an indefinite period, the assessable dried prunes beginning because of a substantial decrease in Committee will continue to meet prior August 1, 2011, and continue until salaries and wages expense. The current to or during each crop year to amended, suspended, or terminated. excess funds carried forward and recommend a budget of expenses and The Act provides that administrative estimated interest income combined consider recommendations for proceedings must be exhausted before with the funds generated from the modification of the assessment rate. The parties may file suit in court. Under decreased assessment rate and dates and times of Committee meetings section 608c(15)(A) of the Act, any decreased crop is expected to provide are available from the Committee or handler subject to an order may file adequate income to cover anticipated USDA. Committee meetings are open to with USDA a petition stating that the 2011–12 year expenses. the public and interested persons may order, any provision of the order, or any The major expenditures express their views at these meetings. obligation imposed in connection with recommended by the Committee for the USDA will evaluate Committee the order is not in accordance with law 2011–12 year include $20,993 for recommendations and other available and request a modification of the order salaries and wages expense, $9,783 for information to determine whether or to be exempted therefrom. Such operating expenses, and $15,721 for modification of the assessment rate is handler is afforded the opportunity for contingences. Budgeted expenses for needed. Further rulemaking will be a hearing on the petition. After the these items in 2010–11 were $31,781, undertaken as necessary. The hearing, USDA would rule on the $10,730, and $13,037, respectively. Committee’s 2011–12 budget and those petition. The Act provides that the The assessment rate recommended by for subsequent crop years will be district court of the United States in any the Committee was derived by reviewed and, as appropriate, approved district in which the handler is an considering the excess funds carried by USDA.

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Initial Regulatory Flexibility Analysis The major expenditures informational impacts of this action on recommended by the Committee for the small businesses. Pursuant to requirements set forth in 2011–12 crop year include $20,993 for In accordance with the Paperwork the Regulatory Flexibility Act (RFA) (5 salaries and wages expense, $9,783 for Reduction Act of 1995, (44 U.S.C. U.S.C. 601–612), the Agricultural operating expenses, and $15,721 for Chapter 35), the order’s information Marketing Service (AMS) has contingences. Budgeted expenses for collection requirements have been considered the economic impact of this these items in 2010–11 were $31,781, previously approved by the Office of rule on small entities. Accordingly, $10,730, and $13,037, respectively. Management and Budget (OMB) and AMS has prepared this initial regulatory The Committee unanimously assigned OMB No. 0581–0178 Vegetable flexibility analysis. recommended the lower assessment rate and Specialty Crop Marketing Orders. The purpose of the RFA is to fit because of a substantial decrease in No changes in those requirements as a regulatory actions to the scale of salaries and wages expense. The current result of this action are necessary. business subject to such actions in order excess funds carried forward and Should any changes become necessary, that small businesses will not be unduly estimated interest income combined they would be submitted to OMB for or disproportionately burdened. with the funds generated from the approval. Marketing orders issued pursuant to the decreased assessment rate and This action imposes no additional Act, and the rules issued thereunder, are decreased crop are expected to provide reporting or recordkeeping requirements unique in that they are brought about adequate income to cover anticipated on either small or large California dried through group action of essentially 2011–12 year expenses. prune handlers. As with all Federal small entities acting on their own The Committee discussed alternatives marketing order programs, reports and behalf. to this rule, including alternative forms are periodically reviewed to reduce information requirements and There are approximately 800 expenditure levels, but determined that duplication by industry and public producers of dried prunes in the the recommended expenses were sector agencies. California area and approximately 21 reasonable and necessary to adequately handlers subject to regulation under the AMS is committed to complying with cover program operations. Prior to the E-Government Act, to promote the marketing order. Small agricultural arriving at its budget of $46,497, the producers are defined by the Small use of the Internet and other Committee considered information from information technologies to provide Business Administration (13 CFR various sources, including the 121.201) as those having annual receipts increased opportunities for citizen Committee’s Executive Subcommittee. access to Government information and less than $750,000, and small The Executive Subcommittee reviewed agricultural service firms are defined as services, and for other purposes. the administrative expenses shared USDA has not identified any relevant those whose annual receipts are less between the Committee and the CDPB than $7,000,000. Federal rules that duplicate, overlap, or in recent years. conflict with this rule. Committee data indicates that about According to NASS, the season A small business guide on complying 64 percent of the handlers ship under average producer price was $1,230 in with fruit, vegetable, and specialty crop $7,000,000 worth of dried prunes. 2009 and $1,180 per ton of salable dried marketing agreements and orders may Dividing the average dried prune crop prunes in 2010. A review of this be viewed at: http://www.ams.usda.gov/ value for 2010 reported by the National historical data and preliminary MarketingOrdersSmallBusinessGuide. Agricultural Statistics Service (NASS) of information pertaining to the upcoming Any questions about the compliance $149,860,000 by the number of crop year indicates that the producer guide should be sent to Laurel May at producers (800) yields the average prices for the 2011–12 crop year could the previously mentioned address in the annual producer revenue estimate of range between $1,230 and $1,180. FOR FURTHER INFORMATION CONTACT about $187,325. Thus, the majority of Therefore, the estimated assessment section. handlers and California dried prune revenue for the 2011–12 crop year as a After consideration of all relevant producers may be classified as small percentage of total producer prices material presented, including the entities. during the 2011–12 crop year could information and recommendation This rule decreases the assessment range between 0.018 and 0.019 percent. submitted by the Committee and other rate established for the Committee and This action decreases the assessment available information, it is hereby found collected from handlers for the 2011–12 obligation imposed on handlers. that this rule, as hereinafter set forth, and subsequent crop years from $0.27 to Assessments are applied uniformly on will tend to effectuate the declared $0.22 per ton of salable dried prunes. all handlers, and some of the costs may policy of the Act. The Committee unanimously be passed on to producers. However, Pursuant to 5 U.S.C. 553, it is also recommended 2011–12 estimated decreasing the assessment rate reduces found and determined upon good cause expenses of $46,497 and a decreased the burden on handlers, and may reduce that it is impracticable, unnecessary, assessment rate of $0.22 per ton of the burden on producers. In addition, and contrary to the public interest to salable dried prunes. the Committee’s meeting was widely give preliminary notice prior to putting The quantity of assessable dried publicized throughout the California this rule into effect, and that good cause prunes for the 2011–12 crop year is dried prune industry and all interested exists for not postponing the effective estimated at 122,000 tons. Thus, the persons were invited to attend the date of this rule until 30 days after $0.22 rate should provide $26,840 in meeting and participate in Committee publication in the Federal Register assessment income. The current excess deliberations on all issues. Like all because: (1) The 2011–12 crop year funds carried forward and estimated Committee meetings, the June 16, 2011, begins on August 1, 2011, and the interest income combined with funds meeting was a public meeting and all marketing order requires that the rate of generated from the decreased entities, both large and small, were able assessment for each crop year apply to assessment rate and decreased crop is to express views on this issue. Finally, all assessable dried prunes handled expected to provide adequate income to interested persons are invited to submit during such crop year; (2) this action cover anticipated 2011–12 crop year comments on this interim rule, decreases the assessment rate for expenses. including the regulatory and assessable dried prunes beginning with

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the 2011–12 crop year; (3) handlers are and Vegetable Programs, AMS, USDA, ACTION: Final rule. aware of this action which was P.O. Box 831, Beavercreek, Oregon unanimously recommended by the 97004; telephone: (503) 632–8848; SUMMARY: The Food and Drug Committee at a public meeting and is facsimile (503) 632–8852; or electronic Administration (FDA) is amending the similar to other assessment rate actions mail: [email protected]. standing advisory committees’ regulations to change the name and issued in past years; and (4) this interim SUPPLEMENTARY INFORMATION: rule provides a 60-day comment period, function of the Anesthetic and Life and all comments timely received will Background Support Drugs Advisory Committee. be considered prior to finalization of This rule establishes a Softwood This action is being taken to reflect this rule. Lumber Research, Promotion, Consumer changes made to the charter for this Education and Industry Information advisory committee. List of Subjects in 7 CFR Part 993 Order (Order). The purpose of the Order DATES: Effective September 6, 2011. Marketing agreements, Plums, Prunes, is to strengthen the position of softwood FOR FURTHER INFORMATION CONTACT: Reporting and recordkeeping lumber in the marketplace, maintain Philip Bautista, Center for Drug requirements. and expand markets for softwood Evaluation and Research, Food and For the reasons set forth in the lumber, and develop new uses for Drug Administration, 10903 New preamble, 7 CFR part 993 is amended as softwood lumber within the United Hampshire Ave., Bldg. 31, Rm. 2417, follows: States. The Order is issued pursuant to Silver Spring, MD 20993–0002, 301– the Commodity Promotion, Research, 796–9001. PART 993—DRIED PRUNES and Information Act of 1996 (7 U.S.C. SUPPLEMENTARY INFORMATION: FDA is PRODUCED IN CALIFORNIA 7411–7425). announcing that the name of the Anesthetic and Life Support Drugs Corrections ■ 1. The authority citation for 7 CFR Advisory Committee, which was part 993 continues to read as follows: In FR Doc. 2011–19491, published established on May 1, 1978, has been August 2, 2011 (76 FR 46185), make the Authority: 7 U.S.C. 601–674. changed. The Agency decided that the following corrections. name ‘‘Anesthetic and Analgesic Drug ■ 2. Section 993.347 is revised to read 1. On page 46193, in column 2, the Products Advisory Committee’’ would as follows: words of issuance are corrected to read more accurately describe the subject as follows: § 993.347 Assessment rate. areas for which the committee is For the reasons set forth in the responsible. The mandate of the On and after August 1, 2011, an preamble, Title 7, Chapter XI of the committee is being expanded to include assessment rate of $0.22 per ton is Code of Federal Regulations is amended analgesics, e.g., abuse-deterrent opioids, established for California dried prunes. by adding subpart A to part 1217 to read novel analgesics, and opioid abuse. Dated: August 19, 2011. as follows: The Committee reviews and evaluates David R. Shipman, 2. On page 46194, column 1, the available data concerning the safety and Acting Administrator, Agricultural Marketing words ‘‘Subpart B—[Reserved]’’ are effectiveness of marketed and Service. removed. investigational human drug products 3. On page 46202 in column 1, including analgesics, e.g., abuse- [FR Doc. 2011–22119 Filed 8–29–11; 8:45 am] § 1217.88 is revised to read as follows: BILLING CODE 3410–02–P deterrent opioids, novel analgesics, and § 1217.88 OMB Control numbers. issues related to opioid abuse, and those The control numbers assigned to the for use in anesthesiology. The Anesthetic and Life Support DEPARTMENT OF AGRICULTURE information collection requirements by Drugs Advisory Committee name was the Office of Management and Budget Agricultural Marketing Service changed and its functions expanded in pursuant to the Paperwork Reduction the charter renewal dated June 9, 2011. Act of 1995, 44 U.S.C. Chapter 35, are 7 CFR Part 1217 FDA is hereby revising 21 CFR 14.100 OMB control number 0505–0001 (Board (c)(1) to reflect these changes. [Document Number AMS–FV–10–0015C; nominee background statement) and Publication of this final rule FR] OMB control number 0581–0264. constitutes a final action on this change RIN 0581–AD03 Dated: August 22, 2011. under the Administrative Procedure David R. Shipman, Act. Under 5 U.S.C. 553(b)(3)(B) and (d) Softwood Lumber Research, Acting Administrator. and 21 CFR 10.40(d) and (e), the Agency Promotion, Consumer Education and [FR Doc. 2011–22150 Filed 8–29–11; 8:45 am] finds good cause to dispense with notice Industry Information Order; Correction BILLING CODE 3410–02–P and public procedure and to proceed to an immediately effective regulation. AGENCY: Agricultural Marketing Service. Such notice and procedures are ACTION: Corrections to final rule. DEPARTMENT OF HEALTH AND unnecessary and are not in the public SUMMARY: This document contains HUMAN SERVICES interest, because the final rule is merely corrections to the final rule published codifying the new name and the on August 2, 2011 (76 FR 46185), Food and Drug Administration expanded function of the advisory regarding softwood lumber. Corrections committee to reflect the current are made in the amendatory instruction 21 CFR Part 14 committee charter. section and in § 1217.88 of the final [Docket No. FDA–2011–N–0002] List of Subjects in 21 CFR Part 14 rule. Administrative practice and DATES: Effective Date: August 31, 2011. Advisory Committee; Change of Name procedure, Advisory committees, Color and Function; Technical Amendment FOR FURTHER INFORMATION CONTACT: additives, Drugs, Radiation protection. Maureen T. Pello, Marketing Specialist, AGENCY: Food and Drug Administration, Therefore, under the Federal Food Research and Promotion Division, Fruit HHS. and Drug, and Cosmetic Act and under

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authority delegated to the Commissioner allow the Commission time to convene date of these amendments to October 12, of Food and Drugs, 21 CFR part 14 is a Tribal Advisory Committee (TAC), to 2012. The rule at § 543.3(c)(3) also set a amended as follows: receive and review input from the TAC, deadline of within six months of the and to thoroughly review comments date the tribal gaming regulatory PART 14—PUBLIC HEARING BEFORE from the public on any potential authorities’ enactment of tribal internal A PUBLIC ADVISORY COMMITTEE amendments to the regulations. controls for tribal operators to come into compliance with tribal internal controls. ■ 1. The authority citation for 21 CFR DATES: This rule is effective October 12, This deadline has likewise been part 14 continues to read as follows: 2012. The effective date for the amendments to §§ 542.7 and 542.16 in extended to October 12, 2012. Authority: 5 U.S.C. App. 2; 15 U.S.C. the final rule published October 10, 1451–1461; 21 U.S.C. 41–50, 141–149, 321– As explained in the preamble to the 394, 467f, 679, 821, 1034; 28 U.S.C. 2112; 42 2008 (73 FR 60492), delayed October 9, final rule (73 FR 60492 (October 10, U.S.C. 201, 262, 263b, 264; Pub. L. 107–109, 2009 (74 FR 52138) and September 10, 2008)), the Commission intended these Pub. L. 108–155. 2010 (75 FR 55269), is further delayed amendments to be the first part of a until October 12, 2012. Comments must ■ 2. Section 14.100 is amended by multi-phase process of establishing be received on or before October 25, revising the heading of paragraph (c)(1) separate MICS for class II gaming and 2011. and paragraph (c)(1)(ii) to read as that the extended effective date would follows: ADDRESSES: You may submit comments provide the necessary time to complete by any one of the following methods, this process. On October 9, 2009, the § 14.100 List of standing advisory however, please note that comments Commission extended the effective date committees. sent by electronic mail are strongly of the amendments until October 13, * * * * * encouraged. 2010, anticipating that all phases of the (c) * * * • E-mail comments to: process would then be complete and (1) Anesthetic and Analgesic Drug [email protected]. that a final comprehensive set of class Products Advisory Committee. • Mail comments to: Lael Echo-Hawk, II MICS would take effect at that time. * * * * * Counselor to the Chair, National Indian 74 FR 52138 (October 9, 2009). The (ii) Function: Reviews and evaluates Gaming Commission, 1441 L Street, newly appointed Commission approved data concerning the safety and NW., Suite 9100, Washington, DC an additional extension to delay the effectiveness of marketed and 20005. effective date of the amendments until investigational human drug products • Hand deliver comments to: 1441 L October 13, 2011, 75 FR 55269 including analgesics, e.g., abuse- Street, NW., Suite 9100, Washington, (September 10, 2010). The Commission deterrent opioids, novel analgesics, and DC 20005. then decided to create a Tribal Advisory issues related to opioid abuse, and those • Fax comments to: Lael Echo-Hawk, Committee to assist in the review of for use in anesthesiology. Counselor to the Chair, National Indian these rules. The NIGC is again extending * * * * * Gaming Commission at 202–632–0045. the effective date of these amendments to October 12, 2012 to allow time for the FOR FURTHER INFORMATION CONTACT: Lael Dated: August 25, 2011. transition as contemplated by the final Echo-Hawk, National Indian Gaming Jill Hartzler Warner, rule. Acting Associate Commissioner for Special Commission, 1441 L Street, NW., Suite Medical Programs. 9100, Washington, DC 20005. List of Subjects Telephone: 202–632–7009; e-mail: [FR Doc. 2011–22105 Filed 8–29–11; 8:45 am] 25 CFR Part 542 BILLING CODE 4160–01–P [email protected]. SUPPLEMENTARY INFORMATION: The Accounting, Gambling, Indians— Indian Gaming Regulatory Act (IGRA or lands, Reporting and recordkeeping DEPARTMENT OF THE INTERIOR Act), Public Law 100–497, 25 U.S.C. requirements. 2701 et seq., was signed into law on 25 CFR Part 543 National Indian Gaming Commission October 17, 1988. The Act establishes the National Indian Gaming Administrative practice and 25 CFR Parts 542 and 543 Commission (‘‘Commission’’) and sets procedure, Gambling, Indians—lands, out a comprehensive framework for the Reporting and recordkeeping Minimum Internal Control Standards regulation of gaming on Indian lands. requirements. for Class II Gaming The NIGC issued a final rule that For the reasons set forth above, under AGENCY: National Indian Gaming superseded specified sections of the authority at 25 U.S.C. 2701, 2702, Commission, Interior. established Minimum Internal Control Standards and replaced them with a 2706, et seq., the effective date for the ACTION: Final rule; delay of effective amendments to §§ 542.7 and 542.16 in date and request for comments. new part titled Minimum Internal Control Standards Class II Gaming, that the final rule published October 10, SUMMARY: The National Indian Gaming was published in the Federal Register 2008, 73 FR 60492, is delayed from Commission (‘‘NIGC’’) announces the on October 10, 2008 (73 FR 60492). The October 13, 2011, until October 12, 2012 delay of the effective date on the final final rule provided an effective date for and 25 CFR part 543.3 is amended as set rule for Minimum Internal Control amendments to §§ 542.7 and 542.16 of forth below: Standards for Class II Gaming. The final October 13, 2009. An extension delayed PART 543—MINIMUM INTERNAL rule was first published in the Federal the effective date of the amendments CONTROL STANDARDS FOR CLASS II Register on October 10, 2008. The until October 13, 2010. 74 FR 52138, GAMING Commission delayed the effective date October 9, 2009. An additional for portions of the final rule on October extension delayed the effective date of ■ 9, 2009, and September 10, 2010. With the amendments until October 13, 2011, 1. The authority citation for part 543 this document, the Commission further 75 FR 55269, September 10, 2010. The continues to read as follows: delays the effective date in order to NIGC is again extending the effective Authority: 25 U.S.C. 2701 et seq.

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■ 2. Section 543.3 is amended by Need for Correction Monday, July 18, 2011. These revising paragraph (c)(3) to read as As published July 18, 2011 (76 FR regulations provide guidance relating to follows: 42076), the notice of proposed the determination of the amount of taxes paid for purposes of the foreign tax § 543.3 How do tribal governments comply rulemaking by cross-reference to with this part? temporary regulations (REG–126519–11) credit. These regulations address certain highly structured transactions that * * * * * contains errors that may prove to be misleading and are in need of produce inappropriate foreign tax credit (c) * * * results. The regulations affect (3) Establish a deadline, no later than clarification. individuals and corporations that claim October 12, 2012, by which a gaming Correction of Publication direct and indirect foreign tax credits. operation must come into compliance with the tribal internal control Accordingly, the notice of proposed DATES: This correction is effective standards. However, the tribal gaming rulemaking by cross-reference to August 30, 2011, and is applicable regulatory authority may extend the temporary regulations (REG–126519– beginning July 18, 2011. deadline by six months if written notice 11), that was the subject of FR Doc. FOR FURTHER INFORMATION CONTACT: citing justification is provided to the 2011–17919, is corrected as follows: Jeffrey Cowan, (202) 622–3850 (not a Commission no later than two weeks Section 1.901–2 is amended by toll-free number). before the deadline. adding paragraphs (e)(5)(iv)(B)(1)(iii) SUPPLEMENTARY INFORMATION: and (h)(3) to read as follows: * * * * * Background Dated: August 24, 2011, Washington, DC. § 1.901–2 Income, war profits, or excess profits tax paid or accrued. The final and temporary regulations Tracie L. Stevens, (TD 9535) that is the subject of this Chairwoman. * * * * * correction are under section 901 of Steffani A. Cochran, (e) * * * Internal Revenue Code. Vice-Chairwoman. (5) * * * Need for Correction Daniel J. Little, (iv) * * * (B) * * * As published, TD 9535 contains an Associate Commissioner. (1) *** [FR Doc. 2011–22035 Filed 8–29–11; 8:45 am] error that may prove to be misleading (iii) [The text of proposed § 1.901– and is in need of clarification. BILLING CODE P 2(e)(5)(iv)(B)(1)(iii) is the same as the text of § 1.901–2T(e)(5)(iv)(B)(1)(iii) Correction of Publication published elsewhere in this issue of the Accordingly July 18, 2011 (76 FR DEPARTMENT OF THE TREASURY Federal Register.] 42038), the publication of the final and Internal Revenue Service * * * * * temporary regulations (TD 9535), that (h) * * * were the subject of FR Doc. 2011–17920, 26 CFR Part 1 (3) [The text of proposed § 1.901– is corrected as follows: 2(h)(3) is the same as the text of § 1.901– On page 42042, column 3, in the [REG–126519–11] 2T(h)(3) published elsewhere in this preamble under the caption ‘‘K. RIN 1545–BK41 issue of the Federal Register.] Effective Date’’, line 5, the language, ‘‘or after July 17, 2011.’’ is corrected to read Treena V. Garrett, Determining the Amount of Taxes Paid ‘‘or after July 13, 2011.’’. for Purposes of the Foreign Tax Credit; Federal Register Liaison, Publications and Regulations Branch, Legal Processing Correction Treena V. Garrett, Division, Associate Chief Counsel, Procedure Federal Register Liaison, Publications and AGENCY: Internal Revenue Service (IRS), and Administration. Regulations Branch, Legal Processing Treasury. [FR Doc. 2011–22067 Filed 8–29–11; 8:45 am] Division, Associate Chief Counsel (Procedure ACTION: Correction to notice of proposed BILLING CODE 4830–01–P and Administration). rulemaking by cross-reference to [FR Doc. 2011–22064 Filed 8–29–11; 8:45 am] temporary regulations. BILLING CODE 4830–01–P DEPARTMENT OF THE TREASURY SUMMARY: This document contains corrections to a notice of proposed Internal Revenue Service DEPARTMENT OF THE TREASURY rulemaking by cross-reference to temporary regulations that were 26 CFR Part 1 Internal Revenue Service published in the Federal Register on [TD 9535] Monday, July 18, 2011. These 26 CFR Part 1 RIN 1545–BK25 regulations address certain highly [TD 9536] structured arrangements that produce Determining the Amount of Taxes Paid inappropriate foreign tax credit results. RIN 1545–BK40 for Purposes of the Foreign Tax Credit; FOR FURTHER INFORMATION CONTACT: Correction Determining the Amount of Taxes Paid Jeffrey Cowan, (202) 622–3850 (not a for Purposes of the Foreign Tax Credit toll-free number). AGENCY: Internal Revenue Service (IRS), SUPPLEMENTARY INFORMATION: Treasury. AGENCY: Internal Revenue Service (IRS), Treasury. Background ACTION: Correction to final and temporary regulations. ACTION: Correction to final and The notice of proposed rulemaking by temporary regulations. cross-reference to temporary regulations SUMMARY: This document contains a (REG–126519–11) that is the subject of correction to final and temporary SUMMARY: This document contains a this correction is under section 901 of regulations (TD 9535), that were correction to final and temporary the Internal Revenue Code. published in the Federal Register on regulations (TD 9536) that were

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published in the Federal Register on SUMMARY: This document contains § 1.901–2T Income, war profits, or excess Monday, July 18, 2011, providing amendments to correct errors in final profits tax paid or accrued. guidance relating to the determination and temporary regulations (TD 9536) (a) through (e)(5)(iv)(B)(1)(ii) of the amount of taxes paid for purposes that were published in the Federal [Reserved]. For further guidance, see of the foreign tax credit. These Register on Monday, July 18, 2011, § 1.901–2(a) through (e)(5)(iv)(B)(1)(ii). regulations address certain highly providing guidance relating to the (iii) A foreign payment attributable to structured arrangements that produce determination of the amount of taxes income of the entity, within the inappropriate foreign tax credit results. paid for purposes of the foreign tax meaning of § 1.901–2(e)(5)(iv)(B)(1)(ii), The regulations affect individuals and credit. These regulations address certain also includes a withholding tax (within corporations that claim direct and highly structured arrangements that the meaning of section 901(k)(1)(B)) indirect foreign tax credits. produce inappropriate foreign tax credit imposed on a dividend or other DATES: This correction is effective results. The regulations affect distribution (including distributions August 30, 2011, and is applicable individuals and corporations that claim made by a pass-through entity or an beginning July 18, 2011. direct and indirect foreign tax credits. entity that is disregarded as an entity FOR FURTHER INFORMATION CONTACT: DATES: This correction is effective on separate from its owner for U.S. tax Jeffrey Cowan, (202) 622–3850 (not a August 30, 2011 and is applicable purposes) with respect to the equity of toll-free number). beginning July 18, 2011. the entity. (2) through (h)(2) [Reserved]. For SUPPLEMENTARY INFORMATION: FOR FURTHER INFORMATION CONTACT: Jeffery Cowan, (202) 622–3850 (not a further guidance, see § 1.901– Background toll-free number). 2(e)(5)(iv)(B)(2) through (h)(2). (h)(3) Effective/applicability date. The temporary and final regulation SUPPLEMENTARY INFORMATION: This section applies to foreign payments (TD 9536) that is the subject of this Background that, if such payments were an amount correction is under section 901 of the of tax paid, would be considered paid Internal Revenue Code. The temporary and final regulation (TD 9536) that is the subject of this or accrued under § 1.901–2(f) on or after Need for Correction correction is under section 901 of the July 14, 2011. As published July 18, 2011 (76 FR Internal Revenue Code. (h)(4) Expiration date. The applicability of this section expires on 42036), TD 9536 contains an error that Need for Correction may prove to be misleading and is in July 14, 2014. need of clarification. As published July 18, 2011 (76 FR 42036), TD 9536 contains errors that Treena V. Garrett, Correction of Publication may prove to be misleading and is in Federal Register Liaison, Publication and need of clarification. Regulations Branch, Legal Processing Accordingly, the publication of the Division, Associate Chief Counsel, (Procedure final and temporary regulations (TD List of Subjects in 26 CFR Part 1 and Administration). 9536), that were the subject of FR Doc. Income taxes, Reporting and [FR Doc. 2011–22065 Filed 8–29–11; 8:45 am] 2011–17916, is corrected as follows: recordkeeping requirements. BILLING CODE 4830–01–P On page 42037, column 2, in the preamble under the caption Correction of Publication ‘‘Explanation of Provision’’, first Accordingly, 26 CFR part 1 is DEPARTMENT OF THE TREASURY paragraph, tenth line from the bottom, corrected by making the following Internal Revenue Service the language, ‘‘2(e)(5)(iv)(B)(1)(iii) that a correcting amendments: foreign’’ is corrected to read ‘‘2T(e)(5)(iv)(B)(1)(iii) that a foreign’’. PART 1—INCOME TAXES 26 CFR Part 1 Treena V. Garrett, ■ Paragraph 1. The authority citation [TD 9534] Federal Register Liaison, Publications and for part 1 continues to read in part as Regulations Branch, Legal Processing follows: Division, Associate Chief Counsel, (Procedure RIN 1545–BD81 and Administration). Authority: 26 U.S.C. 7805 * * * [FR Doc. 2011–22066 Filed 8–29–11; 8:45 am] ■ Par. 2. Section 1.901–2 is amended by Methods of Accounting Used by Corporations That Acquire the Assets BILLING CODE 4830–01–P adding paragraphs (e)(5)(iv)(B)(1)(iii) and (h)(3) to read as follows: of Other Corporations; Correction AGENCY: Internal Revenue Service (IRS), DEPARTMENT OF THE TREASURY § 1.901–2 Income, war profits, or excess profits tax paid or accrued. Treasury. Internal Revenue Service * * * * * ACTION: Correction to final regulations. (e) * * * 26 CFR Part 1 (5) * * * SUMMARY: This document describes (iv) * * * corrections to final regulations (TD [TD 9536] (B) * * * 9534) relating to the methods of (1) *** accounting, including the inventory RIN 1545–BK40 (iii) [Reserved]. For further guidance, methods, to be used by corporations that see § 1.901–2T(e)(5)(iv)(B)(1)(iii). acquire the assets of other corporations Determining the Amount of Taxes Paid * * * * * in certain corporate reorganizations and for Purposes of the Foreign Tax Credit (h) * * * tax-free liquidations. These regulations were published in the Federal Register AGENCY: Internal Revenue Service (IRS), (3) [Reserved]. For further guidance, on Monday, August 1, 2011. Treasury. see § 1.901–2T(h)(3). ■ Par. 3. Section 1.901–2T is added to DATES: This correction is effective on ACTION: Correcting amendment. read as follows: August 31, 2011.

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FOR FURTHER INFORMATION CONTACT: ACTION: Temporary final rule; change of longitude to the confluence with the Cheryl Oseekey, (202) 622–4970 (not a effective period. Mississippi River at 90.11 degrees West toll-free number). longitude and extending the entire SUMMARY: The Coast Guard is extending SUPPLEMENTARY INFORMATION: width of the river, which is currently set the effective period for the temporary to expire on August 30, 2011. This Background safety zone on the specified waters of extension is necessary to continue The final regulations (TD 9534) that the Missouri River from the Montana uninterrupted protection of levees and are the subject of this correction are and North Dakota border to the personnel involved in ongoing high under sections 381 and 446 of the confluence with the Mississippi River, water response. Internal Revenue Code. extending the entire width of the river. Failing to extend the effective dates Temporary section 33 CFR 165.T11– for this rule pending completion of Need for Correction 0511, which established the temporary notice and comment rulemaking is As published on August 1, 2011 (76 safety zone, was set to expire August 30, impracticable and contrary to the public FR 45673), the final regulations (TD 2011. Extending the effective period for interest because it would cause a gap in 9534) contain errors that may prove to this safety zone provides continued and the ability to enforce the needed safety be misleading and are in need of uninterrupted protection of levees and zone for protection of all responders, the clarification. personnel involved in ongoing high response efforts, and the environment. water response. Continuing the safety For the same reasons, under 5 U.S.C. Correction of Publication zone will significantly reduce the threat 553(d)(3), the Coast Guard finds that Accordingly, the publication of the of destruction to levees and vessels and good cause exists for making this rule final regulations (TD 9534), which were tows. effective less than 30 days after the subject of FR Doc. 2011–19256, is DATES: Section 165.T11–0511 publication in the Federal Register. corrected as follows: temporarily added at 76 FR 37647, June Basis and Purpose 28, 2011, effective from June 2, 2011 to § 1.381(c)(5)–1 [Corrected] August 30, 2011, will continue in effect The safety zone in place pursuant to ■ 1. On page 45683, column 1, through October 31, 2011. the temporary final Rule at docket USCG–2011–0511 (76 FR 37647) § 1.381(c)(5)–1(b), first line of the ADDRESSES: Documents indicated in this established a safety zone for the record paragraph, the language ‘‘(b) Definitions. preamble as being available in the flooding on the Missouri River from (1) Inventory method.’’ is corrected to docket are part of docket USCG–2011– June 2, 2011 through August 30, 2011. read ‘‘(b) Definitions. For purposes of 0511 and are available online by going The safety zone was enforced through this section—(1) Inventory method.’’. to http://www.regulations.gov, inserting actual notice from June 2, 2011 until ■ USCG–2011–0511 in the ‘‘Keyword’’ 2. On page 45685, column 1, June 28, 2011, when the rule published box, and then clicking ‘‘Search.’’ They § 1.381(c)(5)–1(c)(3) Example (6).(i), in the Federal Register to ensure are also available for inspection or third sentence of the paragraph, the seamless protection of those involved in copying at the Docket Management language ‘‘X Corporation’s the response efforts. This rule extends Facility (M–30), U.S. Department of manufacturing business and T the effective dates of the temporary Transportation, West Building Ground Corporation’s manufacturing business safety zone on the Missouri River from Floor, Room W12–140, 1200 New Jersey use, the same methods to capitalize the border between Montana and North Avenue, SE., Washington, DC 20590, costs under section 263A.’’ is corrected Dakota at 104.05 degrees west longitude between 9 a.m. and 5 p.m., Monday to read ‘‘X Corporation’s manufacturing to the confluence with the Mississippi through Friday, except Federal holidays. business and T Corporation’s River at 90.11 degrees West longitude manufacturing business use the same FOR FURTHER INFORMATION CONTACT: If and extending the entire width of the methods to capitalize costs under you have questions about this notice, river, which is currently set to expire on section 263A.’’. call or e-mail Lieutenant Commander August 30, 2011. The temporary safety (LCDR) Scott Stoermer, Sector Upper LaNita Van Dyke, zone created by this rule ensures that Mississippi River, Coast Guard at (314) there is no gap in authority to protect all Chief, Publications and Regulations Branch, 269–2540 or [email protected]. Legal Processing Division, Associate Chief responders, levees, and tow boats and Counsel, (Procedure and Administration). SUPPLEMENTARY INFORMATION: tows. [FR Doc. 2011–22051 Filed 8–29–11; 8:45 am] Regulatory Information Discussion of Rule BILLING CODE 4830–01–P The Coast Guard is issuing this The Coast Guard is extending the temporary final rule without prior effective date of a safety zone notice and opportunity to comment encompassing the entire Missouri River DEPARTMENT OF HOMELAND pursuant to authority under section 4(a) from the border between Montana and SECURITY of the Administrative Procedure Act North Dakota at 104.05 degrees west (APA) (5 U.S.C. 553(b)). This provision longitude to the confluence with the Coast Guard authorizes an agency to issue a rule Mississippi River at 90.11 degrees West without prior notice and opportunity to longitude and extending the entire 33 CFR Part 165 comment when the agency for good width of the river. cause finds that those procedures are During enforcement periods, vessels [Docket No. USCG–2011–0511] ‘‘impracticable, unnecessary, or contrary and tows may not enter this zone unless to the public interest.’’ Under 5 U.S.C. authorized by the Captain of the Port RIN 1625–AA00 553(b)(B), the Coast Guard finds that Sector Upper Mississippi River. Safety Zone; Missouri River From the good cause exists for not publishing an Emergency response boats or vessels Border Between Montana and North NPRM. This rule extends the existing may enter these waters when Dakota temporary safety zone on the Missouri responding to emergent situations on or River from the border between Montana near the river. The Captain of the Port AGENCY: Coast Guard, DHS. and North Dakota at 104.05 degrees west Sector Upper Mississippi River will

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inform the public through broadcast representative, for passage through the more in any one year. Though this rule notices to mariners and/or marine safety Safety Zone. Passage through the safety will not result in such an expenditure, information bulletins when enforcement zone will be evaluated on a case-by-case we do discuss the effects of this rule periods are in place and of all safety basis to minimize impact and protect elsewhere in this preamble. zone changes. When enforcement is the general public, levee system, vessels Taking of Private Property implemented, vessels currently in the from destruction, and loss or injury due safety zone will be provided to the hazards associated with rising This rule will not cause a taking of opportunity to safely exit the restricted flood water. If you are a small business private property or otherwise have area. entity and are significantly affected by taking implications under Executive Order 12630, Governmental Actions and Regulatory Analyses this regulation, please contact LCDR Scott Stoermer, Sector Upper Interference with Constitutionally We developed this rule after Mississippi River, Coast Guard at (314) Protected Property Rights. considering numerous statutes and 269–2540. executive orders related to rulemaking. Civil Justice Reform Below we summarize our analyses Assistance for Small Entities This rule meets applicable standards based on 13 of these statutes or Under section 213(a) of the Small in sections 3(a) and 3(b)(2) of Executive executive orders. Business Regulatory Enforcement Order 12988, Civil Justice Reform, to minimize litigation, eliminate Regulatory Planning and Review Fairness Act of 1996 (Pub. L. 104–121), we offer to assist small entities in ambiguity, and reduce burden. This rule is not a significant understanding the rule so that they can Protection of Children regulatory action under section 3(f) of better evaluate its effects on them and Executive Order 12866, Regulatory participate in the rulemaking process. We have analyzed this rule under Planning and Review, as supplemented Small businesses may send comments Executive Order 13045, Protection of by Executive Order 13563, Improving on the actions of Federal employees Children from Environmental Health Regulation and Regulatory Review, and who enforce, or otherwise determine Risks and Safety Risks. This rule is not does not require an assessment of compliance with, Federal regulations to an economically significant rule and potential costs and benefits under the Small Business and Agriculture does not create an environmental risk to section 6(a)(3) of that Executive Order Regulatory Enforcement Ombudsman health or risk to safety that may 12866 or under section 1 of Executive and the Regional Small Business disproportionately affect children. Order 13563. The Office of Management Regulatory Fairness Boards. The Indian Tribal Governments and Budget has not reviewed it under Ombudsman evaluates these actions that those Orders. annually and rates each agency’s This rule does not have tribal Notifications to the marine responsiveness to small business. If you implications under Executive Order community will be made through wish to comment on actions by 13175, Consultation and Coordination broadcast notices to mariners and/or employees of the Coast Guard, call with Indian Tribal Governments, marine safety information bulletins. 1–888–REG–FAIR (1–888–734–3247). because it does not have a substantial Vessels requiring entry into or passage The Coast Guard will not retaliate direct effect on one or more Indian through the Safety Zone may request against small entities that question or tribes, on the relationship between the permission from the Captain of the Port complain about this rule or any policy Federal Government and Indian tribes, Sector Upper Mississippi, or a or action of the Coast Guard. or on the distribution of power and designated representative and entry will responsibilities between the Federal be evaluated on a case-by-case basis to Collection of Information Government and Indian tribes. minimize impact and protect the general This rule calls for no new collection Energy Effects public, levee system, vessels from of information under the Paperwork destruction, and loss or injury due to Reduction Act of 1995 (44 U.S.C. 3501– We have analyzed this rule under the hazards associated with rising flood 3520). Executive Order 13211, Actions water. The impacts on routine Concerning Regulations That navigation are expected to be minimal. Federalism Significantly Affect Energy Supply, A rule has implications for federalism Distribution, or Use. We have Small Entities under Executive Order 13132, determined that it is not a ‘‘significant Under the Regulatory Flexibility Act Federalism, if it has a substantial direct energy action’’ under that order because (5 U.S.C. 601–612), we have considered effect on State or local governments and it is not a ‘‘significant regulatory action’’ whether this rule would have a would either preempt State law or under Executive Order 12866 and is not significant economic impact on a impose a substantial direct cost of likely to have a significant adverse effect substantial number of small entities. compliance on them. We have analyzed on the supply, distribution, or use of The term ‘‘small entities’’ comprises this rule under that Order and have energy. The Administrator of the Office small businesses, not-for-profit determined that it does not have of Information and Regulatory Affairs organizations that are independently implications for federalism. has not designated it as a significant owned and operated and are not energy action. Therefore, it does not dominant in their fields, and Unfunded Mandates Reform Act require a Statement of Energy Effects governmental jurisdictions with The Unfunded Mandates Reform Act under Executive Order 13211. populations of less than 50,000. of 1995 (2 U.S.C. 1531–1538) requires This temporary safety zone is not Federal agencies to assess the effects of Technical Standards expected to have a significant economic their discretionary regulatory actions. In The National Technology Transfer impact on a substantial number of small particular, the Act addresses actions and Advancement Act (NTTAA) (15 entities because vessels may request that may result in the expenditure by a U.S.C. 272 note) directs agencies to use permission to transit the area from the State, local, or tribal government, in the voluntary consensus standards in their Captain of the Port Sector Upper aggregate, or by the private sector of regulatory activities unless the agency Mississippi, or a designated $100,000,000 (adjusted for inflation) or provides Congress, through the Office of

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Management and Budget, with an ■ 2. Section 165.T11–0511 temporarily between 8 a.m. and 3:30 p.m., Monday explanation of why using these added at 76 FR 37647, 28 June 2011, through Friday, except Federal holidays. standards would be inconsistent with effective from June 2, 2011 to August 30, FOR FURTHER INFORMATION CONTACT: If applicable law or otherwise impractical. 2011, will continue in effect through you have questions on this temporary Voluntary consensus standards are October 31, 2011. rule, call or e-mail LT Lenell J. Carson, technical standards (e.g., specifications Dated: August 18, 2011. Coast Guard Sector Mobile, Waterways of materials, performance, design, or B.L. Black, Division; telephone 251–441–5940 or operation; test methods; sampling Captain, U.S. Coast Guard, Captain of the e-mail [email protected]. If you procedures; and related management Port Sector Upper Mississippi River. have questions on viewing the docket, systems practices) that are developed or call Renee V. Wright, Program Manager, adopted by voluntary consensus [FR Doc. 2011–22198 Filed 8–29–11; 8:45 am] BILLING CODE 9110–04–P Docket Operations, telephone 202–366– standards bodies. 9826. This rule does not use technical SUPPLEMENTARY INFORMATION: standards. Therefore, we did not DEPARTMENT OF HOMELAND consider the use of voluntary consensus SECURITY Regulatory Information standards. Coast Guard The Coast Guard is issuing this Environment temporary final rule without prior We have analyzed this rule under 33 CFR Part 165 notice and opportunity to comment Department of Homeland Security pursuant to authority under section 4(a) Management Directive 023–01 and [Docket No. USCG–2011–0709] of the Administrative Procedure Act Commandant Instruction M16475.lD, RIN 1625–AA00 (APA) (5 U.S.C. 553(b)). This provision which guide the Coast Guard in authorizes an agency to issue a rule complying with the National Safety Zone; Labor Day at the Landing without prior notice and opportunity to Environmental Policy Act of 1969 Santa Rosa Sound, Fort Walton Beach, comment when the agency for good (NEPA) (42 U.S.C. 4321–4370f), and FL cause finds that those procedures are have concluded this action is one of a ‘‘impracticable, unnecessary, or contrary AGENCY: Coast Guard, DHS. category of actions that do not to the public interest.’’ Under 5 U.S.C. individually or cumulatively have a ACTION: Temporary final rule. 553(b)(B), the Coast Guard finds that significant effect on the human good cause exists for not publishing a SUMMARY: The Coast Guard is environment. This rule is categorically notice of proposed rulemaking (NPRM) establishing a temporary safety zone for excluded, under figure 2–1, paragraph with respect to this rule because there a portion of the Santa Rosa Sound in (34)(g), of the Instruction, from further is insufficient time to publish a NPRM. Fort Walton Beach, Florida extending environmental documentation since The Coast Guard received an 150 yards around a fireworks barge that implementation of this action will not application for a Marine Event Permit will be positioned between Fort Walton result in any significant cumulative on July 11, 2011, from the Greater Fort Beach Landing and the Gulf Intracoastal impacts on the human environment; Walton Beach Chamber of Commerce, Waterway. This action is necessary for does not involve a substantial change to noting their intention to hold their the protection of persons and vessels on existing environmental conditions; and Labor Day at the Landing fireworks navigable waters during Fort Walton is consistent with Federal, State, and/or display on September 4, 2011. Beach’s Labor Day at the Landing local laws or administrative Publishing a NPRM is impracticable fireworks display. Entry into, transiting determinations relating to the because it would unnecessarily delay or anchoring in this zone is prohibited environment. This rule involves the required safety zone’s effective date. to all vessels, mariners, and persons establishing a temporary safety zone. The safety zone is needed to protect unless specifically authorized by the Pursuant to paragraph (34)(g) of the persons and vessels from safety hazards Captain of the Port (COTP) Mobile or a associated with the fireworks display Instruction, an environmental checklist designated representative. and a categorical exclusion checklist are and will be enforced with actual notice DATES: This rule is effective from 8:15 available in the docket indicated under during a short period of time. p.m. until 9:15 p.m. on September 4, ADDRESSES. Under 5 U.S.C. 553(d)(3), the Coast 2011. Guard finds that good cause exists for List of Subjects in 33 CFR Part 165 ADDRESSES: Documents indicated in this making this rule effective less than Harbors, Marine safety, Navigation preamble as being available in the 30 days after publication in the Federal (water), Reporting and recordkeeping docket are part of docket USCG–2011– Register. The Coast Guard received an requirements, Security measures, 0709 and are available online by going application for a Marine Event Permit Waterways. to http://www.regulations.gov, inserting on July 11, 2011, from the Greater Fort For the reasons discussed in the USCG–2011–0709 in the ‘‘Keyword’’ Walton Beach Chamber of Commerce, preamble, the Coast Guard amends 33 box, and then clicking ‘‘Search.’’ They noting their intention to hold their CFR part 165 as follows: are also available for inspection or Labor Day at the Landing fireworks copying at the Docket Management display on September 4, 2011. PART 165—SAFETY ZONES Facility (M–30), U.S. Department of Additionally, this rule is temporary and Transportation, West Building Ground will only be enforced for a short period ■ 1. The authority citation for part 165 Floor, Room W12–140, 1200 New Jersey while the fireworks display is taking continues to read as follows: Avenue, SE., Washington, DC 20590, place. Providing a 30 day notice period Authority: 33 U.S.C. 1231; 46 U.S.C. between 9 a.m. and 5 p.m., Monday would unnecessarily delay the effective Chapter 701, 3306, 3703; 50 U.S.C. 191, 195; through Friday, except Federal holidays date and is impracticable because 33 CFR 1.05–1, 6.04–1, 6.04–6, 160.5; Pub. L. and U.S. Coast Guard Sector Mobile immediate action is needed to protect 107–295, 116 Stat. 2064; Department of (spw), Building 102, Brookley Complex persons and vessels from safety hazards Homeland Security Delegation No. 0170.1. South Broad Street, Mobile, AL 36615, associated with the fireworks display.

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Basis and Purpose and Budget has not reviewed it under and the Regional Small Business The Greater Fort Walton Beach that those Orders. Regulatory Fairness Boards. The Chamber of Commerce applied for a The temporary safety zone listed in Ombudsman evaluates these actions Marine Event Permit to conduct a this rule will restrict vessel traffic from annually and rates each agency’s fireworks display on the Santa Rosa entering, transiting or anchoring in a responsiveness to small business. If you Sound, in Fort Walton Beach, Florida small portion of the Santa Rosa Sound wish to comment on actions by from 8:15 p.m. until 9:15 p.m. on during a short period of time. The effect employees of the Coast Guard, call September 4, 2011. This event will draw of this regulation will not be significant 1–888–REG–FAIR (1–888–734–3247). in a large number of pleasure crafts and for several reasons: (1) This rule will The Coast Guard will not retaliate the fireworks display poses a significant only affect vessel traffic for a short against small entities that question or safety hazard to both vessels and duration; (2) vessels may request complain about this rule or any policy mariners operating in or near the area. permission from the COTP to transit or action of the Coast Guard. through the safety zone; and (3) the The COTP Mobile is establishing a Collection of Information temporary safety zone for a portion of impacts on routine navigation are the Santa Rosa Sound, Ft. Walton expected to be minimal. Notifications to This calls for no new collection of Beach, Florida, to protect persons and the marine community will be made information under the Paperwork vessels during the fireworks display. through local notice to mariners and Reduction Act of 1995 (44 U.S.C. 3501– The COTP anticipates minimal impact broadcast notice to mariners. These 3520). on vessel traffic due to this regulation. notifications will allow the public to Federalism However, this safety zone is deemed plan operations around the affected necessary for the protection of life and area. A rule has implications for federalism property within the COTP Mobile zone. Small Entities under Executive Order 13132, Federalism, if it has a substantial direct Discussion of Rule Under the Regulatory Flexibility Act effect on State or local governments and (5 U.S.C. 601–612), we have considered The Coast Guard is establishing a would either preempt State law or whether this rule would have a temporary safety zone for a portion of impose a substantial direct cost of significant economic impact on a the Santa Rosa Sound in Fort Walton compliance on them. We have analyzed substantial number of small entities. Beach, Florida extending 150 yards this rule under that Order and have The term ‘‘small entities’’ comprises around a fireworks barge that will be determined that it does not have small businesses, not-for-profit positioned between Fort Walton Beach implications for federalism. Landing and the Gulf Intracoastal organizations that are independently Waterway. This temporary safety zone owned and operated and are not Unfunded Mandates Reform Act dominant in their fields, and will protect the safety of life and The Unfunded Mandates Reform Act governmental jurisdictions with property in this area. Entry into, of 1995 (2 U.S.C. 1531–1538) requires populations of less than 50,000. transiting or anchoring in this zone is Federal agencies to assess the effects of prohibited to all vessels, mariners, and The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have their discretionary regulatory actions. In persons unless specifically authorized particular, the Act addresses actions by the COTP Mobile or a designated a significant economic impact on a substantial number of small entities. that may result in the expenditure by a representative. The COTP may be State, local, or tribal government, in the contacted by telephone at 251–441– This rule will affect the following entities, some of which may be small aggregate, or by the private sector of 5976. $100,000,000 (adjusted for inflation) or The COTP Mobile or a designated entities: the owners or operators of more in any one year. Though this rule representative will inform the public vessels intending to transit or anchor in will not result in such expenditure, we through broadcast notice to mariners of affected portions of the Santa Rosa do discuss the effects of this rule changes in the effective period and Sound during the fireworks display. elsewhere in this preamble. enforcement times for the safety zone. This safety zone will not have a This rule is effective from 8:15 p.m. significant economic impact on a Taking of Private Property until 9:15 p.m. on September 4, 2011. substantial number of small entities for the following reasons. The zone is This rule will not cause a taking of Regulatory Analyses limited in size, is of short duration and private property or otherwise have We developed this rule after vessel traffic may request permission taking implications under Executive considering numerous statutes and from the COTP Mobile or a designated Order 12630, Governmental Actions and executive orders related to rulemaking. representative to enter or transit through Interference with Constitutionally Below we summarize our analyses the zone. Protected Property Rights. based on 13 of these statutes or Civil Justice Reform executive orders. Assistance for Small Entities Under section 213(a) of the Small This rule meets applicable standards Regulatory Planning and Review Business Regulatory Enforcement in sections 3(a) and 3(b)(2) of Executive This rule is not a significant Fairness Act of 1996 (Pub. L. 104–121), Order 12988, Civil Justice Reform, to regulatory action under section 3(f) of we offer to assist small entities in minimize litigation, eliminate Executive Order 12866, Regulatory understanding the rule so that they can ambiguity, and reduce burden. Planning and Review, as supplemented better evaluate its effects on them and Protection of Children by Executive Order 13563, Improving participate in the rulemaking process. Regulation and Regulatory Review, and Small businesses may send comments We have analyzed this rule under does not require an assessment of on the actions of Federal employees Executive Order 13045, Protection of potential costs and benefits under who enforce, or otherwise determine Children from Environmental Health section 6(a)(3) of that Executive Order compliance with, Federal regulations to Risks and Safety Risks. This rule is not 12866 or under section 1 of Executive the Small Business and Agriculture an economically significant rule and Order 13563. The Office of Management Regulatory Enforcement Ombudsman does not create an environmental risk to

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health or risk to safety that may category of actions which do not commissioned, warrant, and petty disproportionately affect children. individually or cumulatively have a officers of the U.S. Coast Guard. significant effect on the human (d) Informational Broadcasts: The Indian Tribal Governments environment. This rule is categorically Captain of the Port or a designated This rule does not have tribal excluded, under figure 2–1, paragraph representative will inform the public implications under Executive Order (34)(g), of the Instruction. This rule through broadcast notices to mariners of 13175, Consultation and Coordination involves safety for the public and the enforcement period for the safety with Indian Tribal Governments, environment and is not expected to zone as well as any changes in the because it does not have a substantial result in any significant adverse planned schedule. direct effect on one or more Indian environmental impact as described in Dated: August 4, 2011. tribes, on the relationship between the NEPA. An environmental analysis D.J. Rose, Federal Government and Indian tribes, checklist and a categorical exclusion or on the distribution of power and Captain, U.S. Coast Guard, Captain of the determination are available as directed Port Mobile. responsibilities between the Federal under the ADDRESSES section. Government and Indian tribes. [FR Doc. 2011–22073 Filed 8–29–11; 8:45 am] List of Subjects in 33 CFR Part 165 BILLING CODE 9110–04–P Energy Effects Harbors, Marine safety, Navigation We have analyzed this rule under (water), Reporting and recordkeeping Executive Order 13211, Actions DEPARTMENT OF HOMELAND requirements, Security measures, SECURITY Concerning Regulations That Waterways. Significantly Affect Energy Supply, Coast Guard Distribution, or Use. We have For the reasons discussed in the preamble, the Coast Guard amends 33 determined that it is not a ‘‘significant 33 CFR Part 165 energy action’’ under that order because CFR part 165 as follows: [Docket No. USCG–2011–0195] it is not a ‘‘significant regulatory action’’ PART 165—REGULATED NAVIGATION under Executive Order 12866 and is not AREAS AND LIMITED ACCESS AREAS RIN 1625–AA00 likely to have a significant adverse effect on the supply, distribution, or use of ■ 1. The authority citation for part 165 Safety Zone; 2011 Rohto Ironman 70.3 energy. The Administrator of the Office continues to read as follows: Miami, Biscayne Bay, Miami, FL of Information and Regulatory Affairs Authority: 33 U.S.C. 1231; 46 U.S.C. AGENCY: has not designated it as a significant Coast Guard, DHS. Chapter 701, 3306, 3703; 50 U.S.C. 191, 195; ACTION: Temporary final rule. energy action. Therefore, it does not 33 CFR 1.05–1, 6.04–1, 6.04–6, 160.5; Pub. L. require a Statement of Energy Effects 107–295, 116 Stat. 2064; Department of SUMMARY: The Coast Guard is under Executive Order 13211. Homeland Security Delegation No. 0170.1. establishing a temporary safety zone on Technical Standards ■ 2. Add § 165.T08–0709 to read as Biscayne Bay, east of Bayfront Park, in Miami, Florida during the 2011 Rohto The National Technology Transfer follows: Ironman 70.3 Miami, a triathlon. The and Advancement Act (NTTAA) (15 § 165.T08–0709 Safety Zone; Labor Day at Rohto Ironman 70.3 Miami is scheduled U.S.C. 272 note) directs agencies to use the Landing Santa Rosa Sound, Fort Walton to take place on Sunday, October 30, voluntary consensus standards in their Beach, FL. 2011. The temporary safety zone is regulatory activities unless the agency necessary for the safety of race provides Congress, through the Office of (a) Location. The following area is a participants, participant vessels, and the Management and Budget, with an safety zone: A portion of the Santa Rosa general public during the 1.2 mile swim explanation of why using these Sound in Fort Walton Beach, FL portion of this competition. Persons and standards would be inconsistent with extending 150 yards around the vessels are prohibited from entering, applicable law or otherwise impractical. fireworks barge positioned between Fort transiting through, anchoring in, or Voluntary consensus standards are Walton Beach Landing and the Gulf remaining within the safety zone unless technical standards (e.g., specifications Intracoastal Waterway. authorized by the Captain of the Port of materials, performance, design, or (b) Enforcement dates. This rule will Miami or a designated representative. operation; test methods; sampling be enforced from 8:15 p.m. until procedures; and related management 9:15 p.m. on September 4, 2011. DATES: This rule is effective from 6:45 systems practices) that are developed or (c) Regulations. (1) In accordance with a.m. until 10 a.m. on October 30, 2011. adopted by voluntary consensus the general regulations in 33 CFR part ADDRESSES: Comments and material standards bodies. 165, subpart C, entry into this zone is received from the public, as well as This rule does not use technical prohibited unless authorized by the documents mentioned in this preamble standards. Therefore, we did not Captain of the Port Mobile or a as being available in the docket, are part consider the use of voluntary consensus designated representative. of docket USCG–2011–0195 and are standards. (2) Vessels desiring to enter into or available online by going to http:// passage through the zone must request www.regulations.gov, inserting USCG– Environment permission from the Captain of the Port 2011–0195 in the ‘‘Keyword’’ box, and We have analyzed this rule under Mobile or a designated representative. then clicking ‘‘Search.’’ This material is Department of Homeland Security They may be contacted on VHF–FM also available for inspection or copying Management Directive 023–01 and channels 16 or by telephone at 251– at the Docket Management Facility (M– Commandant Instruction M16475.lD, 441–5976. 30), U.S. Department of Transportation, which guide the Coast Guard in (3) If permission is granted, all West Building Ground Floor, Room complying with the National persons and vessels shall comply with W12–140, 1200 New Jersey Avenue, SE., Environmental Policy Act of 1969 the instructions of the Captain of the Washington, DC 20590, between 9 a.m. (NEPA) (42 U.S.C. 4321–4370f), and Port or designated representative. and 5 p.m., Monday through Friday, have concluded this action is one of a Designated representatives include except Federal holidays.

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FOR FURTHER INFORMATION CONTACT: If Regulatory Analyses the Executive Order 12866 and you have questions on this temporary We developed this rule after Executive Order 13563 section above, rule, call or e-mail Lieutenant Jennifer considering numerous statutes and this rule will not have a significant S. Makowski, Sector Miami Prevention executive orders related to rulemaking. economic impact on a substantial Department, Coast Guard; telephone Below we summarize our analyses number of small entities. 305–535–8724, e-mail based on 13 of these statutes or Assistance for Small Entities [email protected]. If you executive orders. have questions on viewing the docket, Under section 213(a) of the Small Executive Order 12866 and Executive call Renee V. Wright, Program Manager, Business Regulatory Enforcement Order 13563 Docket Operations, telephone 202–366– Fairness Act of 1996 (Pub. L. 104–121), 9826. This rule is not a significant in the NPRM we offered to assist small SUPPLEMENTARY INFORMATION: regulatory action under section 3(f) of entities in understanding the rule so Executive Order 12866, Regulatory that they could better evaluate its effects Regulatory Information Planning and Review, as supplemented on them and participate in the On May 3, 2011, we published a by Executive Order 13563, and does not rulemaking process. require an assessment of potential costs notice of proposed rulemaking (NPRM) Small businesses may send comments and benefits under section 6(a)(3) of that entitled Safety Zone; 2011 Rohto on the actions of Federal employees Ironman 70.3 Miami, Biscayne Bay, Order. The Office of Management and Budget has not reviewed it under that who enforce, or otherwise determine Miami, FL in the Federal Register (76 compliance with, Federal regulations to FR 24840). We received no comments Order. The economic impact of this rule is the Small Business and Agriculture on the proposed rule. No public meeting Regulatory Enforcement Ombudsman was requested, and none was held. not significant for the following reasons: (1) The safety zone will be in effect for and the Regional Small Business Basis and Purpose just over three hours; (2) vessel traffic in Regulatory Fairness Boards. The Ombudsman evaluates these actions The legal basis for the rule is the the area during the effective period will be minimal; (3) although persons and annually and rates each agency’s Coast Guard’s authority to establish responsiveness to small business. If you regulated navigation areas and limited vessels will not be able to enter, transit through, anchor in, or remain within the wish to comment on actions by access areas: 33 U.S.C. 1231; 46 U.S.C. employees of the Coast Guard, call Chapter 701, 3306, 3703; 50 U.S.C. 191, safety zone without authorization from the Captain of the Port Miami or a 1–888–REG–FAIR (1–888–734–3247). 195; 33 CFR 1.05–1, 6.04–1, 6.04–6, The Coast Guard will not retaliate 160.5; Public Law 107–295, 116 Stat. designated representative, they may operate in the surrounding area during against small entities that question or 2064; Department of Homeland Security complain about this rule or any policy Delegation No. 0170.1. the effective period; (4) persons and vessels may still enter, transit through, or action of the Coast Guard. The purpose of this rule is to protect anchor in, or remain within the safety Collection of Information race participants, participant vessels, zone if authorized by the Captain of the and the general public during the 1.2 Port Miami or a designated This rule calls for no new collection mile swim portion of the triathlon. representative; and (5) advance of information under the Paperwork Discussion of Rule notification will be made to the local Reduction Act of 1995 (44 U.S.C. 3501– maritime community via Local Notice to 3520). On October 30, 2011, Paramount Mariners and Broadcast Notice to Productions, LLC will be hosting the Mariners. Federalism Rohto Ironman 70.3 Miami. This event includes a 1.2 mile swim, which will Small Entities A rule has implications for federalism under Executive Order 13132, take place on the waters of Biscayne Bay Under the Regulatory Flexibility Act Federalism, if it has a substantial direct located east of Bayfront Park in Miami, (5 U.S.C. 601–612), we have considered effect on State or local governments and Florida. Approximately 2,500 whether this rule will have a significant would either preempt State law or individuals are scheduled to compete in economic impact on a substantial impose a substantial direct cost of the event. number of small entities. The term compliance on them. We have analyzed The temporary safety zone ‘‘small entities’’ comprises small this rule under that Order and have encompasses the swim area of the Rohto businesses, not-for-profit organizations Ironman 70.3 Miami on Biscayne Bay, that are independently owned and determined that it does not have east of Bayfront Park, in Miami, Florida. operated and are not dominant in their implications for federalism. The temporary safety zone is effective fields, and governmental jurisdictions Unfunded Mandates Reform Act from 6:45 a.m. until 10 a.m. on October with populations of less than 50,000. 30, 2011. Persons and vessels are The Coast Guard certifies under 5 The Unfunded Mandates Reform Act prohibited from entering, transiting U.S.C. 605(b) that this rule will not have of 1995 (2 U.S.C. 1531–1538) requires through, anchoring in, or remaining a significant economic impact on a Federal agencies to assess the effects of within the safety zone unless authorized substantial number of small entities. their discretionary regulatory actions. In by the Captain of the Port Miami or a This rule may affect the following particular, the Act addresses actions designated representative. Persons and entities, some of which may be small that may result in the expenditure by a vessels may request authorization to entities: the owners or operators of State, local, or tribal government, in the enter, transit through, anchor in, or vessels intending to enter, transit aggregate, or by the private sector of remain within the safety zone by through, anchor in, or remain within the $100,000,000 or more in any one year. contacting the Captain of the Port Miami waters of Biscayne Bay that are Though this rule will not result in such via telephone at 305–535–4472, or a encompassed within the safety zone an expenditure, we do discuss the designated representative via VHF radio from 6:45 a.m. until 10 a.m. on October effects of this rule elsewhere in this on channel 16. 30, 2011. For the reasons discussed in preamble.

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Taking of Private Property technical standards (e.g., specifications position 25°46′44″ N, 80°10′59″ W; This rule will not cause a taking of of materials, performance, design, or thence southeast to Point 2 in position ° ′ ″ ° ′ ″ private property or otherwise have operation; test methods; sampling 25 46 24 N, 80 10 46 W; thence taking implications under Executive procedures; and related management southwest to Point 3 in position Order 12630, Governmental Actions and systems practices) that are developed or 25°46′18″ N, 80°11′06″ W; thence north Interference with Constitutionally adopted by voluntary consensus to Point 4 in position 25°46′31″ N, Protected Property Rights. standards bodies. 80°11′06″ W; thence northeast back to This rule does not use technical origin. All coordinates are North Civil Justice Reform standards. Therefore, we did not American Datum 1983. This rule meets applicable standards consider the use of voluntary consensus in sections 3(a) and 3(b)(2) of Executive standards. (b) Definition. The term ‘‘designated representative’’ means Coast Guard Order 12988, Civil Justice Reform, to Environment minimize litigation, eliminate Patrol Commanders, including Coast ambiguity, and reduce burden. We have analyzed this rule under Guard coxswains, petty officers, and Department of Homeland Security other officers operating Coast Guard Protection of Children Management Directive 023–01 and vessels, and Federal, state, and local We have analyzed this rule under Commandant Instruction M16475.lD, officers designated by or assisting the Executive Order 13045, Protection of which guide the Coast Guard in Captain of the Port Miami in the Children from Environmental Health complying with the National enforcement of the regulated area. Risks and Safety Risks. This rule is not Environmental Policy Act of 1969 (c) Regulations. an economically significant rule and (NEPA) (42 U.S.C. 4321–4370f), and does not create an environmental risk to have concluded this action is one of a (1) All persons and vessels are health or risk to safety that may category of actions that do not prohibited from entering, transiting disproportionately affect children. individually or cumulatively have a through, anchoring in, or remaining significant effect on the human within the regulated area unless Indian Tribal Governments environment. This rule is categorically authorized by the Captain of the Port This rule does not have tribal excluded, under figure 2–1, paragraph Miami or a designated representative. implications under Executive Order 34(g), of the Instruction. This rule (2) Persons and vessels desiring to 13175, Consultation and Coordination involves establishing a temporary safety enter, transit through, anchor in, or with Indian Tribal Governments, zone, as described in paragraph 34(g) of remain within the regulated area may because it does not have a substantial the Instruction, on the waters of contact the Captain of the Port Miami direct effect on one or more Indian Biscayne Bay that will be in effect for via telephone at 305–535–4472, or a tribes, on the relationship between the just over three hours. An environmental Federal Government and Indian tribes, analysis checklist and a categorical designated representative via VHF radio or on the distribution of power and exclusion determination are available in on channel 16, to seek authorization. If responsibilities between the Federal the docket where indicated under authorization to enter, transit through, Government and Indian tribes. ADDRESSES. anchor in, or remain within the regulated area is granted by the Captain Energy Effects List of Subjects in 33 CFR Part 165 of the Port Miami or a designated We have analyzed this rule under Harbors, Marine safety, Navigation representative, all persons and vessels Executive Order 13211, Actions (water), Reporting and recordkeeping receiving such authorization must Concerning Regulations That requirements, Security measures, comply with the instructions of the Significantly Affect Energy Supply, Waterways. Captain of the Port Miami or a Distribution, or Use. We have For the reasons discussed in the designated representative. determined that it is not a ‘‘significant preamble, the Coast Guard amends 33 (3) The Coast Guard will provide energy action’’ under that order because CFR part 165 as follows: it is not a ‘‘significant regulatory action’’ notice of the regulated area via Local under Executive Order 12866 and is not PART 165—REGULATED NAVIGATION Notice to Mariners, Broadcast Notice to likely to have a significant adverse effect AREAS AND LIMITED ACCESS AREAS Mariners, and by on-scene designated on the supply, distribution, or use of representatives. energy. The Administrator of the Office ■ 1. The authority citation for part 165 (d) Effective Date. This rule is of Information and Regulatory Affairs continues to read as follows: effective from 6:45 a.m. until 10 a.m. on has not designated it as a significant Authority: 33 U.S.C. 1231; 46 U.S.C. October 30, 2011. energy action. Therefore, it does not Chapter 701, 3306, 3703; 50 U.S.C. 191, 195; require a Statement of Energy Effects 33 CFR 1.05–1, 6.04–1, 6.04–6, 160.5; Pub. L. Dated: August 8, 2011. under Executive Order 13211. 107–295, 116 Stat. 2064; Department of C.P. Scraba, Homeland Security Delegation No. 0170.1. Captain, U.S. Coast Guard, Captain of the Technical Standards ■ 2. Add a temporary § 165.T07–0195 to Port Miami. The National Technology Transfer read as follows: [FR Doc. 2011–22076 Filed 8–29–11; 8:45 am] and Advancement Act (NTTAA) (15 BILLING CODE 9110–04–P U.S.C. 272 note) directs agencies to use § 165.T07–0195 Safety Zone; 2011 Rohto voluntary consensus standards in their Ironman 70.3 Miami, Biscayne Bay, Miami, regulatory activities unless the agency FL. provides Congress, through the Office of (a) Regulated Area. The following Management and Budget, with an regulated area is a safety zone. All explanation of why using these waters of Biscayne Bay located east of standards would be inconsistent with Bayfront Park and encompassed within applicable law or otherwise impractical. an imaginary line connecting the Voluntary consensus standards are following points: starting at Point 1 in

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DEPARTMENT OF HOMELAND Regulatory Information Discussion of Rule SECURITY The Coast Guard is issuing this The Coast Guard is extending the effective date of a safety zone Coast Guard temporary final rule without prior notice and opportunity to comment encompassing the Big Sioux River from the Military Road Bridge in North Sioux 33 CFR Part 165 pursuant to authority under section 4(a) of the Administrative Procedure Act City, South Dakota at 42.52 degrees [Docket No. USCG–2011–0528] (APA) (5 U.S.C. 553(b)). This provision North, 096.48 degrees West longitude to the confluence of the Missouri River at RIN 1625–AA00 authorizes an agency to issue a rule without prior notice and opportunity to 42.49 degrees North, 096.45 degrees Safety Zone; Big Sioux River From the comment when the agency for good West longitude and extending the entire Military Road Bridge North Sioux City cause finds that those procedures are width of the river. to the Confluence of the Missouri ‘‘impracticable, unnecessary, or contrary During enforcement periods, vessels River, SD to the public interest.’’ Under 5 U.S.C. and tows may not enter this zone unless 553(b)(B), the Coast Guard finds that authorized by the Captain of the Port AGENCY: Coast Guard, DHS. good cause exists for not publishing an Sector Upper Mississippi River. ACTION: Temporary final rule; change of NPRM. This rule extends the existing Emergency response boats or vessels effective period. temporary safety zone on the Big Sioux may enter these waters when River from the Military Road Bridge in responding to emergent situations on or SUMMARY: The Coast Guard is extending North Sioux City, SD at 42.52 degrees near the river. The Captain of the Port the effective period for the temporary North, 096.48 degrees West longitude to Sector Upper Mississippi River will safety zone restricting navigation on the the confluence of the Missouri River at inform the public through broadcast Big Sioux River from the Military Road 42.49 degrees North, 096.45 degrees notices to mariners and/or marine safety Bridge in North Sioux City, South West longitude and extending the entire information bulletins when enforcement Dakota to the confluence of the Missouri width of the river, which is currently set periods are in place and of all safety River and extending the entire width of to expire on August 30, 2011. This zone changes. When enforcement is the river. Temporary section 33 CFR extension is necessary to continue implemented, vessels currently in the 165.T11–0511, which established the uninterrupted protection of levees and safety zone will be provided temporary safety zone, was set to expire personnel involved in ongoing high opportunity to safely exit the restricted August 30, 2011. Extending the effective water response. area. period for this safety zone provides Additionally, the 33 CFR section continued and uninterrupted protection Failing to extend the effective dates number assigned to this temporary of levees and personnel involved in for this rule pending completion of safety zone has the same 33 CFR section ongoing high water response. notice and comment rulemaking is number as an existing temporary safety Continuing the safety zone will impracticable and contrary to the public zone added by USCG–2011–0511 (76 FR significantly reduce the threat of interest because it would cause a gap in 37649, June 28, 2011). To avoid destruction to levees. Additionally, to the ability to enforce the needed safety duplicative temporary section numbers, avoid duplicative temporary section zone for protection of all responders, the section 33 CFR 165.T11–0511 associated numbers, section 33 CFR 165.T11–0511 response efforts, and the environment. with this safety zone in place pursuant is redesignated as 33 CFR 165.T11– For the same reasons, under 5 U.S.C. to the temporary final rule at docket 0528. 553(d)(3), the Coast Guard finds that USCG–2011–0528 (76 FR 38013, June good cause exists for making this rule DATES: The temporary safety zone added 29, 2011) is redesignated as 33 CFR effective less than 30 days after 165.T11–0528. at 76 FR 38013, June 29, 2011, effective publication in the Federal Register. from June 2, 2011 until August 30, 2011, Regulatory Analyses will continue in effect through October Basis and Purpose 31, 2011. We developed this rule after The safety zone in place pursuant to considering numerous statutes and ADDRESSES: Documents indicated in this the Temporary Final Rule at docket executive orders related to rulemaking. preamble as being available in the USCG–2011–0528 (76 FR 38013, June Below we summarize our analyses docket are part of docket USCG–2011– 29, 2011) established a temporary safety based on 13 of these statutes or 0528 and are available online by going zone for the flooding on the Big Sioux executive orders. to http://www.regulations.gov, inserting River from June 2, 2011 through August USCG–2011–0528 in the ‘‘Keyword’’ 30, 2011. The safety zone was enforced Regulatory Planning and Review box, and then clicking ‘‘Search.’’ They through actual notice from June 2, 2011 This rule is not a significant are also available for inspection or until June 28, 2011. The rule published regulatory action under section 3(f) of copying at the Docket Management in the Federal Register on June 29, 2011 Executive Order 12866, Regulatory Facility (M–30), U.S. Department of to ensure seamless protection of those Planning and Review, as supplemented Transportation, West Building Ground involved in the response efforts. This by Executive Order 13563, Improving Floor, Room W12–140, 1200 New Jersey rule extends the existing temporary Regulation and Regulatory Review, and Avenue, SE., Washington, DC 20590, safety zone on the Big Sioux River from does not require an assessment of between 9 a.m. and 5 p.m., Monday the Military Road Bridge in North Sioux potential costs and benefits under through Friday, except Federal holidays. City to the confluence of the Missouri section 6(a)(3) of that Executive Order FOR FURTHER INFORMATION CONTACT: If River and extending the entire width of 12866 or under section 1 of Executive you have questions about this notice, the river, which is currently set to Order 13563. The Office of Management call or e-mail Lieutenant Commander expire on August 30, 2011. The and Budget has not reviewed it under (LCDR) Scott Stoermer, Sector Upper temporary safety zone created by this that those Orders. Mississippi River, Coast Guard at (314) rule ensures that there is no gap in Notifications to the marine 269–2540 or [email protected]. authority to protect all responders, and community will be made through SUPPLEMENTARY INFORMATION: levees. broadcast notices to mariners and/or

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marine safety information bulletins. The Coast Guard will not retaliate direct effect on one or more Indian Vessels requiring entry into or passage against small entities that question or tribes, on the relationship between the through the Safety Zone may request complain about this rule or any policy Federal Government and Indian tribes, permission from the Captain of the Port or action of the Coast Guard. or on the distribution of power and Sector Upper Mississippi, or a responsibilities between the Federal Collection of Information designated representative and entry will Government and Indian tribes. be evaluated on a case-by-case basis to This rule calls for no new collection Energy Effects minimize impact and protect the general of information under the Paperwork public, levee system, vessels from Reduction Act of 1995 (44 U.S.C. 3501– We have analyzed this rule under destruction, and loss or injury due to 3520). Executive Order 13211, Actions the hazards associated with flood water. Concerning Regulations That Federalism The impacts on routine navigation are Significantly Affect Energy Supply, expected to be minimal. A rule has implications for federalism Distribution, or Use. We have under Executive Order 13132, determined that it is not a ‘‘significant Small Entities Federalism, if it has a substantial direct energy action’’ under that order because Under the Regulatory Flexibility Act effect on State or local governments and it is not a ‘‘significant regulatory action’’ (5 U.S.C. 601–612), we have considered would either preempt State law or under Executive Order 12866 and is not whether this rule would have a impose a substantial direct cost of likely to have a significant adverse effect significant economic impact on a compliance on them. We have analyzed on the supply, distribution, or use of substantial number of small entities. this rule under that Order and have energy. The Administrator of the Office The term ‘‘small entities’’ comprises determined that it does not have of Information and Regulatory Affairs small businesses, not-for-profit implications for federalism. has not designated it as a significant organizations that are independently energy action. Therefore, it does not owned and operated and are not Unfunded Mandates Reform Act require a Statement of Energy Effects dominant in their fields, and The Unfunded Mandates Reform Act under Executive Order 13211. governmental jurisdictions with of 1995 (2 U.S.C. 1531–1538) requires Technical Standards populations of less than 50,000. Federal agencies to assess the effects of This Safety Zone is not expected to their discretionary regulatory actions. In The National Technology Transfer have a significant economic impact on particular, the Act addresses actions and Advancement Act (NTTAA) (15 a substantial number of small entities that may result in the expenditure by a U.S.C. 272 note) directs agencies to use because vessels may request permission State, local, or tribal government, in the voluntary consensus standards in their to transit the area from the Captain of aggregate, or by the private sector of regulatory activities unless the agency the Port Sector Upper Mississippi, or a $100,000,000 (adjusted for inflation) or provides Congress, through the Office of designated representative, for passage more in any one year. Though this rule Management and Budget, with an through the Safety Zone. Passage will not result in such an expenditure, explanation of why using these through the safety zone will be we do discuss the effects of this rule standards would be inconsistent with evaluated on a case-by-case basis to elsewhere in this preamble. applicable law or otherwise impractical. minimize impact and protect the general Voluntary consensus standards are public, levee system, vessels from Taking of Private Property technical standards (e.g., specifications destruction, and loss or injury due to This rule will not cause a taking of of materials, performance, design, or the hazards associated with flood water. private property or otherwise have operation; test methods; sampling If you are a small business entity and taking implications under Executive procedures; and related management are significantly affected by this Order 12630, Governmental Actions and systems practices) that are developed or regulation, please contact LCDR Scott Interference with Constitutionally adopted by voluntary consensus Stoermer, Sector Upper Mississippi Protected Property Rights. standards bodies. River, Coast Guard at (314) 269–2540. This rule does not use technical Civil Justice Reform standards. Therefore, we did not Assistance for Small Entities This rule meets applicable standards consider the use of voluntary consensus Under section 213(a) of the Small in sections 3(a) and 3(b)(2) of Executive standards. Business Regulatory Enforcement Order 12988, Civil Justice Reform, to Environment Fairness Act of 1996 (Pub. L. 104–121), minimize litigation, eliminate we offer to assist small entities in ambiguity, and reduce burden. We have analyzed this rule under understanding the rule so that they can Department of Homeland Security better evaluate its effects on them and Protection of Children Management Directive 023–01 and participate in the rulemaking process. We have analyzed this rule under Commandant Instruction M16475.lD, Small businesses may send comments Executive Order 13045, Protection of which guide the Coast Guard in on the actions of Federal employees Children from Environmental Health complying with the National who enforce, or otherwise determine Risks and Safety Risks. This rule is not Environmental Policy Act of 1969 compliance with, Federal regulations to an economically significant rule and (NEPA) (42 U.S.C. 4321–4370f), and the Small Business and Agriculture does not create an environmental risk to have concluded this action is one of a Regulatory Enforcement Ombudsman health or risk to safety that may category of actions that do not and the Regional Small Business disproportionately affect children. individually or cumulatively have a Regulatory Fairness Boards. The significant effect on the human Ombudsman evaluates these actions Indian Tribal Governments environment. This rule is categorically annually and rates each agency’s This rule does not have tribal excluded, under figure 2–1, paragraph responsiveness to small business. If you implications under Executive Order (34)(g), of the Instruction, from further wish to comment on actions by 13175, Consultation and Coordination environmental documentation since employees of the Coast Guard, call with Indian Tribal Governments, implementation of this action will not 1–888–REG–FAIR (1–888–734–3247). because it does not have a substantial result in any significant cumulative

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impacts on the human environment; temporary safety zone is necessary for immediate action is needed to minimize does not involve a substantial change to the safety of the race participants, the potential danger to the race existing environmental conditions; and participant vessels, spectators, and the participants, participant vessels, is consistent with Federal, State, and/or general public during the 1.1 mile swim spectators, and the general public. local laws or administrative portion of the competition. Persons and Under 5 U.S.C. 553(d)(3), the Coast determinations relating to the vessels are prohibited from entering, Guard finds that good cause exists for environment. This rule involves transiting through, anchoring in, or making this rule effective less than establishing a temporary safety zone. remaining within the safety zone unless 30 days after publication in the Federal Pursuant to paragraph (34)(g) of the authorized by the Captain of the Port Register. Immediate action is necessary Instruction, an environmental checklist Savannah or a designated in order to restrict vessel movement and and a categorical exclusion checklist are representative. ensure maritime public safety during available in the docket indicated under DATES: This rule is effective from 7 a.m. this event. ADDRESSES. until 11:59 a.m. on September 25, 2011. Basis and Purpose List of Subjects in 33 CFR Part 165 ADDRESSES: Documents indicated in this preamble as being available in the The legal basis for the rule is the Harbors, Marine safety, Navigation docket are part of docket USCG–2011– Coast Guard’s authority to establish (water), Reporting and recordkeeping 0691 and are available online by going regulated navigation areas and other requirements, Security measures, to http://www.regulations.gov, inserting limited access areas: 33 U.S.C. 1231; 46 Waterways. USCG–2011–0691 in the ‘‘Keyword’’ U.S.C. Chapter 701, 3306, 3703; 50 For the reasons discussed in the box, and then clicking ‘‘Search.’’ They U.S.C. 191, 195; 33 CFR 1.05–1, 6.04–1, preamble, the Coast Guard amends 33 are also available for inspection or 6.04–6, 160.5; Public Law 107–295, 116 CFR part 165 as follows: copying at the Docket Management Stat. 2064; Department of Homeland Security Delegation No. 0170.1. PART 165—SAFETY ZONES Facility (M–30), U.S. Department of Transportation, West Building Ground The purpose of the rule is to ensure ■ 1. The authority citation for part 165 Floor, Room W12–140, 1200 New Jersey the safety of the swimmers, participant continues to read as follows: Avenue, SE., Washington, DC 20590, vessels, spectators, and the general between 9 a.m. and 5 p.m., Monday public during the ESI Ironman 70.3 Authority: 33 U.S.C. 1231; 46 U.S.C. through Friday, except Federal holidays. Augusta Triathlon. Chapter 701, 3306, 3703; 50 U.S.C. 191, 195; 33 CFR 1.05–1, 6.04–1, 6.04–6, 160.5; Pub. L. FOR FURTHER INFORMATION CONTACT: If Discussion of Rule 107–295, 116 Stat. 2064; Department of you have questions on this temporary Homeland Security Delegation No. 0170.1. final rule, call or e-mail Marine Science On Sunday, September 25, 2011, the Technician Third Class Timothy R. ESI Ironman 70.3 Augusta Triathlon is ■ 2. Redesignate section 165.T11–0511 Estep, Marine Safety Unit Savannah scheduled to take place in Augusta, temporarily added at 76 FR 38013, June Office of Waterways Management, Coast Georgia. This event includes a 1.1 mile 29, 2011, as section 165.T11–0528, Guard; telephone 912–652–4353, e-mail swim that will take place on the waters effective from June 2, 2011 to August 30, [email protected]. If you have of the Savannah River. The swim starts 2011, and will continue in effect questions on viewing the docket, call at the 6th Street Railroad Bridge and through October 31, 2011. Renee V. Wright, Program Manager, finishes at Mile Post 198. Dated: August 18, 2011. Docket Operations, telephone 202–366– The safety zone encompasses certain B.L. Black, 9826. waters of the Savannah River in Captain, U.S. Coast Guard, Captain of the SUPPLEMENTARY INFORMATION: Augusta, Georgia. The safety zone will Port Sector Upper Mississippi River. be enforced from 7 a.m. until 11:59 a.m. Regulatory Information [FR Doc. 2011–22072 Filed 8–29–11; 8:45 am] on September 25, 2011. Persons and BILLING CODE 9110–04–P The Coast Guard is issuing this vessels are prohibited from entering, temporary final rule without prior transiting through, anchoring in, or notice and opportunity to comment remaining within the safety zone unless DEPARTMENT OF HOMELAND pursuant to authority under section 4(a) authorized by the Captain of the Port SECURITY of the Administrative Procedure Act Savannah or a designated (APA) (5 U.S.C. 553(b)). This provision representative. Persons and vessels Coast Guard authorizes an agency to issue a rule desiring to enter, transit through, anchor without prior notice and opportunity to in, or remain within the safety zone may 33 CFR Part 165 comment when the agency for good contact the Captain of the Port [Docket No. USCG–2011–0691] cause finds that those procedures are Savannah by telephone at 912–652– ‘‘impracticable, unnecessary, or contrary 4353, or a designated representative via RIN 1625–AA00 to the public interest.’’ Under 5 U.S.C. VHF radio on channel 16, to request 553(b)(B), the Coast Guard finds that authorization. If authorization to enter, Safety Zone; ESI Ironman 70.3 Augusta good cause exists for not publishing a transit through, anchor in, or remain Triathlon, Savannah River, Augusta, notice of proposed rulemaking (NPRM) within the safety zone is granted by the GA with respect to this rule because the Captain of the Port Savannah or a AGENCY: Coast Guard, DHS. Coast Guard did not receive necessary designated representative, all persons ACTION: Temporary final rule. information regarding the ESI Ironman and vessels receiving such authorization 70.3 Augusta Triathlon until July 7, must comply with the instructions of SUMMARY: The Coast Guard is 2011. As a result, the Coast Guard did the Captain of the Port Savannah or a establishing a temporary safety zone on not have sufficient time to publish an designated representative. The Coast the waters of the Savannah River in NPRM and to receive public comments Guard will provide notice of the safety Augusta, Georgia during the ESI prior to the event. Any delay in the zone by Local Notice to Mariners, Ironman 70.3 Augusta Triathlon on effective date of this rule would be Broadcast Notice to Mariners, and on- Sunday, September 25, 2011. The contrary to the public interest because scene designated representatives.

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Regulatory Analyses encompassed within the safety zone Taking of Private Property We developed this rule after from 7 a.m. until 11:59 a.m. on This rule will not effect a taking of considering numerous statutes and September 25, 2011. For the reasons private property or otherwise have executive orders related to rulemaking. discussed in the Executive Order 12866 taking implications under Executive Below we summarize our analyses and Executive Order 13563 section Order 12630, Governmental Actions and based on 13 of these statutes or above, this rule will not have a Interference with Constitutionally executive orders. significant economic impact on a Protected Property Rights. substantial number of small entities. Executive Order 12866 and Executive Civil Justice Reform Assistance for Small Entities Order 13563 This rule meets applicable standards This rule is not a significant Under section 213(a) of the Small in sections 3(a) and 3(b)(2) of Executive regulatory action under section 3(f) of Business Regulatory Enforcement Order 12988, Civil Justice Reform, to Executive Order 12866, Regulatory Fairness Act of 1996 (Pub. L. 104–121), minimize litigation, eliminate Planning and Review, as supplemented we offer to assist small entities in ambiguity, and reduce burden. understanding the rule so that they can by Executive Order 13563, Improving Protection of Children Regulation and Regulatory Review, and better evaluate its effects on them and We have analyzed this rule under does not require an assessment of participate in the rulemaking process. Executive Order 13045, Protection of potential costs and benefits under Small businesses may send comments Children from Environmental Health section 6(a)(3) of that Executive Order on the actions of Federal employees Risks and Safety Risks. This rule is not 12866 or under section 1 of Executive who enforce, or otherwise determine an economically significant rule and Order 13563. The Office of Management compliance with, Federal regulations to does not create an environmental risk to and Budget has not reviewed it under the Small Business and Agriculture health or risk to safety that may that Order. Regulatory Enforcement Ombudsman disproportionately affect children. The economic impact of this rule is and the Regional Small Business not significant for the following reasons: Regulatory Fairness Boards. The Indian Tribal Governments Ombudsman evaluates these actions (1) The safety zone will be enforced for This rule does not have tribal annually and rates each agency’s only five hours; (2) although persons implications under Executive Order responsiveness to small business. If you and vessels will not be able to enter, 13175, Consultation and Coordination wish to comment on actions by transit through, anchor in, or remain with Indian Tribal Governments, employees of the Coast Guard, call within the safety zone without because it does not have a substantial 1–888–REG–FAIR (1–888–734–3247). authorization from the Captain of the direct effect on one or more Indian The Coast Guard will not retaliate Port Savannah or a designated tribes, on the relationship between the against small entities that question or representative, they may operate in the Federal Government and Indian tribes, complain about this rule or any policy surrounding area during the or on the distribution of power and or action of the Coast Guard. enforcement period; (3) persons and responsibilities between the Federal vessels may still enter, transit through, Collection of Information Government and Indian tribes. anchor in, or remain within the safety zone if authorized by the Captain of the This rule calls for no new collection Energy Effects Port Savannah or a designated of information under the Paperwork We have analyzed this rule under representative; and (4) the Coast Guard Reduction Act of 1995 (44 U.S.C. 3501– Executive Order 13211, Actions will provide advance notification of the 3520). Concerning Regulations That safety zone to the local maritime Federalism Significantly Affect Energy Supply, community by Local Notice to Mariners Distribution, or Use. We have and Broadcast Notice to Mariners. A rule has implications for federalism determined that it is not a ‘‘significant under Executive Order 13132, Small Entities energy action’’ under that order because Federalism, if it has a substantial direct it is not a ‘‘significant regulatory action’’ Under the Regulatory Flexibility Act effect on State or local governments and under Executive Order 12866 and is not (5 U.S.C. 601–612), we have considered would either preempt State law or likely to have a significant adverse effect whether this rule would have a impose a substantial direct cost of on the supply, distribution, or use of significant economic impact on a compliance on them. We have analyzed energy. The Administrator of the Office substantial number of small entities. this rule under that Order and have of Information and Regulatory Affairs The term ‘‘small entities’’ comprises determined that it does not have has not designated it as a significant small businesses, not-for-profit implications for federalism. energy action. Therefore, it does not organizations that are independently Unfunded Mandates Reform Act require a Statement of Energy Effects owned and operated and are not under Executive Order 13211. dominant in their fields, and The Unfunded Mandates Reform Act governmental jurisdictions with of 1995 (2 U.S.C. 1531–1538) requires Technical Standards populations of less than 50,000. Federal agencies to assess the effects of The National Technology Transfer The Coast Guard certifies under 5 their discretionary regulatory actions. In and Advancement Act (NTTAA) (15 U.S.C. 605(b) that this rule will not have particular, the Act addresses actions U.S.C. 272 note) directs agencies to use a significant economic impact on a that may result in the expenditure by a voluntary consensus standards in their substantial number of small entities. State, local, or tribal government, in the regulatory activities unless the agency This rule may affect the following aggregate, or by the private sector of provides Congress, through the Office of entities, some of which may be small $100,000,000 or more in any one year. Management and Budget, with an entities: the owners or operators of Though this rule will not result in such explanation of why using these vessels intending to enter, transit an expenditure, we do discuss the standards would be inconsistent with through, anchor in, or remain within effects of this rule elsewhere in this applicable law or otherwise impractical. that portion of the Savannah River preamble. Voluntary consensus standards are

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technical standards (e.g., specifications 2 in position 33°28′50″ N, 81°57′50″ W; DEPARTMENT OF COMMERCE of materials, performance, design, or thence southeast to Point 3 in position operation; test methods; sampling 33°27′51″ N, 81°55′36″ W; thence National Oceanic and Atmospheric procedures; and related management southwest to Point 4 in position Administration systems practices) that are developed or 33°27′47″ N, 81°55′43″ W; thence adopted by voluntary consensus northwest back to origin. All 50 CFR Part 648 standards bodies. coordinates are North American Datum [Docket No. 101029427–1413–03] This rule does not use technical 1983. standards. Therefore, we did not RIN 0648–XY82 consider the use of voluntary consensus (b) Definition. The term ‘‘designated standards. representative’’ means Coast Guard Fisheries of the Northeastern United Patrol Commanders, including Coast States; Summer Flounder, Scup, and Environment Guard coxswains, petty officers, and Black Sea Bass Fisheries; 2011 We have analyzed this rule under other officers operating Coast Guard Summer Flounder, Scup, and Black Department of Homeland Security vessels, and Federal, state, and local Sea Bass Specifications; Correction Management Directive 023–01 and officers designated by or assisting the AGENCY: National Marine Fisheries Commandant Instruction M16475.lD, Captain of the Port Savannah in the Service (NMFS), National Oceanic and which guide the Coast Guard in enforcement of the regulated area. Atmospheric Administration (NOAA), complying with the National (c) Regulations. Commerce. Environmental Policy Act of 1969 ACTION: Final rule, correcting (NEPA) (42 U.S.C. 4321–4370f), and (1) All persons and vessels are amendment. have concluded this action is one of a prohibited from entering, transiting category of actions that do not through, anchoring in, or remaining SUMMARY: On December 28, 2010, NMFS individually or cumulatively have a within the regulated area unless published in the Federal Register the significant effect on the human authorized by the Captain of the Port final rule to implement the 2011 environment. This rule is categorically Savannah or a designated summer flounder, scup, and black sea excluded, under figure 2–1, paragraph representative. bass specifications, which established 34(g), of the Instruction. This rule (2) Persons and vessels desiring to commercial summer flounder involves the establishment of a enter, transit through, anchor in, or allocations for each coastal state from temporary safety zone on the waters of remain within the regulated area may North Carolina to Maine. Following the Savannah River that will be contact the Captain of the Port publication, an error was identified in enforced for a total of five hours. An Savannah by telephone at 912–652– the amount of commercial summer environmental analysis checklist and a 4353, or a designated representative via flounder allocated to the State of categorical exclusion determination are Maryland. This rule corrects that error. VHF radio on channel 16, to request available in the docket where indicated DATES: Effective August 30, 2011 under ADDRESSES. authorization. If authorization to enter, transit through, anchor in, or remain through December 31, 2011. List of Subjects in 33 CFR Part 165 within the regulated area is granted by FOR FURTHER INFORMATION CONTACT: Harbors, Marine safety, Navigation the Captain of the Port Savannah or a Carly Knoell, Fisheries Management (water), Reporting and recordkeeping designated representative, all persons Specialist, (978) 281–9224, requirements, Security measures, and vessels receiving such authorization [email protected]. Waterways. must comply with the instructions of SUPPLEMENTARY INFORMATION: For the reasons discussed in the the Captain of the Port Savannah or a Background preamble, the Coast Guard amends 33 designated representative. CFR part 165 as follows: Regulations for the summer flounder (3) The Coast Guard will provide fishery are found at 50 CFR part 648. PART 165—REGULATED NAVIGATION notice of the regulated area by Local The regulations require annual AREAS AND LIMITED ACCESS AREAS Notice to Mariners, Broadcast Notice to specification of a commercial quota that Mariners, and on-scene designated is apportioned among the coastal states ■ 1. The authority citation for part 165 representatives. from North Carolina through Maine. The continues to read as follows: (d) Effective Date. This rule is process to set the annual commercial Authority: 33 U.S.C. 1231; 46 U.S.C. effective from 7 a.m. until 11:59 a.m. on quota and the percent allocated to each Chapter 701, 3306, 3703; 50 U.S.C. 191, 195; September 25, 2011. state are described in § 648.100. 33 CFR 1.05–1, 6.04–1, 6.04–6, 160.5; Pub. L. 107–295, 116 Stat. 2064; Department of Dated: August 8, 2011. Need for Correction Homeland Security Delegation No. 0170.1. J.B. Loring, The final rule implementing 2011 summer flounder, scup, and black sea ■ 2. Add a temporary § 165.T07–0691 to Commander, U.S. Coast Guard, Captain of bass specifications published on read as follows: the Port Savannah. [FR Doc. 2011–22074 Filed 8–29–11; 8:45 am] December 28, 2010 (75 FR 81498). An § 165.T07–0691 Safety Zone; ESI Ironman BILLING CODE 9110–04–P error was found in the specifications in 70.3 Augusta Triathlon, Savannah River, Table 1, on page 81500, regarding the Augusta, GA. amount of commercial summer flounder (a) Regulated Area. The following quota allocated to Maryland. Using the regulated area is a safety zone. All most recent summer flounder landings waters of the Savannah River data for Maryland, NMFS determined encompassed within an imaginary line that the 2011 commercial summer connecting the following points: starting flounder quota for Maryland should be at Point 1 in position 33°28′44″ N, increased from 298,330 lb (135.3 mt) to 81°57′53″ W; thence northeast to Point 354,296 lb (160.7 mt). The entry in

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Table 1 for the commercial summer flounder quota for Maryland is corrected to read as follows:

TABLE 1—FINAL STATE-BY-STATE COMMERCIAL SUMMER FLOUNDER ALLOCATIONS FOR 2011

FMP Initial quota Initial quota, 2010 quota overages Adjusted quota, State percent (TAL) less RSA (through 10/31/10) less RSA share lb kg lb kg lb kg lb kg

******* MD ...... 2.03910 360,676 163,603 354,296 160,709 0 0 354,296 160,760

*******

Classification allocated to Maryland. Delaying the SUMMARY: NMFS decreases the trip Pursuant to 5 U.S.C. 553(b)(B), the effective date of this correction for 30 limits for Gulf of Maine (GOM) and Assistant Administrator for Fisheries, days could result in a premature closure George’s Bank (GB) cod for Northeast NOAA, finds good cause to waive prior of the summer flounder fishery in (NE) multispecies common pool vessels notice and opportunity for additional Maryland. Given that Maryland has for the 2011 fishing year (FY), through public comment for this action because surpassed the state’s summer flounder April 30, 2012. This action is authorized this would be impracticable and quota in the past, if the revised quota is under the authority of the Magnuson- contrary to the public interest. The not implemented immediately, there is Stevens Fishery Conservation and proposed rule for the 2011 summer a higher potential this could happen Management Act (Magnuson-Stevens flounder, scup, and black sea bass again, and could produce unnecessary Act), and by the regulations specification already took comment on adverse economic consequences for implementing Amendment 16 and the initial summer flounder quota with fishermen that participate in this Framework Adjustment (FW) 44 to the the understanding that overage fishery. NE Multispecies Fishery Management adjustments would be made. This action Because prior notice and opportunity Plan (FMP). The action is intended to is correcting an error found in the for public comment are not required for reduce the harvest of GOM and GB cod specifications regarding the amount of this rule by 5 U.S.C. 553, or any other to prevent the common pool sub-annual commercial summer flounder quota law, the analytical requirements of the catch limit (sub-ACL) from being allocated to Maryland. Using the most Regulatory Flexibility Act, 5 U.S.C. 601 exceeded. recent summer flounder landings data et seq., do not apply. DATES: Effective August 30, 2011, for Maryland, NMFS determined that This final rule is exempt from review through April 30, 2012. under Executive Order 12866. the 2011 commercial summer flounder FOR FURTHER INFORMATION CONTACT: quota for Maryland should be increased Authority: 16 U.S.C. 1801 et seq. Brett Alger, Fisheries Management from 298,330 lb (135.3 mt) to 354,296 lb Dated: August 24, 2011. Specialist, (978) 675–2153, fax (978) (160.7 mt). This action is correcting an Samuel D. Rauch III, 281–9135. error made in the overage calculation Deputy Assistant Administrator for SUPPLEMENTARY INFORMATION: and not to the initial summer flounder Regulatory Programs, National Marine Regulations governing the NE quota. Delaying the implementation of Fisheries Service. multispecies fishery are found at 50 CFR this action to allow for prior notice and [FR Doc. 2011–22164 Filed 8–29–11; 8:45 am] part 648, subpart F. The regulations at opportunity for comment of this BILLING CODE 3510–22–P § 648.86(o) authorize the NMFS NE correction could result in a premature Regional Administrator (RA) to adjust closure of the summer flounder fishery the trip limits for common pool vessels in Maryland. Given that Maryland has DEPARTMENT OF COMMERCE in order to optimize the harvest of NE surpassed the state’s summer flounder regulated multispecies by preventing quota in the past, if the revised quota is National Oceanic and Atmospheric the overharvest or underharvest of not implemented, there is a higher Administration stocks subject to sub-ACLs. For FY potential this could happen again, and 2011, the common pool sub-ACL for could produce unnecessary adverse 50 CFR Part 648 GOM cod is 229,281 lb (104 mt). The economic consequences for fishermen [Docket No. 0910051338–0151–02] current trip limit for GOM cod is 500 lb that participate in this fishery. The (226.8 kg) per day-at-sea (DAS), up to measures in the proposed rule for the RIN 0648–XA652 2,000 lb (907.2 kg) per trip (76 FR 2011 summer flounder, scup, and black 23042; April 25, 2011). The common sea bass specifications, for which the Fisheries of the Northeastern United pool sub-ACL for GB cod is 205,030 lb opportunity for public comment was States; Northeast Multispecies (93 mt). The current trip limit for GB already given, are unaffected by this Fishery; Trip Limit Decrease for the cod is 3,000 lb (1,360.8 kg) per day-at- correction. Common Pool Fishery sea (DAS), up to 30,000 lb (13,607.8 kg) Moreover, pursuant to 5 U.S.C. AGENCY: National Marine Fisheries per trip (76 FR 30035; May 24, 2011). 553(d), the Assistant Administrator Service (NMFS), National Oceanic and As of August 11, 2011, based on the finds good cause to waive the 30-day Atmospheric Administration (NOAA), best available catch information, delay in effective date. This action is Commerce. including Vessel Monitoring System correcting an error found in the (VMS) reports, dealer reports, and vessel ACTION: Temporary rule; inseason specifications regarding the amount of trip reports, approximately 57 percent of adjustment of trip limit. commercial summer flounder quota the GOM cod, and 59 percent of the GB

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cod of the common pool sub-ACLs have action. This action decreases the trip Coast groundfish fishery, which been harvested. limits for GOM and GB cod to reduce included an individual fishing quota This action decreases the GOM cod their harvest in order to prevent the (IFQ) program for the shorebased trawl trip limit to 350 lb (158.8 kg) per DAS, common pool sub-ACLs from being fleet (including whiting and nonwhiting up to 1,000 lb (453.6 kg) per trip and exceeded. A delay in the reduction of sectors); and cooperative (coop) decreases the GB cod trip limit to 300 trip limits would allow for continued programs for the at-sea (whiting only) lb (136.1 kg) per DAS, up to 600 lb higher catch rates and potentially allow mothership and catcher/processor trawl (272.2 kg) per trip, for common pool the pertinent common pool sub-ACLs to fleets. Amendment 21 established fixed vessels, effective August 30, 2011, be exceeded. This is contrary to the allocations for limited entry trawl through April 30, 2012, to reduce agency’s obligation under the participants. harvest of these stocks and prevent the Magnuson-Stevens Act to prevent DATES: This action is effective August overharvest of their respective sub-ACLs overfishing. Further, if the sub-ACLs are 30, 2011. This action does not change the current exceeded, this would trigger the FOR FURTHER INFORMATION CONTACT: GB cod trip limit for vessels with a implementation of accountability Handgear A permit (300 lb (136.1 kg) measures that will have negative Becky Renko, NMFS, Northwest Region, per trip), Handgear B permit (75 lb (34.0 economic impacts on the participants in 206–526–6110. kg) per trip), or Small Vessel Category the common pool. Giving effect to this SUPPLEMENTARY INFORMATION: permit (300 lb (136.1 kg) of cod, rule as soon as possible will prevent Need for Corrections haddock, and yellowtail flounder these unnecessary impacts combined). Catch will continue to be On October 1, 2010 (75 FR 60868) and Authority: 16 U.S.C. 1801 et seq. monitored through dealer-reported December 15, 2010 (75 FR 78344) NMFS landings, VMS catch reports, and other Dated: August 25, 2011. published final rules to implement available information, and if necessary, James P. Burgess, Amendments 20 and 21 to the PCGFMP. additional adjustments to common pool Acting Director, Office of Sustainable The October 1, 2010, final rule management measures may be made. Fisheries, National Marine Fisheries Service. reorganized the Pacific Coast groundfish [FR Doc. 2011–22141 Filed 8–29–11; 8:45 am] regulations previously at subpart G of Classification BILLING CODE 3510–22–P part 660 by restructuring the regulations This action is authorized by 50 CFR in subparts C through G of part 660 and part 648 and is exempt from review adding regulations for establishing a under Executive Order 12866. DEPARTMENT OF COMMERCE new allocation structure and issuance of The Assistant Administrator for quota shares for the new trawl Fisheries, NOAA (AA) finds good cause National Oceanic and Atmospheric rationalization program. The second pursuant to 5 U.S.C. 553(b)(3)(B) to Administration final rule, published on December 15, waive prior notice and the opportunity 2010, implemented the management for public comment for this inseason 50 CFR Part 660 structure for the trawl rationalization adjustment because notice and comment [Docket No. 110721401–1470–01] program that took effect on January 1, would be impracticable and contrary to 2011. These actions contained the public interest. The regulations at RIN 0648–BB31 numerous inadvertent minor errors in § 648.86(o) grant the RA authority to regulatory text, including: duplicate Magnuson-Stevens Act Provisions; adjust the NE multispecies trip limits paragraphs; cross references that refer to Fisheries Off West Coast States; for common pool vessels in order to incorrect sections and paragraphs; Pacific Coast Groundfish Fishery; prevent the overharvest or underharvest inconsistent formatting for cross Amendments 20 and 21; Trawl of the pertinent common pool sub- references; and obsolete regulatory text Rationalization Program; Correcting ACLs. This action decreases the trip that was not removed. This action Amendments limits for GOM and GB cod to reduce corrects these non-substantive errors. their harvest in order to prevent the AGENCY: National Marine Fisheries Duplicate paragraphs were identified common pool sub-ACLs from being Service (NMFS), National Oceanic and at § 660.112 (c)(5) and (d)(12), § 660.150 exceeded. The time necessary to provide Atmospheric Administration (NOAA), (f)(2), and § 660.160 (e)(1). This action for prior notice and comment would Commerce. removes the duplicate regulatory text. prevent NMFS from implementing the ACTION: Final rule; correcting Incorrect cross references as well as necessary trip limit adjustments in a amendment. cross reference formatting errors are timely manner. A resulting delay in the being corrected by this action. Language reduction of trip limits would allow for SUMMARY: NMFS announces a correcting regarding the use of ‘‘bycatch limits’’ in continued higher catch rates and amendment to regulations the Pacific whiting fishery has been potentially allow the pertinent common implementing the Pacific Coast removed as they are no longer in use pool sub-ACLs to be exceeded. This is Groundfish Fishery Management Plan and have been replaced by allocations. contrary to the agency’s obligation (PCGFMP). The regulations Terms that were defined in the under the Magnuson-Stevens Act to implementing Amendments 20 and 21 definitions, but inconsistently used in prevent overfishing. Further, if the sub- to the PCGFMP, which included regulatory text were revised, including ACLs are exceeded, this would trigger reorganization of the entire groundfish ‘‘Pacific Fishery Management Council’’, the implementation of accountability regulations and revision of the trawl ‘‘sablefish primary season’’ and measures that will have negative related regulations, contained ‘‘economic data collection.’’ economic impacts on the participants in inadvertent non-substantive errors that the common pool. Giving effect to this are being corrected by this action in Classification rule as soon as possible will prevent order to assure the enforceability of the The Assistant Administrator (AA) these unnecessary impacts. regulations and reduce potential finds good cause under 5 U.S.C. Further, the AA finds good cause confusion of regulated parties. 553(b)(3)(B) to waive prior notice and pursuant to 5 U.S.C. 553(d)(3) to waive Amendment 20 established a trawl opportunity for public comment the 30-day delay in effectiveness for this rationalization program for the Pacific because it is unnecessary and contrary

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to the public interest. This document process’’ introductory text and consumption, retail sale, industrial uses corrects inaccurate cross references; ‘‘Processor’’ to read as follows: or long-term storage, including, but not removes language regarding referring to limited to, cooking, canning, smoking, ‘‘bycatch limits’’ in the Pacific whiting § 660.11 General definitions. salting, drying, filleting, freezing, or fishery at § 660.60 (c) that are no longer * * * * * rendering into meal or oil, but does not in use; removes duplicate paragraphs at B MSY means the biomass level that mean heading and gutting unless § 660.112 (c)(5), and (d)(12), § 660.150 produces maximum sustainable yield additional preparation is done. (A vessel (f)(2) and § 660.160 (e)(1); and, revises (MSY), as stated in the PCGFMP at that is 75-ft (23-m) or less LOA that the use of the terms ‘‘Pacific Fishery Section 4.3. harvests whiting and, in addition to Management Council’’, ‘‘sablefish * * * * * heading and gutting, cuts the tail off and primary season’’ and ‘‘economic data Catch monitor means an individual freezes the whiting, is not considered to collection’’ so they are consistently used that is certified by NMFS, is deployed be a catcher/processor nor is it in regulatory text and are used to a first receiver, and whose primary considered to be processing fish (See consistently with the defined terms. duties include: monitoring and § 660.112(b)(1)(xii)(A))). Providing notice and comment on these verification of the sorting of fish relative Processor means a person, vessel, or changes is unnecessary because all are to Federal requirements defined in facility that engages in commercial non-substantive and have no effect on § 660.60(h)(6); documentation of the processing; or receives live groundfish the public or the operation of the weighing of such fish relative to the directly from a fishing vessel for retail fishery; thus would have no impact on requirements of § 660.13(b); and sale without further processing. (Also regulated parties. Allowing verification of first receivers’ reporting see the definition for processors at inconsistencies in regulatory text to relative to the requirements defined in § 660.140, which defines processor for persist would be contrary to the public § 660.113(b)(4). the purposes of qualifying for initial interest as it could affect the * * * * * issuance of QS in the Shorebased IFQ enforceability of the regulations. For the Commercial harvest guideline means Program.) same reasons above, the AA finds good the fishery harvest guideline minus the (1) For the purposes of economic data cause under 5 U.S.C. 553(d)(3) to waive estimated recreational catch. Limited collection or EDC in the Shorebased IFQ the 30-day delay in effectiveness and entry and open access allocations are Program, shorebased processor means a makes this rule effective immediately derived from the commercial harvest person that engages in commercial upon publication. guideline. processing, that is an operation working Because notice and opportunity for * * * * * on U.S. soil or permanently fixed to comment are not required pursuant to Open access fishery means the fishery land, that takes delivery of fish that has 5 U.S.C. 553 or any other law, the composed of commercial vessels using not been subject to at-sea processing or analytical requirements of the open access gear fished pursuant to the shorebased processing; and that Regulatory Flexibility Act (5 U.S.C. 601 harvest guidelines, quotas, and other thereafter engages that particular fish in et seq.) are inapplicable. Therefore, a management measures governing the shorebased processing; and excludes regulatory flexibility analysis is not harvest of open access allocations retailers, such as grocery stores and required and has not been prepared. (detailed in § 660.55) or governing the markets, which receive whole or headed It has been determined that this rule fishing activities of open access vessels and gutted fish that are then filleted and is not significant for purposes of (detailed in subpart F of this part). Any packaged for retail sale. At § 660.114(b), Executive Order 12866. commercial vessel that is not registered trawl fishery—economic data collection to a limited entry permit and which program, the definition of processor is List of Subjects in 50 CFR Part 660 takes and retains, possesses or lands further refined to describe which Administrative practice and groundfish is a participant in the open shorebased processors are required to procedure, Fisheries, Fishing, Reporting access groundfish fishery. submit their economic data collection and recordkeeping requirements. * * * * * forms. (2) [Reserved] Dated: August 25, 2011. Pacific Coast Groundfish Fishery * * * * * Samuel D. Rauch III, Management Plan or PCGFMP means the Fishery Management Plan for the ■ Deputy Assistant Administrator for 3. In § 660.12, revise paragraphs (a)(8), Regulatory Programs, National Marine Washington, Oregon, and California (e)(7), (f)(5), and (f)(9) to read as follows: Fisheries Service. Groundfish Fishery developed by the Council and approved by the Secretary § 660.12 General groundfish prohibitions. For the reasons set out in the on January 4, 1982, and as it may be * * * * * preamble, part 660 is amended as subsequently amended. (a) * * * follows: * * * * * (8) Fail to sort, prior to the first Person, as it applies to limited entry weighing after offloading, those PART 660—FISHERIES OFF WEST groundfish species or species groups for COAST STATES and open access fisheries conducted under, subparts C through F of this part which there is a trip limit, size limit, scientific sorting designation, quota, ■ 1. The authority citation for part 660 means any individual, corporation, harvest guideline, ACT, ACL or OY, if continues to read as follows: partnership, association or other entity (whether or not organized or existing the vessel fished or landed in an area Authority: 16 U.S.C. 1801 et seq., 16 under the laws of any state), and any during a time when such trip limit, size U.S.C. 773 et seq., and 16 U.S.C. 7001 et seq. Federal, state, or local government, or limit, scientific sorting designation, ■ 2. In § 660.11, revise the definitions any entity of any such government that quota, harvest guideline, ACT, ACL or for ‘‘B MSY’’, Catch monitor’’, is eligible to own a documented vessel OY applied; except as specified at ‘‘Commercial harvest guideline’’, ‘‘Open under the terms of 46 U.S.C. 12102(a). § 660.130(d), for vessels participating in access fishery’’, ‘‘Pacific Coast Processing or to process means the the Pacific whiting sectors. Groundfish Fishery Management Plan or preparation or packaging of groundfish * * * * * PCGFMP’’, ‘‘Person’’, ‘‘Processing or to to render it suitable for human (e) * * *

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(7) Fail to provide departure or cease 30 calendar days after the date on the (4) EFPs are authorized and governed fishing reports specified at IAD, unless there is an appeal. by regulations at §§ 660.60(f) and §§ 660.113(c), 660.150(c), 660.160(c); * * * * * 600.745. § 660.216(c); or § 660.316(c). ■ 6. In § 660.25, revise paragraphs (b)(2), * * * * * * * * * * (b)(3)(v) and (vi), and (b)(4)(iv)(B) to (f) * * * (f) * * * read as follows: (2) The commercial harvest guideline for Pacific whiting is allocated among (5) Receive, purchase, or take custody, § 660.25 Permits. three sectors, as follows: 34 percent for control, or possession of a delivery the C/P Coop Program; 24 percent for without catch monitor coverage when * * * * * the MS Coop Program; and 42 percent such coverage is required under (b) * * * for the Shore based IFQ Program. No § 660.140(i). (2) Mothership (MS) permit. The MS permit conveys a conditional privilege more than 5 percent of the Shore based * * * * * for the vessel registered to it, to IFQ Program allocation may be taken (9) Fail to meet the catch monitor participate in the MS fishery by and retained south of 42° N. lat. before provider responsibilities specified at receiving and processing deliveries of the start of the primary Pacific whiting § 660.17(e). groundfish in the Pacific whiting season north of 42° N. lat. Specific * * * * * mothership sector. An MS permit is a sector allocations for a given calendar ■ 4. In § 660.17, revise paragraphs (b)(3), type of limited entry permit. An MS year are found in Tables 1a through c and (e)(5) to read as follows: permit does not have any endorsements and 2a through c of this subpart. Set affixed to the permit. The provisions for asides for other species for the at-sea § 660.17 Catch monitors and catch the MS permit, including eligibility, whiting fishery for a given calendar year monitor providers. renewal, change of permit ownership, are found in Tables 1d and 2d of this * * * * * vessel registration, fees, and appeals are subpart. (b) * * * described at § 660.150 (f). * * * * * (3) Have not been decertified as an (3) * * * (k) Exempted fishing permit set- observer or catch monitor under (v) MS/CV endorsement. An MS/CV asides. Annual set-asides for EFPs provisions in §§ 660.18(e), and endorsement on a trawl limited entry described at §§ 660.60(f) and 600.745, 660.140(h)(6), 660.150(g)(6), and permit conveys a conditional privilege will be deducted from the ACL or ACT 660.160(g)(6). that allows a vessel registered to it to when specified. Set-aside amounts will fish in either the coop or non-coop * * * * * be adjusted through the biennial harvest fishery in the MS Coop Program specifications and management (e) * * * described at § 660.150. The provisions measures process. (5) Respond to industry requests for for the MS/CV-endorsed limited entry * * * * * catch monitors. A catch monitor permit, including eligibility, renewal, ■ 8. In § 660.60, paragraphs (c)(1)(ii) and provider must provide a catch monitor change of permit ownership, vessel (iii), and (f)(3) are revised to read as for assignment pursuant to the terms of registration, combinations, follows: the contractual relationship with the accumulation limits, fees, and appeals first receiver to fulfill first receiver are described at § 660.150(g). § 660.60 Specifications and management requirements for catch monitor coverage (vi) C/P endorsement. A C/P measures. under § 660.140(i)(1). An alternate catch endorsement on a trawl limited entry * * * * * monitor must be supplied in each case permit conveys a conditional privilege (c) * * * where injury or illness prevents the that allows a vessel registered to it to (1) * * * catch monitor from performing his or fish in the C/P Coop Program described (ii) Differential trip landing limits and her duties or where the catch monitor at § 660.160. The provisions for the frequency limits based on gear type, resigns prior to completion of his or her C/P-endorsed limited entry permit, closed seasons, and bycatch limits. Trip duties. If the catch monitor provider is including eligibility, renewal, change of landing and frequency limits that differ unable to respond to an industry request permit ownership, vessel registration, by gear type and closed seasons may be for catch monitor coverage from a first combinations, fees, and appeals are imposed or adjusted on a biennial or receiver for whom the provider is in a described at § 660.160(e). more frequent basis for the purpose of contractual relationship due to the lack * * * * * rebuilding and protecting overfished or of available catch monitors, the provider (4) * * * depleted stocks. must report it to NMFS at least 4 hours (iv) * * * (iii) Type of limited entry trawl gear prior to the expected assignment time. (B) Effective date. The change in on board. Limits on the type of limited * * * * * ownership of the permit or change in entry trawl gear on board a vessel may be imposed on a biennial or more ■ 5. In § 660.18, revise paragraphs (e)(3) the permit holder will be effective on frequent basis. Requirements and to read as follows: the day the change is approved by SFD, unless there is a concurrent change in restrictions on limited entry trawl gear § 660.18 Certification and decertification the vessel registered to the permit. type are found at § 660.130(b). procedures for catch monitors and catch Requirements for changing the vessel * * * * * monitor providers. registered to the permit are described at (f) * * * * * * * * paragraph (b)(4)(v) of this section. (3) U.S. vessels operating under an (e) * * * * * * * * EFP are subject to restrictions in (3) Issuance of IAD. Upon ■ subparts C through G of this part unless 7. In § 660.55, (b)(4), (f)(2), and (k) are otherwise provided in the permit. determination that decertification is revised to read as follows: warranted, the decertification official * * * * * will issue a written IAD. The IAD will § 660.55 Allocations. ■ 9. In § 660.70, the introductory text identify the specific reasons for the * * * * * and paragraph (p) are revised to read as action taken. Decertification is effective (b) * * * follows:

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§ 660.70 Groundfish conservation areas. Table 3 (South) of subpart F and may be longitude coordinates in §§ 660.76 In § 660.11, a groundfish conservation modified by NMFS inseason pursuant to through 660.79. area is defined in part as ‘‘a geographic § 660.60(c). Non-trawl RCA boundaries * * * * * are defined by specific latitude and area defined by coordinates expressed ■ 11. In § 660.76, the introductory text longitude coordinates and are provided in degrees latitude and longitude, is revised to read as follows: wherein fishing by a particular gear type in §§ 660.71 through 660.74. or types may be prohibited.’’ While (3) Recreational Rockfish § 660.76 EFH Conservation Areas. some groundfish conservation areas may Conservation Areas. Recreational RCAs EFH Conservation Areas are be designed with the intent that their are closed areas intended to protect designated to minimize to the extent shape be determined by ocean bottom overfished rockfish species. practicable adverse effects to EFH depth contours, their shapes are defined Recreational RCAs may either have caused by fishing (16 U.S.C. 1853 in regulation by latitude/longitude boundaries defined by general depth section 303(a)(7)). The boundaries of coordinates and are enforced by those contours or boundaries defined by areas designated as Groundfish EFH coordinates. Latitude/longitude specific latitude and longitude Conservation Areas are defined by coordinates designating the large-scale coordinates intended to approximate straight lines connecting a series of boundaries for rockfish conservation particular depth contours. Boundaries latitude and longitude coordinates. This areas are found in §§ 660.71 through for the recreational RCAs throughout the section provides coordinates outlining 660.74. Fishing activity that is year are provided in the text in subpart the boundaries of the coastwide EFH prohibited or permitted within a G under each state (Washington, Oregon Conservation Area. Section 660.77 particular groundfish conservation area and California) and may be modified by provides coordinates outlining the is detailed at subparts D through G of NMFS inseason pursuant to § 660.60(c). boundaries of EFH Conservation Areas part 660. Recreational RCA boundaries are that occur wholly off the coast of * * * * * defined by specific latitude and Washington. Section 660.78 provides (p) Rockfish Conservation Areas. RCA longitude coordinates and are provided coordinates outlining the boundaries of restrictions are detailed in subparts D in §§ 660.71 through 660.74. EFH Conservation Areas that occur through G. RCAs may apply to a single ■ 10. In § 660.75, the introductory text wholly off the coast of Oregon. Section gear type or to a group of gear types is revised to read as follows: 660.79 provides coordinates outlining such as ‘‘trawl RCAs’’ or ‘‘non-trawl the boundaries of EFH Conservation § 660.75 Essential Fish Habitat (EFH). RCAs.’’ Specific latitude and longitude Areas that occur wholly off the coast of coordinates for RCA boundaries that Essential fish habitat (EFH) is defined California. Fishing activity that is approximate the depth contours as those waters and substrate necessary prohibited or permitted within the EEZ selected for trawl, non-trawl, and to fish for spawning, breeding, feeding in a particular area designated as a recreational RCAs are provided in or growth to maturity (16 U.S.C. 1802 groundfish EFH Conservation Area is §§ 660.71 through 660.74. Also provided (10)). EFH for Pacific Coast Groundfish detailed at § 660.11; §§ 660.112 and in §§ 660.71 through 660.74, are includes all waters and substrate within 660.130; §§ 660.212 and 660.230; references to islands and rocks that areas with a depth less than or equal to §§ 660.312 and 660.330; and §§ 660.360. serve as reference points for the RCAs. 3,500 m (1,914 fm) shoreward to the * * * * * (1) Trawl (Limited Entry and Open mean higher high water level or the Access Nongroundfish Trawl Gears) upriver extent of saltwater intrusion ■ 12. In § 660.77, the introductory text Rockfish Conservation Areas. Trawl (defined as upstream and landward to is revised to read as follows: RCAs are intended to protect a complex where ocean-derived salts measure less § 660.77 EFH Conservation Areas off the of species, such as overfished shelf than 0.5 parts per thousand during the Coast of Washington. rockfish species, and have boundaries period of average annual low flow). Boundary line coordinates for EFH defined by specific latitude and Seamounts in depths greater than 3,500 Conservation Areas off Washington are longitude coordinates intended to m (1,914 fm) are also included due to provided in this section. Fishing activity approximate particular depth contours. their ecological importance to that is prohibited or permitted within Boundaries for the trawl RCA groundfish. Geographically, EFH for the EEZ in a particular area designated throughout the year are provided in Pacific Coast groundfish includes both a as a groundfish EFH Conservation Area Table 1 (North) and Table 1 (South), and large band of marine waters that extends is detailed at §§ 660.11; §§ 660.112 and may be modified by NMFS inseason from the Northern edge of the EEZ at the 660.130; §§ 660.212 and 660.230; pursuant to § 660.60(c). Trawl RCA U.S. border with Canada to the Southern §§ 660.312 and 660.330; and §§ 660.360. boundaries are defined by specific edge of the EEZ at the U.S. border with latitude and longitude coordinates and Mexico, and inland within bays and * * * * * are provided in §§ 660.71 through estuaries. The seaward extent of EFH is ■ 13. In § 660.78, the introductory text 660.74. consistent with the westward edge of is revised to read as follows: (2) Non-Trawl (Limited Entry Fixed the EEZ for areas approximately north of Gear and Open Access Non-trawl Gears) Cape Mendocino. Approximately south § 660.78 EFH Conservation Areas off the Coast of Oregon. Rockfish Conservation Areas. Non-trawl of Cape Mendocino, the 3500 m depth RCAs are intended to protect a complex contour and EFH is substantially Boundary line coordinates for EFH of species, such as overfished shelf shoreward of the seaward boundary of Conservation Areas off Oregon are rockfish species, and have boundaries the EEZ. There are also numerous provided in this section. Fishing activity defined by specific latitude and discrete areas seaward of the main 3500 that is prohibited or permitted within longitude coordinates intended to m depth contour where the ocean floor the EEZ in a particular area designated approximate particular depth contours. rises to depths less than 3500 m and as a groundfish EFH Conservation Area Boundaries for the non-trawl RCA therefore are also EFH. The seaward is detailed at §§ 660.11; §§ 660.112 and throughout the year are provided in boundary of EFH and additional areas of 660.130; §§ 660.212 and 660.230; Table 2 (North), and Table 2 (South) of EFH are defined by straight lines §§ 660.312 and 660.330; and §§ 660.360. subpart E, and Table 3 (North) and connecting a series of latitude and * * * * *

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■ 14. In § 660.79, the introductory text ■ 16. In § 660.113, paragraphs (c)(3)(i) 660.74. South of 40°10′ N. lat., selective is revised to read as follows: introductory text and (ii) and (d)(3)(i) flatfish gear is permitted, but not introductory text and (ii) are revised to required, shoreward of the RCA. The § 660.79 EFH Conservation Areas off the read as follows: use of selective flatfish trawl gear is Coast of California. permitted seaward of the RCA Boundary line coordinates for EFH § 660.113 Trawl fishery—recordkeeping coastwide. Conservation Areas off California are and reporting. * * * * * provided in this section. Fishing activity * * * * * (e) * * * that is prohibited or permitted within (c) * * * (5) * * * the EEZ in a particular area designated (3) * * * (ii) EFHCAs for bottom contact gear, as a groundfish EFH Conservation Area (i) The designated coop manager for which includes bottom trawl gear. is detailed at §§ 660.11; §§ 660.112 and the mothership coop must submit an Fishing with bottom contact gear, 660.130; §§ 660.212 and 660.230; annual report to the Council for its including bottom trawl gear is §§ 660.312 and 660.330; and §§ 660.360. November meeting each year. The prohibited within the following * * * * * annual coop report will contain EFHCAs, which are defined by specific ■ 15. In § 660.112, paragraphs (a)(3)(i), information about the current year’s latitude and longitude coordinates at (a)(5)(vi), (c)(1)(ii), and (c)(3), are fishery, including: §§ 660.75 through 660.79: Thompson revised and paragraph (c)(5) is removed. * * * * * Seamount, President Jackson Seamount, The revisions read as follows: (ii) The annual coop report submitted Cordell Bank (50 fm (91 m) isobath), to the Council must be finalized to Harris Point, Richardson Rock, § 660.112 Trawl fishery—prohibitions. capture any additional fishing activity Scorpion, Painted Cave, Anacapa Island, * * * * * that year and submitted to NMFS by Carrington Point, Judith Rock, Skunk (a) * * * March 31 of the following year before a Point, Footprint, Gull Island, South (3) * * * coop permit is issued for the following Point, and Santa Barbara. Fishing with (i) Fail to comply with all year. bottom contact gear is also prohibited recordkeeping and reporting * * * * * within the Davidson Seamount EFH requirements at § 660.13; including (d) * * * Area, which is defined with specific failure to submit information, (3) * * * latitude and longitude coordinates at submission of inaccurate information, or (i) The designated coop manager for § 660.79. intentionally submitting false ■ the C/P coop must submit an annual 18. In § 660.131, paragraphs (c)(4) and information on any report required at report to the Council for its November (d) are revised as follows: § 660.13(d), and § 660.113. meeting each year. The annual coop § 660.131 Pacific whiting fishery * * * * * report will contain information about management measures. (5) * * * the current year’s fishery, including: * * * * * (vi) Fish with bottom trawl gear (ii) The annual coop report submitted (defined at § 660.11), other than (c) * * * to the Council must be finalized to (4) Pacific whiting bycatch reduction demersal seine, unless otherwise capture any additional fishing activity areas (BRAs). Vessels using limited specified in this section or § 660.130, that year and submitted to NMFS by entry midwater trawl gear during the within the EEZ in the following areas March 31 of the following year before a primary whiting season may be (defined at § 660.79): Eel River Canyon, coop permit is issued for the following prohibited from fishing shoreward of a Blunts Reef, Mendocino Ridge, Delgada year. boundary line approximating the 75-fm Canyon, Tolo Bank, Point Arena North, * * * * * (137-m), 100-fm (183-m) or 150-fm Point Arena South Biogenic Area, ■ (274-m) depth contours. Latitude and Cordell Bank/Biogenic Area, Farallon 17. In § 660.130, (c)(2) introductory longitude coordinates for the boundary Islands/Fanny Shoal, Half Moon Bay, text, (c)(2)(i), and (e)(5)(ii) are revised to lines approximating the depth contours Monterey Bay/Canyon, Point Sur Deep, read as follows: are provided at §§ 660.72 and 660.73. Big Sur Coast/Port San Luis, East San § 660.130 Trawl fishery—management Closures may be implemented inseason Lucia Bank, Point Conception, Hidden measures. for a sector(s) through automatic action, Reef/Kidney Bank (within Cowcod * * * * * defined at § 660.60(d), when NMFS Conservation Area West), Catalina (c) * * * projects that a sector will exceed an Island, Potato Bank (within Cowcod (2) Fishing with small footrope trawl allocation for a non-whiting groundfish Conservation Area West), Cherry Bank gear. North of 40°10′ N. lat., it is species specified for that sector before (within Cowcod Conservation Area unlawful for any vessel using small the sector’s whiting allocation is West), and Cowcod EFH Conservation footrope gear (except selective flatfish projected to be reached. Area East. gear) to fish for groundfish or have small (d) Eureka area trip limits. Trip * * * * * footrope trawl gear (except selective landing or frequency limits may be (c) * * * flatfish gear) onboard while fishing established, modified, or removed under (1) * * * shoreward of the RCA defined at § 660.60 or this paragraph, specifying (ii) The fish are processed by a waste- paragraph (e) of this section and at the amount of Pacific whiting that may processing vessel according to §§ 660.70 through 660.74. South of be taken and retained, possessed, or § 660.131(g); or 40°10′ N. lat., small footrope gear is landed by a vessel that, at any time * * * * * required shoreward of the RCA. Small during a fishing trip, fished in the (3) Operate as a waste-processing footrope gear is permitted seaward of fishery management area shoreward of vessel within 48 hours of a primary the RCA coastwide. the 100 fathom (183 m) contour (as season for Pacific whiting in which that (i) North of 40°10′ N. lat., selective shown on NOAA Charts 18580, 18600, vessel operates as a catcher/processor or flatfish gear is required shoreward of the and 18620) in the Eureka area (from mothership, according to § 660.131(g). RCA defined at paragraph (e) of this 43° 00′ to 40° 30′ N. lat.). Unless * * * * * section and at §§ 660.70, through otherwise specified, no more than

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10,000-lb (4,536 kg) of whiting may be (iv) * * * sablefish tier limit fishery ’’ and add a taken and retained, possessed, or landed (B) * * * definition for ‘‘Sablefish primary by a vessel that, at any time during a (2) Must have not informed the fishery’’ in its place and revise the fishing trip, fished in the fishery provider prior to the time of definition for ‘‘Sablefish primary management area shoreward of the 100 embarkation that he or she is season’’ to read as follows: fm (183 m) contour (as shown on NOAA experiencing a mental illness or a Charts 18580, 18600, and 18620) in the physical ailment or injury developed § 660.211 Fixed gear fishery—definitions. Eureka management area (defined at since submission of the physician’s * * * * * § 660.11). statement (required in paragraph Sablefish primary fishery means, for * * * * * (j)(5)(xi)(B)(2) of this section) that would the limited entry fixed gear sablefish prevent him or her from performing his ° ■ fishery north of 36 N. lat, the fishery 19. In § 660.140, paragraphs (c)(1) or her assigned duties; and, where vessels registered to at least one introductory text (h)(3)(i) introductory limited entry permit with both a gear text, (h)(5)(xi)(I)(2), are revised to read * * * * * (xi) * * * endorsement for longline or trap (or pot) as follows: (A)* * * gear and a sablefish endorsement fish § 660.140 Shorebased IFQ Program. (5) * * * up to a specified tier limit and when (ii) Any information regarding any they are not eligible to fish in the DTL * * * * * action prohibited under § 660.12(e); (c) * * * fishery. § 660.112(a)(4); or § 600.725(o), (t) and (1) IFQ species. IFQ species are those Sablefish primary season means, for (u); groundfish species and Pacific halibut the limited entry fixed gear sablefish ° in the exclusive economic zone or * * * * * fishery north of 36 N. lat, the period adjacent state waters off Washington, (B) * * * when vessels registered to at least one (10) * * * Oregon and California, under the limited entry permit with both a gear (ii) Any information regarding any jurisdiction of the Council, for which endorsement for longline or trap (or pot) action prohibited under § 660.12(e); QS and IBQ are issued. Groupings and gear and a sablefish endorsement, are § 660.112(a)(4); or § 600.725(o), (t) and allowed to fish in the sablefish primary area subdivisions for IFQ species are (u); those groupings and area subdivisions fishery described at § 660.231 of this for which ACLs or ACTs are specified * * * * * subpart. in the Tables 1a through 2d, and those ■ 21. In § 660.160, remove duplicate * * * * * for which there is an area-specific paragraph (e)(1) and revise remainig ■ 23. In § 660.212, paragraphs (a)(2), precautionary harvest policy. The lists paragraph (e)(1)to read as follows: and (d)(1) are revised to read as follows: of individual groundfish species § 660.160 Catcher/processor (C/P) Coop § 660.212 Fixed gear fishery—prohibitions. included in the minor shelf complex Program. north of 40°10′ N. lat., minor shelf (a) * * * ° ′ * * * * * complex south of 40 10 N. lat., minor (e) * * * (2) Take, retain, possess, or land more slope complex north 40°10′ N. lat., (1) General. Any vessel participating than a single cumulative limit of a minor slope complex south of 40°10′ N. in the C/P sector of the non-tribal particular species, per vessel, per lat., and in the other flatfish complex primary Pacific whiting fishery during applicable cumulative limit period, are specified under the definition of the season described at § 660.131(b) of except for sablefish taken in the limited ‘‘groundfish’’ at § 660.11. The following this subpart must be registered to a valid entry, fixed gear sablefish primary are the IFQ species: limited entry permit with a C/P season from a vessel authorized to fish * * * * * endorsement. A C/P-endorsed permit is in that season, as described at § 660.231 (h) * * * a limited entry permit and is subject to and except for IFQ species taken in the (3) * * * * the limited entry permit provisions Shorebased IFQ Program from a vessel (i) Owners of vessels required to carry given at § 660.25(b). authorized under gear switching observers under paragraph (h)(1) of this (i) Non-severable. A C/P endorsement provisions as described at § 660.140(k). section must arrange for observer is not severable from the limited entry * * * * * services from a permitted observer trawl permit, and therefore, the (d) * * * provider, except that: endorsement may not be transferred (1) Take, retain, possess or land * * * * * separately from the limited entry trawl sablefish under the tier limits provided (5) * * * permit. for the limited entry, fixed gear sablefish (xi) * * * (ii) Restriction on C/P vessel operating primary season, described in (I) * * * as a catcher vessel in the mothership § 660.231(b)(3), from a vessel that is not (2) Any information regarding any sector. A vessel registered to a C/P- registered to a limited entry permit with action prohibited under § 660.12(e); endorsed permit cannot operate as a a sablefish endorsement. § 660.112(a)(4); or § 600.725(o), (t) and catcher vessel delivering unprocessed * * * * * Pacific whiting to a mothership (u); ■ 24. In § 660.230, paragraphs (a) and processor during the same calendar year * * * * * (d)(14) are revised to read as follows: ■ it participates in the C/P sector. 20. In § 660.150, remove duplicate (iii) Restriction on C/P vessel (f)(2) paragraph marked [Reserved]; § 660.230 Fixed gear fishery-management operating as mothership. A vessel measures. revise paragraphs (j)(5)(iv)(B)(2), registered to a C/P-endorsed permit (a) General. Most species taken in (j)(5)(xi)(A)(5)(ii), and (j)(5)(xi)(B)(10)(ii) cannot operate as a mothership during to read as follows: limited entry fixed gear (longline and the same calendar year it participates in pot/trap) fisheries will be managed with § 660.150 Mothership (MS) Coop Program. the C/P sector. cumulative trip limits (see trip limits in * * * * * * * * * * Tables 2 (North) and 2 (South) of this (j) * * * ■ 22. In § 660.211, remove the definition subpart), size limits (see § 660.60(h)(5)), (5) * * * for ‘‘Sablefish primary fishery or seasons (see trip limits in Tables 2

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(North) and 2 (South) of this subpart within the Davidson Seamount EFH groundfish vessels operating south of and sablefish primary season details in Area, which is defined by specific Point Conception must adhere to CCA § 660.231), gear restrictions (see latitude and longitude coordinates at restrictions (see paragraph (d)(11) of this paragraph (b) of this section), and closed § 660.75. section and § 660.70). Retention of areas (see paragraph (d) of this section * * * * * yelloweye rockfish and canary rockfish and §§ 660.70 through 660.79). Cowcod ■ 25. In § 660.231, paragraph (b)(1) is is prohibited in all open access retention is prohibited in all fisheries, revised to read as follows: fisheries. For information on the open and groundfish vessels operating south access daily/weekly trip limit fishery for of Point Conception must adhere to CCA § 660.231 Limited entry fixed gear sablefish, see § 660.332 of this subpart restrictions (see paragraph (d)(10) of this sablefish primary fishery. and the trip limits in Tables 3 (North) section and § 660.70). Yelloweye * * * * * and 3 (South) of this subpart. Open rockfish and canary rockfish retention is (b) * * * access vessels are subject to daily or prohibited in the limited entry fixed (1) Season dates. North of 36° N. lat., weekly sablefish limits in addition to gear fisheries. Regulations governing the sablefish primary season for the cumulative limits for each cumulative and tier limits for the limited entry, limited entry, fixed gear, sablefish- limit period. Only one sablefish landing fixed gear sablefish primary season endorsed vessels begins at 12 noon local per week may be made in excess of the north of 36° N. lat. are found in time on April 1 and closes at 12 noon daily trip limit and, if the vessel chooses § 660.231. Vessels not participating in local time on October 31, or closes for to make a landing in excess of that daily the sablefish primary season are subject an individual permit holder when that trip limit, then that is the only sablefish to daily or weekly sablefish limits in permit holder’s tier limit has been landing permitted for that week. The addition to cumulative limits for each reached, whichever is earlier, unless trip limit for black rockfish caught with cumulative limit period. Only one otherwise announced by the Regional hook-and-line gear also applies, see sablefish landing per week may be made Administrator through the routine paragraph (e) of this section. Open in excess of the daily trip limit and, if management measures process access vessels that fish with non- the vessel chooses to make a landing in described at § 660.60(c). groundfish trawl gear or in the salmon ° ′ excess of that daily trip limit, then that * * * * * troll fishery north of 40 10 N. lat. are is the only sablefish landing permitted ■ 26. In § 660.232, paragraph (a)(1) is subject the cumulative limits and closed for that week. The trip limit for black revised to read as follows: areas (except the pink shrimp fishery rockfish caught with hook-and-line gear which is not subject to RCA restrictions) also applies, see § 660.230(e). The trip § 660.232 Limited entry daily trip limit listed in Tables 3 (North) and 3 (South) limits in Table 2 (North) and Table 2 (DTL) fishery for sablefish. of this subpart. Federal commercial (South) of this subpart apply to vessels (a) * * * groundfish regulations are not intended participating in the limited entry (1) Before the start of the sablefish to supersede any more restrictive state groundfish fixed gear fishery and may primary season, all sablefish landings commercial groundfish regulations not be exceeded. Federal commercial made by a vessel authorized by relating to federally managed groundfish regulations are not intended § 660.231(a) to fish in the sablefish groundfish. to supersede any more restrictive state primary season will be subject to the * * * * * commercial groundfish regulations restrictions and limits of the limited (d) * * * relating to federally-managed entry daily and/or weekly trip limit (11) * * * groundfish. (DTL) fishery for sablefish specified in (i) Fishing for ‘‘other flatfish’’ is * * * * * this section and which is governed by permitted within the CCAs under the (d) * * * routine management measures imposed following conditions: when using no (14) Essential Fish Habitat under § 660.60(c). more than 12 hooks, ‘‘Number 2’’ or Conservation Areas (EFHCA). An * * * * * smaller, which measure no more than EFHCA, a type of closed area, is a ■ 27. In § 660.330, paragraphs (a), 11 mm (0.44 inches) point to shank, and geographic area defined by coordinates (d)(11)(i), (d)(11)(ii), (d)(12)(iv), up to two expressed in degrees of latitude and (d)(13)(iv)(B), (d)(16)(i)(A), (d)(16)(i)(E), 1-lb (0.45 kg) weights per line; and longitude at §§ 660.75 through 660.79, and (e) are revised to read as follows: provided a valid declaration report as where specified types of fishing are required at § 660.13(d), has been filed prohibited in accordance with § 660.12. § 660.330 Open access fishery— with NMFS OLE. EFHCAs apply to vessels using ‘‘bottom management measures. (ii) Fishing for rockfish and lingcod is contact gear,’’ which is defined at (a) General. Groundfish species taken permitted shoreward of the 20 fm (37 m) § 660.11, to include limited entry fixed in open access fisheries will be managed depth contour within the CCAs when gear (longline and pot/trap,) among with cumulative trip limits (see trip trip limits authorize such fishing, and other gear types. Fishing with all bottom limits in Tables 3 (North) and 3 (South) provided a valid declaration report as contact gear, including longline and of this subpart), size limits (see required at § 660.13(d), has been filed pot/trap gear, is prohibited within the § 660.60(h)(5)), seasons (see seasons in with NMFS OLE. following EFHCAs, which are defined Tables 3 (North) and 3 (South) of this (12) * * * by specific latitude and longitude subpart), gear restrictions (see paragraph (iv) Fishing for ‘‘other flatfish’’ off coordinates at §§ 660.75 through 660.79: (b) of this section), and closed areas (see California (between 42° N. lat. south to Thompson Seamount, President Jackson paragraph (d) of this section and the U.S./Mexico border) is permitted Seamount, Cordell Bank (50 fm (91 m) §§ 660.70 through 660.79). Unless within the nontrawl RCA with fixed isobath), Harris Point, Richardson Rock, otherwise specified, a vessel operating gear only under the following Scorpion, Painted Cave, Anacapa Island, in the open access fishery is subject to, conditions: When using no more than Carrington Point, Judith Rock, Skunk and must not exceed any trip limit, 12 hooks, ‘‘Number 2’’ or smaller, which Point, Footprint, Gull Island, South frequency limit, and/or size limit for the measure no more than 11 mm (0.44 Point, and Santa Barbara. Fishing with open access fishery. Cowcod retention is inches) point to shank, and up to two 1- bottom contact gear is also prohibited prohibited in all fisheries and lb (0.91 kg) weights per line when trip

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limits authorize such fishing; and in § 660.60(h)(7), do not apply to the • Hand delivery to the Federal provided a valid declaration report as black rockfish per-trip limits. Building: 709 West 9th Street, Room required at § 660.13(d), has been filed [FR Doc. 2011–22162 Filed 8–29–11; 8:45 am] 420A, Juneau, AK. with NMFS OLE. BILLING CODE 3510–22–P Comments must be submitted by one (13) * * * of the above methods to ensure that the (iv) * * * comments are received, documented, (B) When the shoreward line of the DEPARTMENT OF COMMERCE and considered by NMFS. Comments trawl RCA is shallower than 100 fm (183 sent by any other method, to any other m), vessels using ridgeback prawn trawl National Oceanic and Atmospheric address or individual, or received after gear south of 34°27.00′ N. lat. may Administration the end of the comment period, may not operate out to the 100 fm (183 m) be considered. boundary line specified at § 660.73, 50 CFR Part 679 All comments received are a part of the public record and will generally be when a valid declaration report as [Docket No. 101126521–0640–02] required at § 660.13(d), has been filed posted to http://www.regulations.gov without change. All Personal Identifying with NMFS OLE. Groundfish caught RIN 0648–XA672 with ridgeback prawn trawl gear are Information (e.g., name, address) subject to the limits in Table 3 (North) Fisheries of the Exclusive Economic voluntarily submitted by the commenter and Table 3 (South) of this subpart. Zone Off Alaska; Other Rockfish, Other may be publicly accessible. Do not Flatfish, Sharks, and Skates in the submit Confidential Business * * * * * Information or otherwise sensitive or (16) Bering Sea and Aleutian Islands Management Area protected information. (i) * * * NMFS will accept anonymous (A) Seaward of a boundary line AGENCY: National Marine Fisheries comments (enter N/A in the required approximating the 700-fm (1280-m) Service (NMFS), National Oceanic and fields, if you wish to remain depth contour. Fishing with bottom Atmospheric Administration (NOAA), anonymous). Attachments to electronic trawl gear is prohibited in waters of Commerce. comments will be accepted in Microsoft depths greater than 700 fm (1280 m) ACTION: Temporary rule; apportionment Word, Excel, WordPerfect, or Adobe within the EFH, as defined by specific of reserves; request for comments. portable document file (pdf) formats latitude and longitude coordinates at only. § 660.76. SUMMARY: NMFS apportions amounts of FOR FURTHER INFORMATION CONTACT: * * * * * the non-specified reserve to the initial Obren Davis, 907–586–7228. total allowable catch of other rockfish, (E) EFHCAs for bottom contact gear, SUPPLEMENTARY INFORMATION: NMFS other flatfish, sharks, and skates in the which includes bottom trawl gear. manages the groundfish fishery in the Bering Sea and Aleutian Islands Fishing with bottom contact gear is BSAI exclusive economic zone management area (BSAI). This action is prohibited within the following according to the Fishery Management necessary to allow the fisheries to EFHCAs, which are defined by specific Plan for Groundfish of the Bering Sea continue operating. It is intended to latitude and longitude coordinates at and Aleutian Islands Management Area promote the goals and objectives of the §§ 660.78 through 660.79: Thompson (FMP) prepared by the North Pacific fishery management plan for the BSAI Seamount, President Jackson Seamount, Fishery Management Council under management area. Cordell Bank (50-fm (91-m) isobath), authority of the Magnuson-Stevens Harris Point, Richardson Rock, DATES: Effective August 25, 2011 Fishery Conservation and Management Scorpion, Painted Cave, Anacapa Island, through 2400 hrs, Alaska local time, Act. Regulations governing fishing by Carrington Point, Judith Rock, Skunk December 31, 2011. Comments must be U.S. vessels in accordance with the FMP Point, Footprint, Gull Island, South received at the following address no appear at subpart H of 50 CFR part 600 Point, and Santa Barbara. Fishing with later than 4:30 p.m., Alaska local time, and 50 CFR part 679. bottom contact gear is also prohibited September 9, 2011. The 2011 initial total allowable catch within the Davidson Seamount EFH ADDRESSES: Send comments to Glenn (ITAC) of Aleutian Islands (AI) other Area, which is defined by specific Merrill, Assistant Regional rockfish, BSAI other flatfish, BSAI latitude and longitude coordinates at Administrator, Alaska Region, NMFS, sharks, and BSAI skates was established § 660.75. Attn: Ellen Sebastian. You may submit as 425 metric tons (mt), 2,550 mt, 43 mt, * * * * * comments, identified by FDMS Docket and 14,025 mt, respectively, by the final (e) Black rockfish fishery Number NOAA–NMFS–2011–0212, by 2011 and 2012 harvest specifications for management. The trip limit for black any one of the following methods: groundfish of the BSAI (76 FR 11139, rockfish (Sebastes melanops) for • Electronic Submissions: Submit all March 1, 2011). In accordance with commercial fishing vessels using hook- electronic public comments via the § 679.20(a)(3) the Regional and-line gear between the U.S.-Canada Federal eRulemaking Portal Web site at Administrator, Alaska Region, NMFS, border and Cape Alava (48°09.50′ N. http://www.regulations.gov. To submit has reviewed the most current available lat.), and between Destruction Island comments via the e-Rulemaking Portal, data and finds that the ITACs for AI (47°40′ N. lat.) and Leadbetter Point first click the ‘‘submit a comment’’ icon, other rockfish, BSAI other flatfish, BSAI (46°38.17′ N. lat.), is 100-lbs (45 kg) or then enter [NOAA–NMFS–2011–0212] sharks, and BSAI skates in the BSAI 30 percent, by weight of all fish on in the keyword search. Locate the need to be supplemented from the non- board, whichever is greater, per vessel document you wish to comment on specified reserve in order to promote per fishing trip. These per trip limits from the resulting list and click on the efficiency in the utilization of fishery apply to limited entry and open access ‘‘Submit a Comment’’ icon on the right resources in the BSAI and allow fishing fisheries, in conjunction with the of that line. operations to continue. cumulative trip limits and other • Mail: Submit written comments to Therefore, in accordance with management measures in §§ 660.230 P.O. Box 21668, Juneau, AK 99802. § 679.20(b)(3), NMFS apportions from and 660.330. The crossover provisions • Fax: (907) 586–7557. the non-specified reserve of groundfish

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75 mt, 450 mt, 7 mt, and 2,475 mt to the Administrator for Fisheries, NOAA, public comment because the most AI other rockfish, BSAI other flatfish, (AA) finds good cause to waive the recent, relevant data only became BSAI sharks, and BSAI skates ITACs, requirement to provide prior notice and available as of August 24, 2011. respectively. This apportionment is opportunity for public comment The AA also finds good cause to consistent with § 679.20(b)(1)(i) and pursuant to the authority set forth at waive the 30-day delay in the effective does not result in overfishing of a target 5 U.S.C. 553(b)(B) and date of this action under 5 U.S.C. species because the revised ITACs are § 679.20(b)(3)(iii)(A) as such a 553(d)(3). This finding is based upon equal to or less than the specifications requirement is impracticable and the reasons provided above for waiver of of the acceptable biological catch in the contrary to the public interest. This prior notice and opportunity for public final 2011 and 2012 harvest requirement is impracticable and comment. specifications for groundfish in the contrary to the public interest as it BSAI (76 FR 11139, March 1, 2011). would prevent NMFS from responding Under § 679.20(b)(3)(iii), interested The harvest specification for the 2011 to the most recent fisheries data in a persons are invited to submit written AI other rockfish, BSAI other flatfish, timely fashion and would delay the comments on this action (see BSAI sharks, and BSAI skates ITACs apportionment of the non-specified ADDRESSES) until September 9, 2011. included in the harvest specifications reserves of groundfish to the AI other This action is required by § 679.20 for groundfish in the BSAI is revised as rockfish, BSAI other flatfish, BSAI and is exempt from review under follows: 500 mt for AI other rockfish, sharks, and BSAI skates fisheries in the Executive Order 12866. 3,000 mt for BSAI other flatfish, 50 mt BSAI. Immediate notification is Authority: 16 U.S.C. 1801, et seq. for BSAI sharks, and 16,500 mt for BSAI necessary to allow for the orderly skates. conduct and efficient operation of this Dated: August 25, 2011. fishery, to allow the industry to plan for James P. Burgess, Classification the fishing season, and to avoid Acting Director, Office of Sustainable This action responds to the best potential disruption to the fishing fleet Fisheries, National Marine Fisheries Service. available information recently obtained and processors. NMFS was unable to [FR Doc. 2011–22139 Filed 8–25–11; 4:15 pm] from the fishery. The Assistant publish a notice providing time for BILLING CODE 3510–22–P

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Proposed Rules Federal Register Vol. 76, No. 168

Tuesday, August 30, 2011

This section of the FEDERAL REGISTER page number of this issue of the Federal is afforded the opportunity for a hearing contains notices to the public of the proposed Register and will be made available for on the petition. After the hearing, USDA issuance of rules and regulations. The public inspection in the Office of the would rule on the petition. The Act purpose of these notices is to give interested Docket Clerk during regular business provides that the district court of the persons an opportunity to participate in the hours, or can be viewed at: http:// United States in any district in which rule making prior to the adoption of the final rules. www.regulations.gov. All comments the handler is an inhabitant, or has his submitted in response to this rule will or her principal place of business, has be included in the record and will be jurisdiction to review USDA’s ruling on DEPARTMENT OF AGRICULTURE made available to the public. Please be the petition, provided an action is filed advised that the identity of the not later than 20 days after the date of Agricultural Marketing Service individuals or entities submitting the the entry of the ruling. comments will be made public on the This proposal invites comments on 7 CFR Part 948 Internet at the address provided above. revisions to the size requirements FOR FURTHER INFORMATION CONTACT: [Doc. No. AMS–FV–11–0051; FV11–948–1 currently prescribed under the order. PR] Barry Broadbent or Gary Olson, This proposed rule would revise the Northwest Marketing Field Office, size requirements for small U.S. No. 1 Irish Potatoes Grown in Colorado; Marketing Order Administration grade potatoes handled under the Modification of the Handling Branch, Fruit and Vegetable Programs, Colorado Area 3 handling regulations. Regulation for Area No. 3 AMS, USDA, Telephone: (503) 326– The rule would modify the current size 2724, Fax: (503) 326–7440, or E-mail: requirements to establish allowable size AGENCY: Agricultural Marketing Service, [email protected] or ranges for potatoes that measure less USDA. [email protected]. than 17⁄8 inches. This rule would allow ACTION: Proposed rule. Small businesses may request potatoes that measure 3⁄4-inch minimum information on complying with this diameter to 17⁄8 inches maximum SUMMARY: This rule invites comments regulation by contacting Laurel May, diameter to be handled if such potatoes on revisions to the size requirements Marketing Order Administration otherwise meet the requirements of the currently prescribed under the Colorado Branch, Fruit and Vegetable Programs, U.S. No. 1 grade. In addition, Size B potato marketing order (order). The AMS, USDA, 1400 Independence potatoes (11⁄2 inches minimum diameter order regulates the handling of Irish Avenue, SW., STOP 0237, Washington, to 21⁄4 inches maximum diameter) potatoes grown in Colorado, and is DC 20250–0237; Telephone: (202) 720– would also be allowed to be handled if administered locally by the Colorado 2491, Fax: (202) 720–8938, or E-mail: they otherwise meet the U.S. No. 1 Potato Administrative Committee for [email protected]. grade requirements. The size Area No. 3 (Committee). This rule requirements for U.S. No. 2 and better would modify the size requirements for SUPPLEMENTARY INFORMATION: This proposal is issued under Marketing grade potatoes that are 17⁄8 inches handling small potatoes that measure minimum diameter and larger would 7 Agreement No. 97 and Order No. 948, under 1 ⁄8 inches in diameter. This rule not be affected by this proposed change. would allow the handling of two size both as amended (7 CFR part 948), regulating the handling of Irish potatoes The rule was unanimously ranges, 3⁄4-inch minimum diameter to grown in Colorado, hereinafter referred recommended by the Committee at a 17⁄8 inches maximum diameter and Size to as the ‘‘order.’’ The order is effective meeting on May 12, 2011. The proposed B (11⁄2 to 21⁄4 inches), if such potatoes under the Agricultural Marketing changes are expected to enhance orderly otherwise meet the requirements of the marketing conditions and increase U.S. No. 1 grade. The revisions would Agreement Act of 1937, as amended (7 U.S.C. 601–674), hereinafter referred to returns for producers and handlers. promote orderly marketing by ensuring Section 948.22 authorizes the that only potatoes of certain similar size as the ‘‘Act.’’ The Department of Agriculture issuance of grade, size, quality, profiles are packed and shipped in the (USDA) is issuing this rule in maturity, pack, and container same container. This rule is expected to conformance with Executive Order regulations for potatoes grown in the benefit the producers, handlers, and 12866. production area. Section 948.21 further consumers of Colorado potatoes. This rule has been reviewed under authorizes the modification, suspension, DATES: Comments must be received by Executive Order 12988, Civil Justice or termination of requirements issued October 31, 2011. Reform. This rule is not intended to pursuant to § 948.22. ADDRESSES: Interested persons are have retroactive effect. Section 948.40 provides that invited to submit written comments The Act provides that administrative whenever the handling of potatoes is concerning this proposal. Comments proceedings must be exhausted before regulated pursuant to §§ 948.20 through must be sent to the Docket Clerk, parties may file suit in court. Under 948.24, such potatoes must be inspected Marketing Order Administration section 608c(15)(A) of the Act, any by the Federal-State Inspection Service, Branch, Fruit and Vegetable Programs, handler subject to an order may file and certified as meeting the applicable AMS, USDA, 1400 Independence with USDA a petition stating that the requirements of such regulations. Avenue, SW., STOP 0237, Washington, order, any provision of the order, or any Under the order, the State of Colorado DC 20250–0237; Fax: (202) 720–8938; or obligation imposed in connection with is divided into three separate regulatory Internet: http://www.regulations.gov. All the order is not in accordance with law areas for marketing order purposes. Area comments should reference the and request a modification of the order No. 1, commonly known as the Western document number and the date and or to be exempted therefrom. A handler Slope, includes and consists of the

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counties of Routt, Eagle, Pitkin, minimum diameter size or 4 ounces the Small Business Administration (13 Gunnison, Hinsdale, La Plata, and all minimum weight requirements. CFR 121.201) as those having annual counties west thereof; Area No. 2, The Committee has observed that, in receipts of less than $750,000, and small commonly known as the San Luis recent years, consumer demand has agricultural service firms are defined as Valley, includes and consists of the been increasing for smaller size potatoes those having annual receipts of less than counties of Saguache, Huerfano, Las and that those size potatoes often $7,000,000. Animas, Mineral, Archuleta, and all command premium prices. The According to the Committee, 981,609 counties south thereof; and Area No. 3 Committee previously responded to this hundredweight of Colorado Area No. 3 includes and consists of all the trend by modifying the size potatoes were produced for the fresh remaining counties in the State of requirements in the handling market during the 2009–2010 season. Colorado which are not included in regulations to allow for the handling of Based on National Agricultural Area No. 1 or Area No. 2. The order 3⁄4-inch minimum diameter and larger Statistics Service (NASS) data, the currently regulates the handling of size potatoes, if the potatoes otherwise average producer price for Colorado potatoes grown in Areas No. 2 and No. meet the requirements of the U.S. No. 1 summer potatoes for that season was 3 only; regulation for Area No. 1 is grade. However, the current 3⁄4-inch $6.90 per hundredweight. The average currently not active. minimum size requirement has no other annual producer revenue for the eight Grade, size, and maturity regulations parameters associated with it and allows Colorado Area No. 3 potato producers is specific to the handling of Colorado for the commingling of small size therefore calculated to be approximately potatoes grown in Area No. 3 are potatoes (under 17⁄8 inches in diameter) $846,637. Using Committee data contained in § 948.387 of the order’s with larger size potatoes (over 17⁄8 regarding each individual handler’s administrative rules and regulations. inches in diameter). total shipments during the 2009–2010 Section 948.387(a) currently requires The Committee reiterated that quality fiscal period and a Committee estimated that all varieties of potatoes handled assurance is important to the industry average f.o.b. price for 2010 of $9.10 per under the order must be U.S. No. 2 or and to consumers. Providing consistent, hundredweight ($6.90 per better grade and 17⁄8 inches minimum high quality potatoes is necessary to hundredweight producer price plus diameter or 4 ounces minimum weight, maintain consumer confidence. The estimated packing and handling costs of except that potatoes that meet the potential for mixing small size potatoes $2.20 per hundredweight), none of the requirements of the U.S. No. 1 grade with larger size potatoes in the same Colorado Area No. 3 potato handlers may be 3⁄4-inch minimum diameter. container is perceived by the Committee ship over $7,000,000 worth of potatoes. The Committee met on May 12, 2011, as being contrary to the goals of Thus, all of the handlers and many of to discuss revising the size requirements maintaining orderly marketing the producers of Colorado Area No. 3 in the handling regulations. As a result conditions and ensuring that only potatoes may be classified as small of the deliberations, the Committee consistent, high quality potatoes from entities. unanimously recommended modifying the production area enter the market. As This rule would revise the current the size requirements for potatoes that such, the Committee felt that size requirements contained in the meet the U.S. No. 1 grade. Specifically, implementing the proposed revisions to order’s handling regulations. The rule the Committee recommended the size requirements would help to would revise the size requirements to establishing allowable size ranges for maintain the consistency and quality of establish two allowable size ranges, 3⁄4- small size (under 17⁄8 inches in the product while still allowing the inch minimum to 17⁄8 inches maximum diameter) U.S. No. 1 grade and better industry the maneuverability to respond diameter and Size B, if such potatoes potatoes. Two allowable size ranges, 3⁄4- to changing consumer preferences. otherwise meet the requirements of the inch minimum diameter to 17⁄8 inches U.S. No. 1 grade standard. The revisions Initial Regulatory Flexibility Analysis maximum diameter and Size B (11⁄2 would promote orderly marketing by inches minimum diameter to 21⁄4 inches Pursuant to requirements set forth in ensuring that only potatoes of a similar maximum diameter), would be the Regulatory Flexibility Act (RFA) (5 size profile are shipped in the same established for potatoes that otherwise U.S.C. 601–612), the Agricultural container. meet or exceed the minimum Marketing Service (AMS) has The authority for regulating grade and requirements of the U.S. No. 1 grade considered the economic impact of this size is provided in § 948.22 of the order. standard. The proposed allowable size action on small entities. Accordingly, Section 948.387(a) of the order’s ranges would replace the current 3⁄4- AMS has prepared this initial regulatory administrative rules and regulations inch minimum diameter size flexibility analysis. prescribes the applicable size requirement allowance now in effect. The purpose of the RFA is to fit requirements. The proposed revision would not regulatory actions to the scale of This rule is expected to have a prohibit the handling of any of the small business subject to such actions in order beneficial impact on handlers and size potatoes that are currently allowed that small businesses will not be unduly producers by maintaining the superior to be handled under the order. All or disproportionately burdened. reputation of the industry and ensuring potatoes that measure 3⁄4-inch minimum Marketing orders issued pursuant to the that only consistent, high quality diameter and larger and meet the Act, and rules issued thereunder, are potatoes are shipped from the requirements of the U.S. No. 1 grade unique in that they are brought about production area. There should be no could continue to be handled under the through group action of essentially extra cost to producers or handlers as a order. However, in the future, such small entities acting on their own result of the proposed changes because small potatoes would be required to be behalf. current harvesting and handling handled subject to the new size Based on Committee data, there are methods can accommodate the sorting requirements, with like size potatoes eight producers (the majority of whom of these smaller potatoes. The packed into certain size profiles. The are also handlers) in the regulated area Committee believes that this revision handling of all other potatoes currently and eight handlers (the majority of should translate into greater returns for permitted under the order would whom are also producers) subject to handlers and producers over time. continue without change, subject to the regulation under the order. Small Neither NASS nor the Committee U.S. No. 2 or better, 17⁄8 inches agricultural producers are defined by compiles statistics relating to the

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production of potatoes measuring less increased opportunities for citizen Dated: August 19, 2011. than 17⁄8 inches in diameter. The access to Government information and David R. Shipman, Committee has relied on information services, and for other purposes. Acting Administrator, Agricultural Marketing provided by producers and handlers In addition, the Committee’s meeting Service. familiar with the small potato market for was widely publicized throughout the [FR Doc. 2011–22111 Filed 8–29–11; 8:45 am] its recommendation. potato industry, and all interested BILLING CODE 3410–02–P As small potatoes have grown in persons were invited to attend the popularity with consumers, high quality meeting and participate in Committee potatoes from Colorado have been in deliberations. Like all Committee DEPARTMENT OF AGRICULTURE demand. The Committee believes that meetings, the May 12, 2011, meeting modifying the size requirements for Agricultural Marketing Service was a public meeting and all entities, such small potatoes would maintain both large and small, were able to their consistency and increase their 7 CFR Part 1150 express their views on this issue. quality reputation in the market. The Finally, interested persons are invited to [Document No. AMS–DA–11–0007; DA–11– proposed changes are expected to submit comments on this proposed rule, 02] increase sales of Colorado potatoes and including the regulatory and to benefit the Colorado potato industry. informational impacts of this action on National Dairy Promotion and The benefits of this rule are not small businesses. Research Program; Invitation To expected to be disproportionately Submit Comments on Proposed greater or lesser for small entities than A small business guide on complying Amendments to the Order for large entities. with fruit, vegetable, and specialty crop The Committee discussed alternatives marketing agreements and orders may AGENCY: Agricultural Marketing Service, to this recommendation, including be viewed at: http://www.ams.usda.gov/ USDA. taking no action on the matter. One MarketingOrdersSmallBusinessGuide. ACTION: Proposed rule. alternative discussed was to use other Any questions about the compliance size ranges other than the ranges guide should be sent to Laurel May at SUMMARY: This document invites proposed. The Committee believed that the previously mentioned address in the comments on a proposed amendment to the size ranges proposed offered the best FOR FURTHER INFORMATION CONTACT the Dairy Promotion and Research Order compromise between regulatory control section. (Dairy Order). The proposal would and accommodation for the marketing modify the number of National Dairy A 60-day comment period is provided Promotion and Research Board (Dairy needs of the handlers. Another to allow interested persons to respond 3 Board) members in eight regions, merge alternative was to establish just one ⁄4- to this proposal. All written comments 7 Region 8 and Region 10, merge Region inch to 1 ⁄8 inches size range for small timely received will be considered potatoes. However, that alternative was 12 and Region 13, and apportion Idaho before a final determination is made on as a separate region. The total number rejected because it would not have this matter. accommodated the mid-size range of domestic Dairy Board members potatoes that some handlers prefer to List of Subjects in 7 CFR Part 948 would remain the same at 36 and the ship. Thus, the Committee unanimously total number of regions would be agreed that their recommendation Marketing agreements, Potatoes, reduced from 13 to 12. This reflected the best alternative available to Reporting and recordkeeping modification was requested by the Dairy achieve the desired result. requirements. Board, which administers the Dairy In accordance with the Paperwork For the reasons set forth in the Order, to better reflect the geographic Reduction Act of 1995, (44 U.S.C. preamble, 7 CFR part 948 is proposed to distribution of milk production in the Chapter 35), the order’s information be amended as follows: United States. collection requirements have been DATES: Comments must be submitted on previously approved by the Office of PART 948—IRISH POTATOES GROWN or before September 14, 2011. Management and Budget (OMB) and IN COLORADO ADDRESSES: Comments on this proposed assigned OMB No. 0581–0178. No rule should be identified with the changes in those requirements as a 1. The authority citation for 7 CFR docket number AMS–DA–11–0007; DA– result of this action are necessary. part 948 continues to read as follows: 11–02. Commenters should identify the Should any changes become necessary, Authority: 7 U.S.C. 601–674. date and page number of the issue of the they would be submitted to OMB for Proposed Rule. Interested persons may approval. 2. In § 948.387, revise paragraph (a) comment on this proposed rule using This action would not impose any and add paragraphs (a)(1) through (a)(3) either of the following procedures: additional reporting or recordkeeping to read as follows: • Mail: Comments may be submitted requirements on either small or large § 948.387 Handling regulation. by mail to Whitney A. Rick, Chief, potato handlers. As with all Federal Promotion and Research Branch, Dairy marketing order programs, reports and * * * * * Programs, AMS, USDA, 1400 forms are periodically reviewed to (a) Minimum grade and size Independence Ave., SW., Room 2958–S, reduce information requirements and requirements—All varieties. (1) U.S. No. Stop 0233, Washington, DC 20250– duplication by industry and public 2 or better grade, 17⁄8 inches minimum 0233. sector agencies. In addition, USDA has diameter or 4 ounces minimum weight. • Fax: Comments may be faxed to not identified any relevant Federal rules (2) U.S. No.1 grade, Size B (11⁄2 inches (202) 720–0285. that duplicate, overlap or conflict with • E-mail: Comments may be e-mailed minimum to 21⁄4 inches maximum this proposed rule. diameter). to [email protected]. AMS is committed to complying with • Internet: http:// the E–Government Act, to promote the (3) U.S. No.1 grade, 3⁄4-inch minimum www.regulations.gov. use of the Internet and other to 17⁄8 inches maximum diameter. All comments to this proposed rule, information technologies to provide * * * * * submitted by the above procedures will

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be available for viewing at: http:// considered the economic impact of this modified in 2008 based on 2007 milk www.regulations.gov, or at USDA, AMS, action on small entities and has certified production. Dairy Programs, Promotion and that this proposed rule will not have a Based on a review of the 2010 Research Branch, Room 2958–S, 1400 significant economic impact on a geographic distribution of milk Independence Ave., SW., Washington, substantial number of small entities. production, the Dairy Board has DC, from 9 a.m. to 4 p.m., Monday The purpose of the Regulatory concluded that the number of Dairy through Friday, (except on official Flexibility Act is to fit regulatory actions Board members for eight regions should Federal holidays). Persons wanting to to the scale of businesses subject to such be changed. Additionally, the Dairy view comments in Room 2958–S are actions so that small businesses will not Board proposes to merge Region 8 and requested to make an appointment in be disproportionately burdened. Region 10, merge Region 12 and Region advance by calling (202) 720–6909. The Dairy Production Stabilization 13, and apportion Idaho as a separate FOR FURTHER INFORMATION CONTACT: Act of 1983 authorizes a national region. The Dairy Board was last Whitney A. Rick, Chief, Promotion and program for dairy product promotion, modified in 2008 based on 2007 milk Research Branch, Dairy Programs, AMS, research and nutrition education. production. USDA, 1400 Independence Ave., SW., Congress found that it is in the public The proposed amendment should not Room 2958–S, Stop 0233, Washington, interest to authorize the establishment have a significant economic impact on DC 20250–0233. Phone: (202) 720–6909. of an orderly procedure for financing persons subject to the Dairy Order. The E-mail: [email protected]. (through assessments on all milk proposed changes merely would allow SUPPLEMENTARY INFORMATION: This produced in the United States for representation of the Dairy Board to proposed rule is issued pursuant to the commercial use and on imported dairy better reflect geographic milk Dairy Production Stabilization Act products) and carrying out a production in the United States. (Dairy Act) of 1983 [7 U.S.C. 4501– coordinated program of promotion Paperwork Reduction Act 4514], as amended. designed to strengthen the dairy industry’s position in the marketplace In accordance with the Office of Executive Order 12866 and to maintain and expand domestic Management and Budget (OMB) The Office of Management and Budget and foreign markets and uses for fluid regulation [5 CFR part 1320] which has waived the review process required milk and dairy products. implements the Paperwork Reduction by Executive Order 12866 for this The Small Business Administration Act of 1995 [44 U.S.C. chapter 35], the action. [13 CFR 121.201] defines small dairy information collection requirements and producers as those having annual record keeping provisions imposed by Executive Order 12988 receipts of not more than $750,000 the Dairy Order have been previously This proposed rule has been reviewed annually. Most of the producers subject approved by OMB and assigned OMB under Executive Order 12988, Civil to the provisions of the Dairy Order are Control No. 0581–0093. No relevant Justice Reform. This proposed rule is considered small entities. Federal rules have been identified that not intended to have a retroactive effect. The proposed rule would amend the duplicate, overlap, or conflict with this If adopted, nothing in this rule would Dairy Order by modifying the number of rule. National Dairy Promotion and Research preempt or supersede any other program Statement of Consideration relating to dairy product promotion Board (Dairy Board) members in eight organized and operated under the laws regions, merge Region 8 and Region 10, The Dairy Order is administered by a of the United States or any State. merge Region 12 and Region 13, and 38-member Dairy Board, 36 members The Dairy Act provides that apportion Idaho as a separate region. representing 13 geographic regions administrative proceedings must be The total number of domestic Dairy within the United States and 2 exhausted before parties may file suit in Board members would remain the same representing importers. The Dairy Order court. Under section 4509 of the Dairy at 36 and the total number of regions provides in section 1150.131 that the Act, any person subject to the Dairy would be reduced from 13 to 12. This Dairy Board shall review the geographic Order may file with the Secretary a modification was requested by the Dairy distribution of milk production volume petition stating that the Dairy Order, any Board, which administers the Dairy throughout the United States and, if provision of the Dairy Order, or any Order, to better reflect the geographic warranted, shall recommend to the obligation imposed in connection with distribution of milk production in the Secretary a reapportionment of regions the Dairy Order is not in accordance United States. and/or modification of the number of with the law and request a modification The Dairy Order is administered by a producer members from regions in order of the Dairy Order or to be exempted 38-member Dairy Board, 36 members to best reflect the geographic from the Dairy Order. Such person is representing 13 geographic regions distribution of milk production in the afforded the opportunity for a hearing within the United States and 2 United States. The Dairy Board is on the petition. After a hearing, the representing importers. The Dairy Order required to conduct the review at least Secretary would rule on the petition. provides in section 1150.131 that the every 5 years and not more than every The Dairy Act provides that the district Dairy Board shall review the geographic 3 years. The Dairy Board was last court of the United States in any district distribution of milk production modified in 2008 based on 2007 milk in which the person is an inhabitant or throughout the United States and, if production. has his principal place of business, has warranted, shall recommend to the Since the Dairy Board’s last jurisdiction to review the Secretary’s Secretary a reapportionment of the reapportionment, the Dairy Order was ruling on the petition, provided a regions and/or modification of the amended by a final rule [76 FR 14777, complaint is filed not later than 20 days number of members from the regions in March 18, 2011] to implement an after the date of the entry of the ruling. order to better reflect the geographic assessment on imported dairy products distribution of milk production volume to fund promotion and research and to Regulatory Flexibility Act in the United States. The Dairy Board is add importer representation, initially In accordance with the Regulatory required to conduct the review at least two members, to the Dairy Board. Flexibility Act (5 U.S.C. 601–612), the every 5 years and not more than every Additionally, the final rule amended the Agricultural Marketing Service has 3 years. The Dairy Board was last term ‘‘United States’’ in the Dairy Order

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to mean all States, the District of effective March 18, 2011, and are of the United States market served by Columbia, and the Commonwealth of reflected in this proposed rule. domestic production and imported Puerto Rico. Assessments on producers The final rule also modified the dairy products. This review will take in these areas were effective April 1, language in section 1150.131 of the place at least once every 3 years, after 2011. These amendments to the Dairy Dairy Order to remove the specific the initial appointment of importer Order were implemented pursuant to formula for calculating the factor of representatives on the Dairy Board. the Farm Security and Rural Investment pounds of milk per member, which The last reapportionment, conducted Act of 2008 (2008 Farm Bill) (Pub. L. divided total pounds of milk produced in 2008, was calculated by using 2007 110–246). by 36, as the Dairy Board is now milk production data and dividing by 36 comprised of 38 members (36 domestic to determine a factor of pounds of milk In order to complement the current producers and 2 importer represented by each domestic Dairy geographical makeup of the existing representatives). While the Dairy Order Board member. The resulting factor was regions of the Dairy Board, the final rule no longer specifies the procedure for then divided into the pounds of milk added these four new jurisdictions to calculating the factor of pounds of milk produced in each region to determine the region of closest proximity. Alaska per member, for the purposes of the the number of Dairy Board members for was added to Region 1, currently current reapportionment analysis, the each region. Accordingly, the same comprised of Oregon and Washington; procedure will remain the same. process using 2010 milk production Hawaii was added to Region 2, currently The final rule also added new data was employed for the current California; and the District of Columbia language that requires the Secretary to reapportionment calculations. Table 1 and the Commonwealth of Puerto Rico review the average volume of imports of summarizes by region the volume of were added to Region 10, currently dairy products into the United States milk production distribution for 2010, comprised of Florida, Georgia, North and, if warranted, reapportion the the percentage of total milk production Carolina, South Carolina and Virginia. importer representation on the Dairy and the current number of Dairy Board These regional modifications were Board to reflect the proportional shares seats per region.

TABLE 1—CURRENT REGIONS AND NUMBER OF BOARD SEATS

Milk Percentage of Current Current regions and states production total milk number of (mil. lbs.) production board seats

1. Alaska, Oregon, Washington ...... 8,307.1 4.3 1 2. California, Hawaii ...... 40,410 .3 21 .0 8 3. Arizona, Colorado, Idaho, Montana, Nevada, Utah, Wyoming ...... 22,592.4 11.6 4 4. Arkansas, Kansas, New Mexico, Oklahoma, Texas ...... 20,321 10 .4 4 5. Minnesota, North Dakota, South Dakota ...... 11,370 5.8 2 6. Wisconsin ...... 26,035 13.5 5 7. Illinois, Iowa, Missouri, Nebraska ...... 8,867 4.6 2 8. Alabama, Kentucky, Louisiana, Mississippi, Tennessee ...... 2,624 1 .4 1 9. Indiana, Michigan, Ohio, West Virginia ...... 17,188 8.9 3 10. District of Columbia, Florida, Georgia, North Carolina, Puerto Rico, South Carolina, Virginia ...... 7,039 3.6 1 11. Delaware, Maryland, New Jersey, Pennsylvania ...... 11,965 6 .2 2 12. New York ...... 12,713 6.6 2 13. Connecticut, Maine, Massachusetts, New Hampshire, Rhode Island, Vermont ...... 4,036 .5 2 .1 1

Total ...... 193,468 .3 100 36 * Milk Production, Disposition, and Income, 2010 Summary, NASS, 2011. ** Puerto Rico—Various Agricultural Statistics, 2010 Summary, NASS, 2011.

In 2010, total milk production was compared to one Dairy Board member Due to the increase in Idaho production, 193,468 million pounds and each of the based on 2007 milk production data. the Dairy Board proposes apportioning Dairy Board members would represent Milk production in Region 2 Idaho as its own region with two Dairy 5,374 million pounds of milk. For 2007, (California and Hawaii) decreased from Board members. total milk production was 185,558 40,683 million pounds in 2007 to 40,410 Milk production in Region 8 million pounds of milk and each of the million pounds in 2010. The Dairy (Alabama, Kentucky, Louisiana, Dairy Board members represented 5,154 Board proposes that seven Dairy Board Mississippi, and Tennessee) decreased million pounds of milk. members (40,410 divided by 5,374 = from 3,119 million pounds in 2007 to 7.519) represent Region 2, compared to 2,624 million pounds in 2010. The Based on the 2010 milk production eight Dairy Board members based on Dairy Board concluded that Region 8 no data, the Dairy Board proposes that 2007 milk production data. longer supports one Dairy Board member representation in Region 1 Milk production in Region 3 (Arizona, member (2,624 divided by 5,374 = (Alaska, Oregon, and Washington) be Colorado, Idaho, Montana, Nevada, 0.488) and proposes to merge Region 8 increased by one member. Milk Utah, and Wyoming) increased from into Region 10 (District of Columbia, production in Region 1 increased to 21,212 million pounds in 2007 to 22,592 Florida, Georgia, North Carolina, Puerto 8,307 million pounds in 2010, up from million pounds in 2010. Specifically, in Rico, South Carolina, and Virginia) to 7,764 million pounds in 2007, Idaho, milk production increased from create a new region with two Dairy indicating two Dairy Board members 10,905 million pounds in 2007 to 12,779 Board members. (8,307 divided by 5,374 = 1.545) pounds in 2010 and represents more Similarly, milk production in Region than half of the production of Region 3. 13 (Connecticut, Maine, Massachusetts,

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New Hampshire, Rhode Island, and 5,374 = 0.751) and proposes to merge for 2010, the percentage of total milk Vermont) decreased from 4,046 million Region 13 into Region 12 (New York), production and the proposed regions pounds in 2007 to 4,036 million pounds creating a new region with three Dairy and States and proposed Dairy Board in 2010. The Dairy Board concluded Board members. members. that Region 13 no longer supports one Table 2 summarizes by region, the Dairy Board member (4,036 divided by volume of milk production distribution

TABLE 2—PROPOSED REGIONS AND NUMBER OF BOARD SEATS

Milk Percentage of Proposed Proposed regions and states production total milk number of (mil. lbs.) production board seats

1. Alaska, Oregon, Washington ...... 8,307.1 4.3 2 2. California, Hawaii ...... 40,410 .3 21 .0 7 3. Arizona, Colorado, Montana, Nevada, Utah, Wyoming ...... 9,813.4 5.0 2 4. Arkansas, Kansas, New Mexico, Oklahoma, Texas ...... 20,321 10 .4 4 5. Minnesota, North Dakota, South Dakota ...... 11,370 5.8 2 6. Wisconsin ...... 26,035 13.5 5 7. Illinois, Iowa, Missouri, Nebraska ...... 8,867 4.6 2 8. Idaho ...... 12,779 6 .6 2 9. Indiana, Michigan, Ohio, West Virginia ...... 17,188 8.9 3 10. Alabama, District of Columbia, Florida, Georgia, Kentucky, Louisiana, Mississippi, North Carolina, Puerto Rico, South Carolina, Tennessee, Virginia ...... 9,663 5.0 2 11. Delaware, Maryland, New Jersey, Pennsylvania ...... 11,965 6 .2 2 12. Connecticut, Maine, Massachusetts, New Hampshire, New York, Rhode Island, Vermont ...... 16,749 .5 8 .7 3

Total ...... 193,468 .3 100 36 * Milk Production, Disposition, and Income, 2010 Summary, NASS, 2011. ** Puerto Rico—Various Agricultural Statistics, 2010 Summary, NASS, 2011.

A 15-day comment period is provided divided into twelve geographic regions NUCLEAR REGULATORY for interested persons to comment on and the number of Board members from COMMISSION this proposed rule. Twelve terms of each region shall be as follows: existing Dairy Board members will (1) Two members from region number 10 CFR Chapter I expire on October 31, 2011. Thus a one comprised of the following States: [NRC–2009–0279] 15-day comment period is provided to Alaska, Oregon and Washington. provide for a timely appointment of new (2) Seven members from region New International Commission on Dairy Board members based on the number two comprised of the following Radiological Protection; current geographic distribution of milk States: California and Hawaii. Recommendations on the Annual Dose production in the United States. (3) Two members from region number Limit to the Lens of the Eye three comprised of the following States: List of Subjects in 7 CFR Part 1150 AGENCY: Arizona, Colorado, Montana, Nevada, Nuclear Regulatory Dairy products, Milk, Promotion, Utah and Wyoming. Commission. Research. ACTION: * * * * * Request for public comment. For the reasons set forth in the (8) Two members from region number SUMMARY: The U.S. Nuclear Regulatory preamble, it is proposed that 7 CFR part eight comprised of the following State: 1150 be amended as follows: Commission (NRC or the Commission) Idaho. is continuing its stakeholder outreach of PART 1150—DAIRY PROMOTION * * * * * possible changes to the radiation PROGRAM (10) Two members from region protection standards by seeking public number 10 comprised of the following comment on the newly released 1. The authority citation for 7 CFR States: Alabama, District of Columbia, International Commission on part 1150 continues to read as follows: Florida, Georgia, Kentucky, Louisiana, Radiological Protection (ICRP) Authority: 7 U.S.C. 4501–4514 and 7 Mississippi, North Carolina, recommendations for the limitation of U.S.C. 7401. Commonwealth of Puerto Rico, South annual dose to the lens of the eye. This 2. In § 1150.131, paragraph (b) is Carolina, Tennessee and Virginia. significant new recommendation has amended by revising paragraphs (b) * * * * * not yet been the subject of any introductory text, (b)(1), (b)(2), (b)(3), (12) Three members from region stakeholder or public interactions on (b)(8), (b)(10), (b)(12), and removing number 12 comprised of the following any potential changes to the NRC’s paragraph (b)(13) to read as follows: States: Connecticut, Maine, radiation protection regulations. The Massachusetts, New Hampshire, New NRC has not initiated rulemaking on § 1150.131 Establishment and York, Rhode Island and Vermont. this subject, and is seeking early input membership. and views on the benefits and impacts (a) * * * Dated: August 22, 2011. of options to be considered before (b) Thirty-six members of the Board David Shipman, making any decision on whether to shall be United States producers. For Acting Administrator. consider this issue for future purposes of nominating producers to the [FR Doc. 2011–22154 Filed 8–29–11; 8:45 am] rulemaking. Stakeholders and the public Board, the United States shall be BILLING CODE 3410–02–P; 3410–20–P are encouraged to submit comments

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concerning potential impacts, burdens, you do not want to be publicly 50, ‘‘Domestic Licensing of Production benefits, and concerns on the issues disclosed. The NRC requests that any and Utilization Facilities,’’ contains discussed in this notice. party soliciting or aggregating comments additional requirements for power DATES: Submit comments by October 31, received from other persons for reactors. Other portions of the NRC’s 2011. Comments received after this date submission to the NRC inform those regulations also may contain radiation will be considered if it is practical to do persons that the NRC will not edit their protection criteria, and cross references so, but the NRC is able to assure comments to remove any identifying or to 10 CFR part 20. consideration only for comments contact information, and therefore, they The ICRP Publication 103 (December received on or before this date. should not include any information in 2007) contains the latest in a series of revised ICRP recommendations for ADDRESSES: Please include Docket ID their comments that they do not want radiation protection. On December 18, NRC–2009–0279 in the subject line of publicly disclosed. You can access publicly available 2008, the NRC staff provided a Policy your comments. For instructions on documents related to this notice using Issue Notation Vote Paper (SECY–08– submitting comments and accessing the following methods: 0197; ADAMS Accession No. documents related to this action, see • NRC’s Public Document Room ML083360582) to the Commission, Section I, ‘‘Submitting Comments and (PDR): The public may examine and which presented the regulatory options Accessing Information’’ in the have copied, for a fee, publicly available of moving, or not moving, towards a SUPPLEMENTARY INFORMATION section of documents at the NRC’s PDR, O1–F21, greater degree of alignment of the NRC this document. Members of the public One White Flint North, 11555 Rockville regulatory framework with ICRP are invited and encouraged to submit Pike, Rockville, Maryland 20852. Publication 103. In a Staff Requirements comments by any of the following • NRC’s Agencywide Documents Memorandum (SRM) dated April 2, methods: Access and Management System 2009 (ADAMS Accession No. • Federal rulemaking Web site: Go to (ADAMS): Publicly available documents ML090920103), the Commission http://www.regulations.gov and search created or received at the NRC are approved the staff’s recommendation to for documents filed under Docket ID available online in the NRC Library at begin engaging with stakeholders and NRC–2009–0279. Address questions http://www.nrc.gov/reading-rm/ interested parties to initiate about NRC dockets to Carol Gallagher; adams.html. From this page, the public development of the technical basis for telephone: 301–492–3668; e-mail: can gain entry into ADAMS, which possible revision of the NRC’s radiation [email protected]. provides text and image files of the • protection regulations, as appropriate Mail comments to: Secretary, U.S. NRC’s public documents. If you do not and where scientifically justified, to Nuclear Regulatory Commission, have access to ADAMS or if there are achieve greater alignment with the Washington, DC 20555–0001, ATTN: problems in accessing the documents recommendations in ICRP Publication Rulemakings and Adjudications Staff. • located in ADAMS, contact the NRC’s 103. E-mail comments to: PDR reference staff at 1–800–397–4209, This notice of solicitation of comment [email protected]. If you 301–415–4737, or by e-mail to represents the third in a series of such do not receive a reply e-mail confirming [email protected]. requests. Previous notices were that we have received your comments, • Federal rulemaking Web site: Public published in the Federal Register on contact us directly at 301–415–1677. comments and supporting materials • July 7, 2009 (74 FR 32198), and Hand deliver comments to: 11555 related to this proposed rule can be September 27, 2010 (75 FR 59160). In Rockville Pike, Rockville, Maryland found at http://www.regulations.gov by addition, the NRC staff held a series of 20852, between 7:30 a.m. and 4:15 p.m. searching on Docket ID NRC–2009– facilitated public workshops in October on Federal workdays. Telephone: 301– 0279. and November 2010, to engage the 415–1677. • II. Background views of a wide range of stakeholders on Fax comments to: Secretary, U.S. the key issues presented by the ICRP Nuclear Regulatory Commission at 301– Regulations issued by the NRC are recommendations. 415–1101. found in Chapter I of Title 10, ‘‘Energy,’’ On April 21, 2011, the ICRP issued a FOR FURTHER INFORMATION CONTACT: of the Code of Federal Regulations (10 statement on tissue reactions (see Solomon Sahle, telephone: 301–415– CFR). Chapter I is divided into Parts 1 http://www.icrp.org/docs/ 3781, e-mail: [email protected], through 199, and contains requirements ICRP%20Statement%20on%20Tissue or Dr. Donald Cool, telephone: 301– that are binding for all individuals and %20Reactions.pdf) stating that it has 415–6347, e-mail: [email protected], entities that possess, use, or store reviewed recent epidemiological of the Office of Federal and State nuclear materials or operate nuclear evidence suggesting that there are some Materials and Environmental facilities under the NRC’s jurisdiction. tissue reaction effects, particularly those Management Programs, U.S. Nuclear Of these, the regulations that are most with very late manifestation, where Regulatory Commission, Washington, relevant to the subject of this notice are threshold doses are or might be lower DC 20555–0001. contained in 10 CFR part 20, ‘‘Standards than previously considered. For the lens SUPPLEMENTARY INFORMATION: for Protection against Radiation.’’ of the eye, the threshold in absorbed Through the existing compatibility dose for radiation-induced cataract I. Submitting Comments and Accessing criteria, the NRC Agreement States have formation is now considered by the Information certain requirements that are essentially ICRP to be 0.50 Gy (50 rem). Comments submitted in writing or in identical to those contained in 10 CFR Consequently, for occupational electronic form will be posted on the part 20 for their licensees. Additional exposure in planned exposure NRC Web site and on the Federal requirements, specific to particular uses situations, the ICRP is now rulemaking Web site http:// or classes of facilities, are found in other recommending a limit on equivalent www.regulations.gov. Because your portions of the NRC’s regulations. For dose for the lens of the eye of 20 mSv comments will not be edited to remove example, 10 CFR part 35, ‘‘Medical Use (2 rem) per year, averaged over defined any identifying or contact information, of Byproduct Material,’’ contains periods of 5 years, with no single year the NRC cautions you against including requirements related to the medical use exceeding 50 mSv (5 rem). The ICRP’s any information in your submission that of radioactive material, and 10 CFR part recommended limits for dose for the

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lens of the eye are numerically equal to III. Request for Written and Electronic periods of 5 years, with no single year its current recommendation for the limit Comments exceeding 50 mSv (5 rem). on effective dose, which is 20 mSv (2 The NRC is soliciting comments on Issues and Options rem) per year, averaged over 5 years, the items presented in the issues paper with no single year exceeding 50 mSv To understand the magnitude of the in Section IV of this notice. Comments (5 rem). doses incurred by the lens of the eye in may be submitted either in writing or the various industries regulated by the The supporting information reviewed electronically as indicated in the by the ICRP was provided for public NRC, the NRC staff initially queried the ADDRESSES section of this document. consultation in December 2010 (http:// Radiation Exposure Information and www.icrp.org/docs/Tissue%20Reactions In addition to inviting public Reporting System (REIRS) database for %20Report%20Draft comments on the issues presented in occupational dose records over the past %20for%20Consultation.pdf). This draft Section IV, the NRC is soliciting specific 16 years (1994–2010). Under 10 CFR report will be revised in light of the comments related to: (1) Quantitative 20.2206, seven NRC-licensed industry comments received by the ICRP during and qualitative information on the costs groups must report occupational the public consultation period, and is and benefits resulting from radiation exposure data. These licensed expected to become a final ICRP report consideration of the factors described in industries are commercial nuclear towards the end of 2011. the issues paper; (2) operational data on power reactors; industrial radiation exposures and administrative The international radiation protection radiographers; fuel processors control methods that might result in (including uranium enrichment community is currently examining the increased or reduced exposures when facilities), fabricators, and reprocessors; issue of revising the dose limits for the implementing the associated change in manufacturers and distributors of lens of the eye. In particular, the a dose limit; (3) whether the presented byproduct material; independent spent International Atomic Energy Agency has factors are appropriate; and (4) whether fuel storage installations; facilities for specifically considered and is now other factors should be identified and land disposal of low-level waste; and incorporating, the new limits into the considered, including providing geological repositories for high-level revision of the International Basic Safety quantitative and qualitative information waste. Currently, there are no NRC- Standards for Protection against for these factors. The Commission licensed facilities for land disposal of Ionizing Radiation and for the Safety of believes that the stakeholders’ low-level waste or geological Radiation Sources. comments will help to quantify the repositories for high-level waste. Protection of the eye against the potential impact of these changes and Therefore, these licensee categories do effects of ionizing radiation is designed will assist the NRC, as it continues to not submit occupational radiation primarily to prevent the formation of consider alternatives for the radiation exposure reports to the REIRS database. cataracts. The sensitive part of the eye protection framework. Other categories of NRC licensees (e.g., for this health effect is the lens, and The NRC does not plan to provide medical licensees) are not currently radiation dose to the eye is defined as specific responses to the comments required to submit reports of the lens dose equivalent (LDE) at a received during this solicitation. Based occupational exposure. While tissue depth of 0.3 cm (10 CFR 20.1003). on the comments received, the NRC staff Agreement State licensees are not Cataract formation falls under the class will prepare policy issues for required to provide reports to the NRC, of radiation effects referred to as Commission consideration on whether some licensees within the industrial deterministic (or tissue reactions in to proceed with the development of a radiography and nuclear pharmacy current ICRP terminology). At doses proposed rule or take other regulatory categories have voluntarily submitted above the threshold, the severity of action. If the Commission decides to occupational radiation exposure reports cataract formation increases with dose, proceed further with a proposed to the REIRS database. but the radiation-induced incidence rulemaking, any proposed rule will be Annually, the NRC receives below the threshold dose is believed to published in the Federal Register for approximately 200,000 occupational be essentially zero. Currently, 10 CFR public review and comment. radiation exposure reports to the REIRS part 20 limits annual occupational database (NUREG–0713, ‘‘Occupational exposures to the lens of the eye to 150 IV. Issues Paper on the Dose Limit to Radiation Exposure at Commercial mSv (15 rem) per year (10 CFR 20.1201). the Lens of the Eye Nuclear Power Reactors and Other The NRC is supplementing its Introduction Facilities’’ (ADAMS Accession No. standard rulemaking process by ML110820543). The reports are conducting enhanced public On April 21, 2011, the ICRP issued a generally submitted electronically as an participatory activities before the statement on tissue reactions, indicating NRC Form 5 record of occupational initiation of any formal rulemaking that it has now reviewed recent exposure for a monitoring period. The process, to solicit early and active epidemiological evidence suggesting form includes fields to report deep dose public input on major issues associated that there are some tissue reaction equivalent (DDE), lens dose equivalent with radiation protection regulations. effects, particularly those with very late (LDE), committed effective dose As a first step, the NRC has prepared an manifestation, where threshold doses equivalent (CEDE), total effective dose issues paper that describes issues and are or might be lower than previously equivalent (TEDE), and shallow dose alternatives related to limits for the lens considered. For the lens of the eye, the equivalent (SDE). For the purpose of of the eye. The intent of this paper is to threshold in absorbed dose for this overview, the staff assumes that the foster discussion about these issues and radiation-induced cataract formation is reported DDE and LDE are taken from alternatives before a rulemaking to set now considered to be 0.5 Gy (50 rem). the same measurement, and that there is standards would begin. The content of Consequently, for occupational relatively infrequent direct the issues paper is contained in Section exposure in planned exposure measurement of LDE within the 200,000 IV of this document. The NRC will also situations, the ICRP is now records submitted annually. utilize its rulemaking Web site to make recommending a limit on equivalent In terms of the new ICRP the issues paper available to the public dose for the lens of the eye of 20 mSv recommendations for the lens of the eye, and to solicit public comments. (2 rem) per year, averaged over defined the staff focused on REIRS data for the

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past 5 years (2006–2010) and found that eye may be particularly important in options relating to possible changes to current practices have resulted in some of these fields, and others, such as the NRC regulatory requirements to upwards of 1,000 cases where a 20 mSv medical interventional radiology and reflect the ICRP’s recommendations for (2 rem) per year eye dose level was cardiology, which are subject to lowering the dose limit for the lens of exceeded. None of these situations regulation by the States, but are not the eye. The NRC is soliciting specific exceeded the current annual limit for necessarily under NRC jurisdiction. comments related to: (1) Quantitative the lens of the eye of 150 mSv (15 rem). In situations where there may be a and qualitative information on the costs The initial examination of REIRS data non-uniform radiation field, or where and benefits resulting from did not determine whether the same shielding reduces the exposure to consideration of the factors described in individual exceeded a 2 rem per year significant portions of the body, the this issues paper, (2) operational data on average over the 5-year period. The dose to the lens of the eye might be radiation exposures and administrative REIRS database did not contain a record greater than the TEDE. In such control methods that might result in where the deep dose equivalent circumstances, specific additional increased or reduced exposures in exceeded a value of 50 mSv (5 rem) in protection measures might be necessary implementing the associated changes in a single year. to reduce exposure to the lens of the a dose limit; (3) whether the presented It can be concluded, based on this eye. The NRC staff understands that the factors are appropriate; and (4) whether preliminary analysis, that current use of leaded safety glasses has proven other factors should be identified and radiation protection practices would effective in significantly reducing dose considered, including providing result in a considerable number of to the lens of the eye from soft x-rays, quantitative and qualitative information instances where dose to the lens of the and use of such glasses with side for these factors. The following eye exceeds 20 mSv (2 rem) per year. It shields is effective in situations where questions identify areas in which the should be noted that the reported TEDE there is significant scatter of low energy NRC staff is seeking specific views and and LDE values, above 20 mSv (2 rem) radiation, such as in interventional inputs. However, stakeholders are per year, are not necessarily associated radiology and cardiology, where invited to identify and address other with the same individuals each year. To shielding is already provided for the areas and implications not specifically obtain data on accumulated DDE for torso to reduce the effective dose. The mentioned here or in the issues paper. individuals, the NRC staff initially use of leaded safety glasses might not be 1. To what extent has dose to the lens analyzed data for the past 16 years and effective for use by industrial of the eye been an issue in the found that no individual in any of the radiographers, where the greater implementation of your radiation NRC-licensed industries reporting to energies of the radiation make it protection program, and would a change REIRS, including individuals in those difficult or impractical to provide in the limits cause operational and categories as reported by Agreement significant shielding to the lens of the administrative impacts? What other State licensees, has exceeded a eye. types of impacts would you foresee? cumulative exposure of 0.5 Sv (50 rem) In considering possible changes, the 2. What types of specific during this period (1994–2010). NRC staff must consider the administrative and monitoring methods The information available to the NRC implications of the dose limits for the would be available in your use of staff indicates that the majority of NRC- lens of the eye in connection with all of radiation or radioactive materials to regulated workers are usually exposed the other issues that have been reduce exposures to the lens of the eye, to fairly uniform radiation fields. In this previously discussed with stakeholders, and what would be the costs and exposure environment, and without the including the implications of a change operational impacts of implementing use of shielding for portions of the body, to the dose limit for TEDE, and the such methods? the equivalent dose to the lens of the implications of strengthening or 3. What might be the anticipated eye is typically similar to the TEDE. modifying the requirements for impacts of a rule change on Therefore, measures to minimize optimization analysis using planning recordkeeping and reporting? radiation exposure, in general, will also values to ensure that exposures are As 4. Are there technological result in a reduction in dose to the lens Low As Is Reasonably Achievable. implementation issues, such as limits of of the eye. Likewise, in many instances, As in all regulatory proceedings, the detection as compared to currently used an annual whole body dose that exceeds NRC could pursue several possible radiation monitoring methods, or an annual level of 20 mSv (2 rem) options. The NRC staff has identified availability of dosimetry, that would would likely mean that the lens dose the following three options for initial make adoption of the ICRP would also exceed 20 mSv (2 rem). consideration and assessment in recommendations difficult or There are other types of licensed uses considering a revision to associated impractical in certain circumstances? If for which reporting of dose is not regulations and regulatory guidance. possible, please provide a typical currently a requirement. For example, 1. No change: Continue with the example of such a circumstance. the NRC staff has been made aware of existing regulatory requirement to limit 5. How does the recommended limit possible eye dose issues associated with dose to the lens of the eye to 150 mSv to the lens of the eye influence your licensees using depleted uranium in the (15 rem) per year. views on possible changes to the limits fabrication of shielding, counterweights, 2. Change the current requirements by on TEDE, given that these two quantities etc. Further, some types of exposure, adopting the ICRP- recommended dose are expected to be essentially the same such as to machine-produced radiations values. for many exposure situations? (e.g., x-rays), are not the subject of NRC 3. Change the current requirements to 6. What alternatives to adoption of the jurisdiction, and thus exposures in these adopt a single, reduced dose limit for new limits would you suggest in categories are not reported to the NRC. the lens of the eye. For example, a single achieving the desired outcome of However, the occupational dose to limit of 50 mSv (5 rem) or 20 mSv limiting exposure of the lens of the eye individuals exposed to both NRC- (2 rem). over the working lifetime of an licensed radioactive materials, as well employee? as non-NRC-licensed sources (e.g., x- Questions 7. What should be the relationship rays), is regulated to the 10 CFR part 20 The NRC staff is seeking stakeholder between the U.S. regulatory dose limits. Exposures to the lens of the input on the issues, implications, and requirements and those adopted

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internationally? What impacts, either Radiological Health, Food and Drug DATES: Comment Due Date: October 31, positive or negative, would result from Administration, 10903 New Hampshire 2011. an alignment of NRC regulatory Ave., Bldg. 66, Rm. 4622, Silver Spring, ADDRESSES: Interested persons are requirements and guidance with MD 20993–0002, 301–796–6216. invited to submit comments regarding international standards? SUPPLEMENTARY INFORMATION: In FR Doc. this proposed rule to the Regulations 8. Should licensees be required to 2011–19959, appearing on page 48058, Division, Office of General Counsel, monitor and report LDE for foreign in the Federal Register of Monday, Department of Housing and Urban workers and report the values upon August 8, 2011, the following correction Development, 451 7th Street, SW., request? Are there other impacts (e.g., is made: Room 10276, Washington, DC 20410– operational, administrative, costs, etc.) 1. On page 48062, in the first column, 0500. Communications must refer to the that should be anticipated if the U.S. under ‘‘XIII. References,’’ the first above docket number and title. There regulatory structure were to be different reference is corrected to read ‘‘1. Geiger, are two methods for submitting public from that being used in other countries? D.R., ‘‘FY 2003 and 2004 Unit Costs for comments. 9. Are there any other NRC the Process of Medical Device Review,’’ 1. Submission of Comments by Mail. regulations and regulatory guidance that September 2005, http://www.fda.gov/ Comments may be submitted by mail to might need to be reviewed and revised downloads/MedicalDevices/Device the Regulations Division, Office of as a result of ICRP recommendations in RegulationandGuidance/Overview/ General Counsel, Department of reducing the allowable dose to the lens MedicalDeviceUserFeeand Housing and Urban Development, 451 of the eye? ModernizationActMDUFMA/ucm 7th Street, SW., Room 10276, 10. How are licensees monitoring to 109216.’’ Washington, DC 20410–0001. demonstrate compliance with the Dated: August 24, 2011. 2. Electronic Submission of existing dose limits for the lens of the Comments. Interested persons may eye? Nancy K. Stade, Deputy Director for Policy, Center for Devices submit comments electronically through Dated at Rockville, Maryland, this 19th day and Radiological Health. the Federal eRulemaking Portal at of August 2011. [FR Doc. 2011–22107 Filed 8–29–11; 8:45 am] http://www.regulations.gov. HUD For the Nuclear Regulatory Commission. strongly encourages commenters to BILLING CODE 4160–01–P Josephine M. Piccone, submit comments electronically. Director, Division of Intergovernmental Electronic submission of comments Liaison and Rulemaking, Office of Federal allows the commenter maximum time to and State Materials and Environmental DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT prepare and submit a comment, ensures Management Programs. timely receipt by HUD, and enables [FR Doc. 2011–21900 Filed 8–29–11; 8:45 am] 24 CFR Part 203 HUD to make them immediately BILLING CODE 7590–01–P available to the public. Comments [Docket No. FR–5461–P–01] submitted electronically through the RIN 2502–AJ01 http://www.regulations.gov Web site can DEPARTMENT OF HEALTH AND be viewed by other commenters and HUMAN SERVICES Federal Housing Administration (FHA): interested members of the public. Suspension of Section 238(c) Single- Commenters should follow the Food and Drug Administration Family Mortgage Insurance in Military instructions provided on that site to Impacted Areas submit comments electronically. 21 CFR Part 870 AGENCY: Office of the Assistant Note: To receive consideration as public [Docket No. FDA–2011–N–0505] Secretary of Housing—Federal Housing comments, comments must be submitted Commissioner, HUD. through one of the two methods specified Effective Date of Requirement for above. Again, all submissions must refer to Premarket Approval for Cardiovascular ACTION: Proposed rule. the docket number and title of the rule. No Permanent Pacemaker Electrode; SUMMARY: This proposed rule would Facsimile Comments. Facsimile (FAX) comments are not acceptable. Correction suspend FHA’s mortgage insurance AGENCY: Food and Drug Administration, program for military impacted areas Public Inspection of Public HHS. under section 238(c) of the National Comments. All properly submitted ACTION: Proposed rule; correction. Housing Act (Act). This single-family comments and communications mortgage insurance program, submitted to HUD will be available for SUMMARY: The Food and Drug established by regulation in 1977, has public inspection and copying between Administration (FDA) is correcting a been significantly underutilized for the 8 a.m. and 5 p.m. weekdays at the above proposed rule that appeared in the past several years. Additionally, these address. Due to security measures at the Federal Register of August 8, 2011 mortgage loans are insured under HUD Headquarters building, an advance (76 FR 48058). The document proposed comparable terms and conditions as appointment to review the public to require the filing of a premarket loans insured under HUD’s primary comments must be scheduled by calling approval application or a notice of single-family mortgage insurance the Regulations Division at 202–708– completion of a product development program under section 203(b) of the 3055 (this is not a toll-free number). protocol for the class III preamendments National Housing Act. Accordingly, Individuals with speech or hearing device: Cardiovascular permanent those borrowers who would be served impairments may access this number pacemaker electrode. The document under section 238(c) of the Act are via TTY by calling the toll-free Federal was published with an incorrect served equally well under the section Relay Service at 800–877–8339. Copies Internet address for the first reference in 203(b) mortgage insurance program. The of all comments submitted are available the References section. This document suspension of this mortgage insurance for inspection and downloading at corrects that error. program is consistent with the http://www.regulations.gov. FOR FURTHER INFORMATION CONTACT: President’s budget request for Fiscal FOR FURTHER INFORMATION CONTACT: Elias Mallis, Center for Devices and Year 2012. Karin Hill, Director, Office of Single

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Family Program Development, Office of military impacted areas, the program borrowers would be able to inquire Housing, Department of Housing and has been minimally utilized by eligible about the availability of insurance under Urban Development, 451 7th Street, borrowers. Section 238(c) mortgage this program from their lenders. HUD SW., Room 9278, Washington, DC insurance has been available in only six notes that the removal of the regulations 20410–8000; telephone number 202– counties throughout the country, three at § 203.43e would have no impact on 708–2121 (this is not a toll-free in Georgia and three in New York. From loans already endorsed for FHA number). Persons with hearing or January 1, 2005, to June 30, 2010, FHA insurance under the section 238(c) speech impairments may access this insured 4,542 single-family home loans program. number via TTY by calling the Federal in these six counties, and only 2,309 The proposed suspension of this Relay Service at 1–800–877–8339. were endorsed under section 238(c) of underutilized mortgage insurance SUPPLEMENTARY INFORMATION: the Act. The 2,309 loans endorsed since program, and the proposed removal of 2005 represent only .05 percent of all I. Background the regulations at 24 CFR 203.43e, is not FHA-insured loans endorsed during that only consistent with the President’s Section 238(c) of the National span. budget requests for FY 2011 and 2012, The President’s budget request for Housing Act (12 U.S.C. 1715z–3(c)) but with the President’s Executive Order (Act) was added by the Housing and Fiscal Year (FY) 2011 acknowledged the (EO) 13563, entitled ‘‘Improving Community Development Act of 1977 underutilization of the section 238(c) Regulation and Regulatory Review,’’ (Pub. L. 95–128) to authorize HUD to program and advised that HUD would signed by the President on January 18, insure mortgages executed in take action to halt the availability of the 2011, and published on January 21, connection with the construction, program in light of the significant 2011, at 76 FR 3821. This EO requires repair, rehabilitation, or purchase of underutilization. The FY 2011 budget executive agencies to analyze property located near any installation of request found at http:// regulations that are ‘‘outmoded, the Armed Forces of the United States www.gpoaccess.gov/usbudget/fy11/ ineffective, insufficient, or excessively in federally impacted areas in which index.html states the following: burdensome, and to modify, streamline, conditions are such that one or more of The Budget assumes that HUD will the applicable insuring requirements expand, or repeal them in accordance administratively suspend the Section 238(c) with what has been learned.’’ For the under another single-family mortgage program in 2011. The Section 238(c) program insurance program cannot be met. In provides single family mortgage insurance reasons discussed in the Background addition, insurance may only be similar to MMI for a small number of families section of this preamble, HUD has provided under section 238(c) if: in areas affected by military installations. determined that the underutilization of (1) HUD finds that the benefits to be The elimination of Section 238(c) will not the section 238(c) mortgage insurance negatively impact the availability of FHA program renders the program and its derived from providing the insurance insured financing in the six counties outweigh the risk of probable costs to regulations outmoded and HUD, currently covered under this program. (See therefore, proposes to suspend the the government; and (2) the Secretary of HUD Appendix to the Budget at page 620 at the Department of Defense certifies that http://www.gpoaccess.gov/usbudget/fy11/ program and remove the regulations. there is no present intention to curtail appendix.html).2 III. Findings and Certification substantially the personnel assigned or II. This Proposed Rule to be assigned to the installation. HUD Regulatory Flexibility Act Consistent with the President’s budget is authorized to establish premiums and The Regulatory Flexibility Act (RFA) other charges to assure that the mortgage request, HUD proposes to suspend the section 238(c) program and remove (5 U.S.C. 601 et seq.) generally requires insurance program authorized under an agency to conduct a regulatory section 238(c) of the Act is actuarially § 203.43e from its codified regulations. HUD’s proposed removal of the flexibility analysis of any rule subject to sound, and to prescribe terms and notice and comment rulemaking conditions relating to the insurance regulations at § 203.43e is not inconsistent with suspension of the requirements, unless the agency certifies found to be necessary and appropriate that the rule will not have a significant to the implementation of section 238(c). section 238(c) mortgage insurance program. As noted in Section I of this economic impact on a substantial HUD’s regulation implementing section number of small entities. 238(c) is codified at 24 CFR 203.43e. preamble, the regulatory language tracks The regulation, promulgated in 1977, the statutory language. As also noted The proposed rule would not modify closely tracks the language of section earlier in this preamble, section 238(c) or add any new regulatory burdens on 238(c) of the Act, and the section 238(c) mortgage insurance operates in a FHA-approved mortgage lenders. mortgage insurance program is not comparable manner as HUD’s primary Rather, the proposed rule would remove subject to any regulatory requirements single-family mortgage insurance. If § 203.43e from HUD’s regulations, in different from HUD’s principal single- HUD subsequently determines that there conformity to HUD’s (and the family mortgage insurance program is a demand for this program and that Administration’s) decision to no longer authorized under section 203(b) of the military families would be better served exercise its authority to insure Act.1 by this program, HUD can reactivate the mortgages under section 238(c) of the Although established to ensure the program on the basis of the statutory Act. As more fully discussed above in availability of affordable housing in language and does not need a regulation the preamble to this rule, the mortgage to make insurance available under this insurance authority provided by section 1 From 1977 to 1983, mortgages insured under program. If such a situation occurs, 238(c) of the Act has been minimally section 238(c) were subject to a higher mortgage HUD would notify the public through sought by eligible borrowers and insurance premium than other FHA single-family Federal Register notice that the program consequently minimally utilized by mortgage insurance programs (0.5 percent vs. 1.0 percent). In 1983, HUD reduced the mortgage has been activated, so that eligible lenders and other small entities insurance premium for section 238(c) mortgages to participating in the FHA programs. conform to other FHA programs because HUD 2 The President’s Budget for FY 2012, found at Further, as noted above, section 238(c) determined that ‘‘the actuarial experience under http://www.whitehouse.gov/omb/budget/Overview, mortgage insurance operated in a Section 238(c) provides no basis for charging a contains identical language to the paragraph cited higher mortgage insurance premium in federally above in the HUD Appendix to the FY 2012 Budget manner comparable to FHA’s mortgage impacted areas’’ (see 48 FR 35088–01). at page 591. insurance program under section 203(b)

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of the Act, HUD’s primary single-family List of Subjects in 24 CFR Part 203 standard requirements, and to approve a mortgage insurance program. Hawaiian Natives, Home state rule establishing a maintenance Accordingly, for the above reasons, improvement, Indians—lands, Loan plan contingency measure. In prior, the undersigned certifies that this rule programs—housing and community separate rulemaking actions, EPA will not have a significant economic development, Mortgage insurance, finalized its action to terminate the 1- impact on a substantial number of small Reporting and recordkeeping hour ozone anti-backsliding section 185 entities. Notwithstanding HUD’s requirements, Solar energy. penalty fee requirement. EPA has determination that this rule will not proposed to approve the Control have a significant effect on a substantial Accordingly, for the reasons Technique Guideline Rules (CTG Rules number of small entities, HUD discussed in the preamble, HUD Update) that are necessary for specifically invites comments regarding proposes to amend 24 CFR part 203 to redesignation. We are proposing that if any less burdensome alternatives to this read as follows: the CTG Rules Update is finalized, the rule that will meet HUD’s objectives as PART 203—SINGLE FAMILY area will have a fully approved SIP that described in the preamble to this rule. MORTGAGE INSURANCE meets all of its applicable 1997 8-hour Executive Order 13132, Federalism requirements and 1-hour anti- 1. The authority citation for part 203 backsliding requirements under section Executive Order 13132 (entitled continues to read as follows: 110 and Part D of the Federal Clean Air ‘‘Federalism’’) prohibits an agency from Act (CAA or Act) for purposes of publishing any rule that has federalism Authority: 12 U.S.C. 1709, 1710, 1715b, 1715z–16, and 1715u; 42 U.S.C. 3535(d). redesignation. implications if the rule either imposes DATES: substantial direct compliance costs on § 203.43e [Removed] Comments must be received on or before September 29, 2011. state and local governments and is not 2. Remove § 203.43e. required by statute, or the rule preempts ADDRESSES: Submit your comments, Dated: August 24, 2011. state law, unless the agency meets the identified by Docket ID No. EPA–R06– consultation and funding requirements Carol J. Galante, OAR–2010–0776, by one of the of section 6 of the Executive Order. This Acting Assistant Secretary for Housing— following methods: • rule will not have federalism Federal Housing Commissioner. Federal Rulemaking Portal: http:// implications and would not impose [FR Doc. 2011–22189 Filed 8–29–11; 8:45 am] www.regulations.gov. Follow the on-line BILLING CODE 4210–67–P instructions for submitting comments. substantial direct compliance costs on • state and local governments or preempt U.S. EPA Region 6 ‘‘Contact Us’’ state law within the meaning of the Web site: http://epa.gov/region6/ Executive Order. ENVIRONMENTAL PROTECTION r6coment.htm. Please click on ‘‘6PD’’ AGENCY (Multimedia) and select ‘‘Air’’ before Unfunded Mandates Reform Act submitting comments. Title II of the Unfunded Mandates 40 CFR Parts 52 and 81 • E-mail: Mr. Guy Donaldson at [email protected]. Please also Reform Act of 1995 (2 U.S.C. 1531– [EPA–R06–OAR–2010–0776; FRL–9456–7] 1538) (UMRA) establishes requirements send a copy by e-mail to the person for federal agencies to assess the effects Approval and Promulgation of listed in the FOR FURTHER INFORMATION of their regulatory actions on state, CONTACT section below. Implementation Plans and Designation • local, and tribal governments, and on of Areas for Air Quality Planning Fax: Mr. Guy Donaldson, Chief, Air the private sector. This proposed rule Purposes; Louisiana; Baton Rouge Planning Section (6PD–L), at fax does not impose any federal mandates number 214–665–7263. Ozone Nonattainment Area: • on any state, local, or tribal Redesignation to Attainment for the Mail: Mr. Guy Donaldson, Chief, governments, or on the private sector, 1997 8-Hour Ozone Standard Air Planning Section (6PD–L), within the meaning of UMRA. Environmental Protection Agency, 1445 AGENCY: Environmental Protection Ross Avenue, Suite 1200, Dallas, Texas Environmental Impact Agency (EPA). 75202–2733. • This proposed rule does not direct, ACTION: Proposed rule. Hand or Courier Delivery: Mr. Guy provide for assistance or loan and Donaldson, Chief, Air Planning Section mortgage insurance for, or otherwise SUMMARY: EPA is proposing to approve (6PD–L), Environmental Protection govern or regulate, real property a request from the State of Louisiana to Agency, 1445 Ross Avenue, Suite 1200, acquisition, disposition, leasing, redesignate the Baton Rouge, Louisiana Dallas, Texas 75202–2733. Such rehabilitation, alteration, demolition, or moderate 1997 8-hour ozone deliveries are accepted only between the new construction, or establish, revise, or nonattainment area to attainment of the hours of 8 a.m. and 4 p.m. weekdays provide for standards for construction or 1997 8-hour ozone standard. In except for legal holidays. Special construction materials, manufactured proposing to approve this request, EPA arrangements should be made for housing, or occupancy. Accordingly, also proposes to approve as a revision deliveries of boxed information. under 24 CFR 50.19(c)(1), this rule is to the Louisiana State Implementation Instructions: Direct your comments to categorically excluded from Plan (SIP), a 1997 8-hour ozone Docket ID No. EPA–R06–OAR–2010– environmental review under the maintenance plan with a 2022 Motor 0776. EPA’s policy is that all comments National Environmental Policy Act of Vehicle Emissions Budget (MVEB) for received will be included in the public 1969 (42 U.S.C. 4321). the Baton Rouge Nonattainment Area docket without change and may be (BRNA or BR). EPA is also proposing to made available online at http:// Catalogue of Federal Domestic approve revisions to the Louisiana SIP www.regulations.gov, including any Assistance that meets the Reasonably Available personal information provided, unless The Catalogue of Federal Domestic Control Technology (RACT) the comment includes information Assistance Number for the principal requirements (for nitrogen oxides (NOX) claimed to be Confidential Business FHA single-family mortgage insurance and volatile organic compounds (VOCs)) Information (CBI) or other information program is 14.117. for the 1-hour and 1997 8-hour ozone whose disclosure is restricted by statute.

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Do not submit through http:// Louisiana Department of Environmental 2. The BRNA Has a Fully Approved SIP www.regulations.gov or e-mail, Quality, 602 N. Fifth Street, Baton Under Section 110(k) of the CAA information that you consider to be CBI Rouge, LA 70802. C. Are the air quality improvements in the BRNA nonattainment area due to or otherwise protected. The http:// FOR FURTHER INFORMATION CONTACT: Ms. www.regulations.gov Web site is an permanent and enforceable emission Sandra Rennie, Air Planning Section reductions resulting from the ‘‘anonymous access’’ system, which (6PD–L), Environmental Protection implementation of state and federal means EPA will not know your identity Agency, Region 6, 1445 Ross Avenue, regulations and other permanent and or contact information unless you Suite 700, Dallas, Texas 75202–2733, enforceable emission reductions? provide it in the body of your comment. telephone (214) 665–7367; fax number 1. Emissions Reductions as Shown by If you send an e-mail comment directly 214–665–7263; e-mail address Emissions Inventory Data 2. Impact of Emissions Controls to EPA without going through http:// [email protected]. www.regulations.gov, your e-mail Implementation: Trend Analysis address will be automatically captured SUPPLEMENTARY INFORMATION: 3. Permanent and Enforceable Emissions and included as part of the comment Throughout this document, ‘‘we,’’ ‘‘us,’’ Controls Implemented that is placed in the public docket and a. Reasonably Available Control and ‘‘our’’ means EPA. Techniques made available on the Internet. If you Table of Contents b. ROP Plans and Attainment submit an electronic comment, EPA Demonstration Plan recommends that you include your I. What are the actions EPA is proposing? c. NOX Control Rules name and other contact information in II. What is the background for these actions? d. Federal Emission Control Measures the body of your comment and with any A. What are the National Ambient Air D. Does the BRNA have a fully approvable disk or CD–ROM you submit. If EPA Quality Standards? maintenance plan pursuant to section cannot read your comment due to B. What is ozone and why do we regulate 175A of the CAA? it? technical difficulties and cannot contact 1. What is required in an ozone C. What is the background for the Baton maintenance plan? you for clarification, EPA may not be Rouge area under the 1-hour ozone able to consider your comment. 2. What is the attainment inventory for the NAAQS? BRNA? Electronic files should avoid the use of D. What is the background for the BRNA 3. Has the state of Louisiana committed to special characters, any form of under the 1997 8-hour ozone NAAQS? maintain the ozone monitoring system in encryption, and be free of any defects or III. What are the impacts of the court the BRNA? viruses. For additional information decisions on EPA’s phase 1 and 2 4. Has the state demonstrated maintenance about EPA’s public docket visit the EPA implementation rules upon the BRNA in the BRNA? Docket Center homepage at http:// redesignation request? 5. What is the contingency plan for the www.epa.gov/epahome/dockets.htm. A. Summary of the Court Decisions BRNA? Docket: All documents in the docket B. Summary of EPA’s Analysis of the a. Verification of Continued Attainment Impact of the Court Decisions on the b. Contingency Plan are listed in the http:// BRNA Area www.regulations.gov index. Although c. Controls to Remain In Effect 1. Requirements under the 1997 Eight-Hour VI. What is EPA’s evaluation of the BR area’s listed in the index, some information is Ozone Standard motor vehicle emissions budgets? not publicly available, e.g., CBI or other 2. Requirements under the One-Hour A. What are the transportation information whose disclosure is Ozone Standard requirements for approvable MVEBs? restricted by statute. Certain other IV. What are the CAA criteria for B. What is the status of EPA’s adequacy material, such as copyrighted material, redesignation? determination? will be publicly available only in hard V. What is EPA’s analysis of the state’s C. Is the MVEB approvable? copy. Publicly available docket redesignation request and maintenance VII. What are EPA’s proposed actions? materials are available either plan and what is the basis for EPA’s VIII. Statutory and Executive Order Reviews proposed actions? electronically in http:// A. Has the BRNA attained the ozone I. What are the actions EPA is www.regulations.gov or in hard copy at NAAQS? proposing? the Air Planning Section (6PD–L), 1. Attainment of the 8-Hour NAAQS Environmental Protection Agency, 1445 2. Attainment of the 1-Hour NAAQS EPA is proposing to take several Ross Avenue, Suite 700, Dallas, Texas B. Has the state of Louisiana met all related actions pursuant to the Act for 75202–2733. The file will be made applicable requirements of section 110 the BRNA moderate 1997 8-hour ozone available by appointment for public and part D of the CAA and does the nonattainment area, consisting of inspection in the Region 6 FOIA Review BRNA have a fully approved SIP under Ascension, East Baton Rouge, Iberville, Room between the hours of 8:30 a.m. section 110(k) of the CAA for purposes Livingston, and West Baton Rouge and 4:30 p.m. weekdays except for legal of redesignation to attainment? Parishes in Louisiana. EPA is proposing 1. The BRNA Has Met All Requirements of holidays. Contact the person listed in to find that the BRNA has met the Section 110 and Part D of the CAA requirements for redesignation under the FOR FURTHER INFORMATION CONTACT Applicable for Purposes of Redesignation paragraph below to make an for the 8-Hour NAAQS section 107(d)(3)(E) of the Act, and is appointment. If possible, please make a. Section 110 and General SIP therefore proposing to approve a request the appointment at least two working Requirements from the State of Louisiana to days in advance of your visit. There will b. Part D SIP Requirements redesignate the BRNA to attainment of be a fee of 15 cents per page for making (i) Has the BRNA met the part D the 1997 8-hour ozone standard. EPA is photocopies of documents. On the day nonattainment requirements under the also proposing to approve, pursuant to of the visit, please check in at the EPA 1-hour ozone standard? section 175A of the Act, the area’s 1997 Region 6 reception area at 1445 Ross (ii) South Coast Anti-Backsliding Measures 8-hour ozone maintenance plan as a (iii) Part D SIP Requirements Under 1997 revision to the Louisiana SIP; to approve Avenue, Suite 700, Dallas, Texas. 8-Hour Standard: Part D, subpart 2 The State submittal, which is part of applicable SIP requirements the plan’s associated 2022 MVEB; to the EPA record, is also available for (iv) Section 176 Conformity Requirements approve additional submissions to meet public inspection at the State Air (v) NSR Requirements applicable VOC and NOX RACT Agency listed below during official (vi) Section 182(a)(1) Inventory requirements; and to approve a State business hours by appointment: Requirements Rule revision that establishes a

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contingency measure for the B. What is ozone and why do we that area met all of its existing maintenance plan. In a separate regulate it? classification requirements, approved a rulemaking, EPA has finalized an action Ozone, a gas composed of three demonstration that the area would to terminate CAA section 185 penalty oxygen atoms, at the ground level is attain but for the transport from another fee requirements for the 1-hour ozone generally not emitted directly by area, and approved the attainment standard. (July 7, 2011, 76 FR 39775). sources such as from a vehicle’s exhaust demonstration SIP with its associated EPA is proposing to find that the BR or an industrial smokestack; rather, elements. See EPA’s ‘‘Guidance on area will satisfy all moderate area ground level ozone is produced by a Extension of Attainment Dates for requirements for the 1997 8-hour ozone chemical reaction between nitrogen Downwind Transport Areas’’ (the Extension Policy) (Richard D. Wilson, NAAQS and severe area 1-hour ozone oxides (NO ) and VOCs in the presence X Acting Assistant Administrator for Air anti-backsliding requirements of sunlight and high ambient and Radiation) July 16, 1998. On applicable for purposes of the area’s temperatures. NO and VOCs are X October 2, 2002, EPA approved the redesignation for the 1997 8-hour ozone referred to as precursors of ozone. Motor revised attainment demonstration SIP standard once the CTG Rule Update is vehicle exhaust and industrial and its associated elements, found the finalized. A fuller discussion of how the emissions, gasoline vapors, and area met all of the serious area BRNA met these requirements is chemical solvents all contain NO and X requirements, found there was transport discussed in detail later in this VOCs. Urban areas tend to have high from Texas affecting the BR area document. The Technical Support concentrations of ground-level ozone, Document (TSD), for this action also reaching attainment, and extended the but areas without significant industrial attainment date for the BR area to provides further information on how the activity and with relatively low BRNA area satisfies the 8-hour moderate November 15, 2005, without vehicular traffic are also subject to reclassifying the area from serious to area requirements and 1-hour severe increased ozone levels because wind area requirements for anti-backsliding severe, consistent with the policy. 67 FR carries ozone and its precursors many 61786 (October 2, 2002). purposes. miles from the sources. The Act Based upon the above, EPA is On December 11, 2002, the U.S. Court establishes a process for air quality of Appeals for the Fifth Circuit vacated proposing to approve the State of management through the NAAQS. Louisiana’s request, submitted on EPA’s attainment date extension policy, Repeated exposure to ozone pollution which had been applied to extend the August 31, 2010, and supplemented on may cause lung damage. Even at very February 14, 2011, through the 1-hour ozone attainment deadline for low concentrations, ground-level ozone the Baton Rouge area without Louisiana Department of Environmental triggers a variety of health problems Quality (LDEQ), to redesignate the reclassifying the area. Sierra Club v. including aggravated asthma, reduced EPA, 314 F.3d 735 (5th Cir. 2002). BRNA to attainment of the 1997 8-hour lung capacity, and increased ozone standard. Thereupon EPA on April 24, 2003, susceptibility to respiratory illnesses withdrew the action extending the II. What is the background for these like pneumonia and bronchitis. It can attainment deadline for Baton Rouge, actions? also have detrimental effects on plants finalized its finding that the area failed and ecosystems. A. What are the National Ambient Air to attain the 1-hour ozone standard by Quality Standards? C. What is the background for the Baton the serious area deadline, and reclassified the Baton Rouge area by Section 109 of the Act requires EPA Rouge area under the 1-hour ozone NAAQS? operation of law, to severe to establish NAAQS for pollutants that nonattainment for the 1-hour ozone ‘‘may reasonably be anticipated to EPA first designated the Baton Rouge standard. See 68 FR 20077.1 As a result endanger public health and welfare,’’ area as an ozone nonattainment area in of its reclassification to severe, the State and to develop a primary and secondary 1978. 43 FR 8964, 8998 (March 3, 1978). was required, among other things, to standard for each NAAQS. The primary The BR 1-hour ozone nonattainment submit by June 23, 2004, a new 1-hour standard is designed to protect human area contains five parishes: East Baton severe attainment demonstration SIP health with an adequate margin of Rouge; West Baton Rouge; Ascension; with an attainment date of November safety, and the secondary standard is Iberville; and Livingston Parishes (40 15, 2005, with a 25 ton per year major designed to protect public welfare and CFR 81.319). In 1991, the BR area was stationary source threshold, additional the environment. EPA has set NAAQS designated nonattainment by operation reasonably available control technology for six common air pollutants, referred of law and EPA classified the BR area (RACT) rules for sources subject to the to as criteria pollutants: Carbon as a ‘‘serious’’ ozone nonattainment area new lower major stationary source monoxide, lead, nitrogen dioxide, with a statutory attainment deadline of ozone, particulate matter, and sulfur November 15, 1999. 56 FR 56694 1 Petitions for review of the October 2, 2002, dioxide. These standards present state (November 6, 1991). EPA approved the rulemaking were filed in the U.S. Court of Appeals and local governments with the serious attainment demonstration SIP for the Fifth Circuit (Louisiana Environmental Action Network (LEAN) v. EPA, No. 02–60991). The minimum air quality levels they must and its associated elements, e.g., issues raised concerned EPA’s decision to approve meet to comply with the Act. Also, attainment Motor Vehicle Emissions Louisiana’s substitute contingency measures plan, these standards provide information to Budgets (MVEB), the Reasonably the revised attainment demonstration SIP with a residents of the United States about the Available Control Measures (RACM) later attainment deadline without reclassifying the area to severe, and the associated precursor trading air quality in their communities. A demonstration, on July 2, 1999. See 64 provision of the NSR rules. On February 25, 2003, State’s SIP addresses these FR 35930. The BR area, however, did the court granted EPA’s partial voluntary remand to requirements, as required by section 110 not attain by the serious area statutory allow EPA the time to meet the December 2002 court decision by withdrawing its approval of the and other provisions of the Act. The SIP deadline of November 15, 1999. Before revised attainment demonstration SIP that extended is a set of air pollution regulations, this deadline however, EPA had issued the attainment deadline without reclassifying the control strategies, other means or a guidance memorandum that allowed area and the associated NSR precursor trading techniques, and technical analyses an area to retain its existing provision. The court also addressed the substitute contingency measures claim, and vacated and developed by the state, to ensure that classification and receive a later remanded EPA’s approval of the contingency the state meets the NAAQS. attainment deadline if the EPA found measures.

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threshold, a new source review (NSR) requirements related to attainment of continues to attain the 1997 8-hour offset requirement of at least 1.3 to 1, a the 1-hour ozone NAAQS. See 75 FR ozone standard. See Section V.A. rate of progress in emission reductions 6570. Lastly, on July 7, 2011, EPA The deadline for submission of of ozone precursors of at least 3 percent finalized its action to terminate the CAA requirements to meet the area’s new of baseline emissions per year from section 185 penalty fee requirements for 8-hour moderate nonattainment area November 15, 1999, until the attainment the Baton Rouge 1-hour ozone standard. classification was January 1, 2009 (73 year, additional transportation control For a more detailed rationale, see our FR 14391). The LDEQ, on December 14, measures (TCMs) needed to offset proposed and final actions at 76 FR 2009, submitted a request that EPA growth in emissions due to growth in 17368 and 76 FR 39775. determine that the BRNA was vehicle miles traveled (VMT), and a fee monitoring attainment for the 1997 8- D. What is the background for the BRNA requirement for major stationary sources hour ozone standard. As stated earlier, under the 1997 8-hour ozone NAAQS? of volatile organic compounds (VOC) EPA finalized a determination of and nitrogen oxides (NOx) should the On July 18, 1997, EPA promulgated a attainment on September 9, 2010. This area fail to attain by 2005. The state was revised 8-hour ozone standard of 0.08 determination suspended the required to implement the EPA- parts per million (ppm), which is more requirement for a 1997 8-hour triggered failure-to-attain contingency protective than the previous 1-hour attainment demonstration, 8-hour rate of measures, submit a replacement for, i.e., ozone standard (62 FR 38855).3 The progress plan and 8-hour contingency backfill for, the triggered failure-to- EPA published the 1997 8-hour ozone measures. (See 75 FR 54778). On August attain contingency measures, and to designations and classifications on 31, 2010, the state submitted a request meet the remaining severe area April 30, 2004 (69 FR 23858). The for redesignation to attainment. As requirements under section 182(d) of BRNA was designated nonattainment stated previously, the request included the Act. The State submitted severe area and initially classified as marginal. The a maintenance plan with associated rules that addressed the 25 tpy and area includes five parishes (counties): MVEB. major source offset requirements,2 a Ascension, East Baton Rouge, Iberville, VMT offset analysis, and a substitute Livingston, and West Baton Rouge III. What are the impacts of the court contingency measure to replace the (these constitute the former 1-hour decisions on EPA’s phase 1 and 2 serious area contingency measure that ozone nonattainment area). The implementation rules upon the BRNA was previously approved into the effective date of designation for the 1997 redesignation request? serious area attainment demonstration. 8-hour ozone NAAQS was June 15, A. Summary of the Court Decisions Upon reclassification to severe, under 2004. Under the marginal The following sets forth EPA’s views section 211(k) of the Act, the use of nonattainment designation, the latest on the effect of the U.S. Court of reformulated gasoline (RFG) was to be attainment date for the BRNA was June Appeals for the District of Columbia required in the BRNA one year after the 15, 2007. The BRNA did not monitor rulings on this proposed redesignation effective date of the reclassification. The attainment of the 1997 8-hour ozone action. For the reasons set forth below, Louisiana Department of Environmental NAAQS by the June 15, 2007 deadline, EPA does not believe that the Court’s Quality, the City of Baton Rouge, and based upon complete, quality-assured rulings alter any requirements relevant the Chamber of Greater Baton Rouge all and certified ambient air quality to this redesignation action or prevent formally requested a waiver and/or monitoring data for the 2004–2006 EPA from proposing or ultimately delay of implementation of the RFG ozone seasons. requirement in the Baton Rouge severe Therefore, EPA determined that the finalizing this redesignation. EPA ozone nonattainment area. EPA denied BRNA had failed to attain the 1997 believes that the Court’s December 22, these requests. The City and the 8-hour ozone standard by the applicable 2006, June 8, 2007, and July 10, 2009, Chamber filed a Petition for Review in attainment deadline and the area was decisions impose no impediment to the U.S. Court of Appeals for the Fifth reclassified by operation of law as a moving forward with redesignation of Circuit. The parties filed a joint motion moderate 1997 8-hour ozone this area to attainment, because even in for a voluntary remand to EPA to allow nonattainment area, effective April 21, light of the court’s decisions, it to reconsider its decision in light of 2008 (73 FR 15087). This determination redesignation is appropriate under the new information. On August 2, 2004, was based on ambient air quality data relevant redesignation provisions of the the Fifth Circuit Court of Appeals from the 2004–2006 monitoring period. CAA and longstanding policies approved the joint motion, remanding In a subsequent rulemaking (September regarding redesignation requests. EPA published a first phase rule the matter to EPA and staying the 9, 2010, 75 FR 54778) EPA determined governing implementation of the 1997 litigation and enforcement of the RFG that (based on monitoring data for 2006– 8-hour ozone standard (Phase 1 Rule) on requirement for the BRNA during the 2009 monitoring periods and April 30, 2004 (69 FR 23951). The Phase remand. The Court’s stay of enforcement preliminary 2010 data) the BRNA has 1 Rule addresses classifications for the of the RFG requirement in the BRNA since attained the 1997 8-hour ozone 1997 8-hour NAAQS and for revocation currently remains in effect. standard. Recent certified air quality for the 1-hour NAAQS; how anti- On February 10, 2010 EPA data for 2010 indicate that the BRNA determined that the BRNA area was backsliding principles will ensure attaining the 1-hour ozone standard 3 On March 27, 2008 (73 FR 16436), EPA continued progress toward attainment of based on quality-assured, certified data promulgated a revised 8-hour ozone standard of the 1997 8-hour NAAQS; attainment for the 2006–2008 ozone monitoring 0.075 ppm. On January 6, 2010, EPA proposed to dates; and the timing of emissions set the level of the primary 8-hour ozone standard reductions needed for attainment. The seasons. This determination suspended within the range of 0.060 to 0.070 ppm, rather than the 1-hour attainment demonstration at 0.075 ppm. EPA anticipates that by August 2011 Phase 1 Rule revoked the 1-hour ozone requirement, 1-hour rate of progress it will have completed reconsideration of the standard. The Phase 1 Rule also requirement, the 1-hour contingency standard and thereafter will proceed with provided that 1-hour ozone measures, and other SIP planning designations. The actions addressed in today’s nonattainment areas are required to proposed rulemaking relate only to redesignation adopt and implement ‘‘applicable for the 1997 8-hour ozone standard. EPA’s actions 2 However, the State subsequently reversed these with respect to this new standard do not affect requirements’’ according to the area’s rules when the 1-hour ozone standard was revoked. EPA’s action here. classification under the 1-hour ozone

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standard for anti-backsliding purposes. B. Summary of EPA’s Analysis of the containing such area has met all See 40 CFR 51.905(a)(i). On May 26, Impact of the Court Decisions on the requirements applicable to the area 2005, we determined that an area’s BRNA Area under CAA section 110 and part D. 1-hour designation and classification as 1. Requirements under the 1997 Eight- EPA provided guidance on of June 15, 2004 would dictate what 1- Hour Ozone Standard redesignation in the General Preamble hour obligations remain as ‘‘applicable for the Implementation of Title I of the requirements’’ under the Phase 1 Rule. For the 1997 8-hour ozone standard, CAA Amendments of 1990, on April 16, 40 CFR 51.900(f). (70 FR 30592). As the BRNA ozone nonattainment area 1992 (57 FR 13498), and supplemented discussed previously, the Baton Rouge was originally classified as marginal this guidance on April 28, 1992 (57 FR area’s classification under the 1-hour nonattainment under subpart 2 of the 18070). EPA has provided further standard as of June 15, 2004 was CAA and reclassified to moderate on guidance on processing redesignation ‘‘severe.’’ March 21, 2008 (73 FR 15087). The June requests in the following documents: On December 22, 2006, the U.S. Court 8, 2007, opinion clarifies that the Court 1. ‘‘Ozone and Carbon Monoxide of Appeals for the District of Columbia did not vacate the Phase 1 Rule’s Design Value Calculations,’’ vacated EPA’s Phase 1 Rule in South provisions with respect to Memorandum from Bill Laxton, June 18, Coast Air Quality Management Dist. v. classifications for areas under subpart 2. 1990. EPA, 472 F.3d 882 (D.C. Cir. 2006). On The Court’s decision, therefore, upholds 2. ‘‘Maintenance Plans for June 8, 2007, in response to several EPA’s classifications for those areas Redesignation of Ozone and Carbon petitions for rehearing, the Court classified under subpart 2 for the eight- Monoxide Nonattainment Areas,’’ clarified that the Phase 1 rule was hour ozone standard, and all eight-hour Memorandum from G.T. Helms, Chief, vacated only with regard to those parts ozone requirements for these areas Ozone/Carbon Monoxide Programs of the rule that had been successfully remain in place. Branch, April 30, 1992; challenged. See 489 F.3d 1245 (D.C. Cir. 2. Requirements Under the One-Hour 3. ‘‘Contingency Measures for Ozone 2007), cert. denied, 128 S.Ct. 1065 Ozone Standard and Carbon Monoxide (CO) (2008). By limiting the vacatur, the Redesignations,’’ Memorandum from Court let stand EPA’s revocation of the In its June 8, 2007, decision, the Court limited its vacatur so as to uphold those G.T. Helms, Chief, Ozone/Carbon 1-hour standard and those anti- Monoxide Programs Branch, June 1, backsliding provisions of the Phase 1 provisions of EPA’s anti-backsliding requirements that were not successfully 1992; rule that had not been successfully 4. ‘‘Procedures for Processing challenged. The June 8, 2007 opinion challenged. Therefore, an area must Requests to Redesignate Areas to reaffirmed the December 22, 2006 meet the anti-backsliding requirements, Attainment’’, Memorandum from John decision that EPA had improperly failed see 40 CFR 51.900, et seq.; 70 FR 30592, Calcagni, Director, Air Quality to retain four measures required for 30604 (May 26, 2005), which apply by Management Division, September 4, 1-hour nonattainment areas under the virtue of the area’s classification for the 1992; anti-backsliding provisions of the one-hour ozone NAAQS. As set forth in 5. ‘‘State Implementation Plan (SIP) regulations: (1) Nonattainment area new more detail below, the area must also Actions Submitted in Response to Clean source review (NSR) requirements based address several additional anti- Air Act (ACT) Deadlines,’’ on an area’s 1-hour nonattainment backsliding provisions identified by the classification; (2) section 185 penalty Court in its decisions. We address later Memorandum from John Calcagni, fees for 1-hour severe or extreme on in this notice how the 1-hour anti- Director, Air Quality Management nonattainment areas that fail to attain backsliding obligations (as interpreted Division, October 28, 1992; the 1-hour standard by the 1-hour and directed by the court) are met in the 6. ‘‘Technical Support Documents attainment date; and (3) measures to be context of a redesignation action for the (TSDs) for Redesignation of Ozone and implemented pursuant to section 1997 8-hour NAAQS. Carbon Monoxide (CO) Nonattainment 172(c)(9) or 182(c)(9) of the Act, on the Areas’’, Memorandum from G.T. Helms, IV. What are the CAA criteria for Chief, Ozone/Carbon Monoxide contingency of an area not making redesignation? reasonable further progress toward Programs Branch, August 17, 1993; attainment of the 1-hour NAAQS or for The Act sets forth the requirements 7. ‘‘State Implementation Plan (SIP) failure to attain that NAAQS; and (4) the for redesignating a nonattainment area Requirements for Areas Submitting court clarified that the Court’s reference to attainment. Specifically, CAA section Requests for Redesignation to to conformity requirements was limited 107(d)(3)(E) allows for redesignation Attainment of the Ozone and Carbon to requiring the continued use of 1-hour provided that (1) The Administrator Monoxide (CO) National Ambient Air motor vehicle emissions budgets until determines that the area has attained the Quality Standards (NAAQS) On or After 8-hour budgets were available for applicable NAAQS; (2) the November 15, 1992’’, Memorandum 8-hour conformity determinations. Administrator has fully approved the from Michael Shapiro, Acting Assistant EPA published a second rule applicable implementation plan for the Administrator for Air and Radiation, governing implementation of the 1997 area under CAA section 110(k); (3) the September 17, 1993; 8-hour ozone standard (Phase 2 Rule) on Administrator determines that the 8. ‘‘Use of Actual Emissions in November 29, 2005 (70 FR 71612), as improvement in air quality is due to Maintenance Demonstrations for Ozone revised on June 8, 2007 (72 FR 31727). permanent and enforceable reductions and CO Nonattainment Areas,’’ The Phase 2 Rule addressed, among in emissions resulting from Memorandum from D. Kent Berry, other things, the Clean Data Policy as implementation of the applicable SIP Acting Director, Air Quality codified in 40 CFR 51.918. The Court and applicable Federal air pollutant Management Division, November 30, upheld the Clean Data Policy, agreeing control regulations and other permanent 1993; with the Tenth Circuit that EPA’s and enforceable reductions; (4) the 9. ‘‘Part D New Source Review (Part interpretation of the Act was reasonable. Administrator has fully approved a D NSR) Requirements for Areas NRDC v. EPA, 571 F.3d 1245 (D.C. Cir. maintenance plan for the area as Requesting Redesignation to 2009). See Sierra Club v. EPA, 99 F.3d meeting the requirements of CAA Attainment,’’ Memorandum from Mary 1551 (10th Cir. 1996). section 175A; and (5) the State D. Nichols, Assistant Administrator for

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Air and Radiation, October 14, 1994; V. What is EPA’s analysis of the state’s based on complete quality-assured, and redesignation request and maintenance certified data for the 2006–2009 ozone 10. ‘‘Reasonable Further Progress, plan and what is the basis for EPA’s monitoring seasons. For a more detailed Attainment Demonstration, and Related proposed actions? rationale, see our final action at 75 FR Requirements for Ozone Nonattainment A. Has the BRNA attained the ozone 54778 (September 9, 2010). Since that Areas Meeting the Ozone National NAAQS? time, complete, quality-assured and certified monitoring data for the 2010 Ambient Air Quality Standard,’’ EPA has previously determined that calendar year have become available Memorandum from John S. Seitz, that the BRNA ozone nonattainment Director, Office of Air Quality Planning area has attained both the 1- hour and that show the area is still attaining the and Standards, May 10, 1995. 1997 8-hour ozone standards. As set 1997 8-hour standard. Draft air quality 4 forth below, data available subsequent monitoring data indicate the area is to those determinations shows that the still attaining the 1997 8-hour ozone area continues to attain both standards. standard. The fourth high values for 8-hour ozone for 2010, and the 3-year 1. Attainment of the 8-Hour NAAQS average of these values (i.e., design EPA determined that the BRNA area value), are summarized in Table 1: was attaining the 1997 8-hour standard

TABLE 1—BRNA AREA, FOURTH HIGHEST 8-HOUR OZONE CONCENTRATIONS AND DESIGN VALUES DATA SUMMARY (PPM) 1

4th Highest daily max Design values three year Site averages 2008 2009 2010 2008–2010

Plaquemine (22–047–0009) ...... 0.076 0.071 0.074 0.073 Carville (22–047–0012) ...... 0.073 0.076 0.072 0.073 Dutchtown (22–005–0004) ...... 0.074 0.074 0.078 0.075 Baker (22–033–1001) ...... 0.071 0.071 0.075 0.072 LSU (22–033–0003) ...... 0.072 0.084 0.080 0.078 Grosse Tete (22–047–0007) ...... 0.071 0.070 0.074 0.071 Port Allen (22–121–0001) ...... 0.072 0.072 0.071 0.071 Pride (22–033–0013) ...... 0.074 0.072 0.071 0.072 French Settlement (22–063–0002) ...... 0.075 0.075 0.076 0.075 Capitol (22–033–0009) ...... 0.067 0.076 0.076 0.073 1 Unlike for the 1-hour ozone standard, design value calculations for the 8-hour ozone standard are based on a rolling three-year average of the annual 4th highest values (40 CFR part 50, Appendix I).

In addition, as discussed below with design value for the BRNA was 0.078 TABLE 2—SUMMARY OF 1-HOUR respect to the maintenance plan, ppb. Draft data available for 2011 are DESIGN VALUES THROUGH 2010 Louisiana has committed to continue consistent with continued attainment. monitoring in this area in accordance In summary, the data show BRNA has Monitoring period Design value with 40 CFR part 58. attained the 1997 8-hour ozone NAAQS. (ppb) Should the area violate the 1997 2. Attainment of the 1-Hour NAAQS 2006–2008 ...... 114 8-hour ozone standard before the 2007–2009 ...... 114 proposed redesignation is finalized, On February 10, 2010 EPA 2008–2010 ...... 107 EPA will not proceed with final determined that the BRNA area was redesignation. attaining the 1-hour ozone standard B. Has the state of Louisiana met all The ozone monitoring network run by based on quality-assured, certified data applicable requirements of section 110 LDEQ in the BRNA has monitored for the 2006–2008 ozone monitoring and part D of the CAA and does the attainment with the 1997 8-hour ozone seasons. For a more detailed rationale, BRNA have a fully approved SIP under standard based on data from 2006 see our final action at 75 FR 6570. Since section 110(k) of the CAA for purposes through 2010. The 1997 ozone NAAQS of redesignation to attainment? is 0.08 parts per million based on the that time, complete, quality-assured and three-year average of the fourth-highest certified data that have become EPA has reviewed the Louisiana SIP daily maximum 8-hour average ozone available showing the area continues to for the BR area with respect to SIP concentration measured at each monitor attain the 1-hour ozone standard as requirements applicable for purposes of within an area. The 1997 ozone shown in Table 2. redesignation under part D of the Act for standard is considered to be attained at both the 1-hour ozone NAAQS and the 84 parts per billion (ppb). The design 1997 8-hour ozone NAAQS. EPA value for the monitoring period 2006– believes that, with the exception of 2008 was 0.083 ppb. For the monitoring certain 1-hour and 8-hour ozone RACT period 2007–2009, it was 0.080 ppb. For requirements that will be acted on in a the monitoring period 2008–2010, the separate rulemaking, the Louisiana SIP

4 http://www.deq.louisiana.gov/portal/ AmbientAirMonitoringProgram/ DIVISIONS/Assessment/AirFieldServices/ AirMonitoringData.aspx.

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for the BRNA currently contains continues to monitor attainment of and construction of any stationary approved SIP measures that meet the those standards. These requirements source within the areas covered by the part D requirements applicable for will cease to apply upon redesignation plan; include provisions for the purposes of redesignation. We are also to attainment. implementation of part C, Prevention of proposing to find that the area meets the In addition, in the context of Significant Deterioration (PSD) and part severe area 1-hour ozone and 1997 redesignations, EPA has interpreted D, NSR permit programs; include 8-hour RACT requirements, provided requirements related to attainment as criteria for stationary source emission that EPA finally approves in a separate not applicable for purposes of control measures, monitoring, and rulemaking action the RACT redesignation. For example, in the reporting; include provisions for air requirements for the source categories General Preamble EPA stated that: quality modeling; and provide for covered by the CTG Rules Update. As [T]he section 172(c)(9) requirements are public and local agency participation in discussed previously, EPA, in a separate directed at ensuring RFP and attainment by planning and emission control rule final rulemaking, has approved the the applicable date. These requirements no development. termination of the section 185 penalty longer apply when an area has attained the We believe that the section 110 fee requirement. The 1-hour and 1997 standard and is eligible for redesignation. elements that are not connected with 8-hour ozone applicable requirements Furthermore, section 175A for maintenance nonattainment plan submissions and are discussed in detail below. plans * * * provides specific requirements not linked with an area’s attainment In evaluating a request for for contingency measures that effectively status are not applicable requirements redesignation, EPA’s long-held position supersede the requirements of section for purposes of redesignation. A State 172(c)(9) for these areas. [General Preamble is that those requirements expressly for the Interpretation of Title I of the Clean remains subject to these requirements linked by statutory language with the Air Act Amendments of 1990,’’ (General after an area is redesignated to attainment and reasonable further Preamble) 57 FR 13498, 13564 (April 16, attainment. Only the section 110 and progress requirements do not apply if 1992)] part D requirements that are linked with EPA determines that the area is See also Calcagni memorandum dated a particular area’s designation and attaining the standard. Additionally, it Sept 4, 1992 (‘‘The requirements for classification are the relevant measures is EPA’s interpretation of CAA section reasonable further progress and other which we may consider in evaluating a 107(d)(3)(E) that applicable measures needed for attainment will not redesignation request. This approach is requirements of the Act that come due apply for redesignations because they consistent with EPA’s existing policy on subsequent to the area’s submittal of a only have meaning for areas not applicability of conformity and complete redesignation request remain attaining the standard.’’ From the oxygenated fuels requirements for redesignation purposes, as well as with applicable until a redesignation is memorandum, section 4.b.i.). approved, but are not required as a In prior separate actions, EPA has section 184 ozone transport prerequisite to redesignation. Under this finalized the termination of the requirements. See Reading, interpretation, to qualify for requirement for the 1-hour ozone 185 Pennsylvania, proposed and final redesignation, states requesting fees program. EPA has proposed rulemakings (61 FR 53174–53176 redesignation to attainment must meet approval of the CTG Rules Update. EPA (October 10, 1996)) and (62 FR 24826 only the relevant requirements of the is thus proposing to find that upon final (May 7, 1997)); Cleveland-Akron-Lorain, Act that come due prior to the submittal approval of the CTG Rules Update, the Ohio, final rulemaking (61 FR 20458 (May 7, 1996)); and Tampa, Florida, of a complete redesignation request. See BRNA will have a fully approved SIP Sierra Club v. EPA, 375 F.3d 537 (7th final rulemaking (60 FR 62748 under 110(k) for redesignation purposes Cir. 2004). See also 68 FR 25424, 25427 (December 7, 1995)). See also the and it will meet all CAA 110 and part (May 12, 2003) (redesignation of St. discussion on this issue in the D applicable requirements for purposes Louis, Missouri); September 4, 1992 Cincinnati, Ohio 1-hour ozone of redesignation for the 1997 8-hour Calcagni memorandum; September 17, redesignation (65 FR 37890 (June 19, ozone standard. 1993 Michael Shapiro memorandum, 2000)), and in the Pittsburgh, and 60 FR 12459, 12465–66 (March 7, 1. The BRNA Has Met All Requirements Pennsylvania 1-hour ozone 1995) (redesignation of Detroit-Ann of Section 110 and Part D of the CAA redesignation (66 FR 50399 (October 19, Arbor, MI). Applicable for Purposes of 2001)). The applicable 1997 8-hour ozone Redesignation for the 8-Hour NAAQS We have reviewed Louisiana’s SIP standard requirements for the BRNA and have concluded that it meets the a. Section 110 and General SIP area are those for a moderate general SIP requirements under section Requirements nonattainment area. 110 of the CAA to the extent they are Because EPA found the BRNA Section 110(a) of Title I of the CAA applicable for purposes of monitored attainment of the 1-hour and contains the general requirements for a redesignation. EPA has previously 1997 8-hour standards (see citations in SIP. Section 110(a)(2) provides that the approved provisions of the Louisiana section V.A. above), it suspended the implementation plan submitted by a SIP addressing section 110 elements requirements for the state to submit State must have been adopted by the under the 1-hour ozone standard (40 certain planning SIPs related to State after reasonable public notice and CFR 52.970–.999). In addition, EPA has attainment, including attainment hearing, and, among other things, must: proposed approval of a section 110(a)(2) demonstration requirements, the Include enforceable emission Infrastructure SIP for PM2.5 and the reasonably available control measures limitations and other control measures, 1997 8-hour ozone standard. (April 18, (RACM) requirement of section 172(c)(1) means or techniques necessary to meet 2011, 76 FR 21682) Final action on the of the Act, the reasonable further the requirements of the CAA; provide April 18, 2011 proposal is not required progress (RFP) and attainment for establishment and operation of for purposes of redesignation. demonstration requirements of sections appropriate devices, methods, systems, 172(c)(2) and (6) and 182(b)(1) of the and procedures necessary to monitor b. Part D SIP Requirements Act, and the requirement for ambient air quality; provide for EPA has reviewed the Louisiana SIP contingency measures of section implementation of a source permit for the BRNA area with respect to SIP 172(c)(9) of the Act as long as the area program to regulate the modification requirements applicable for purposes of

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redesignation under part D of the Act for except as provided in paragraph (a)(1)(iii) of (CTGs) issued by EPA and for ‘‘major both the 1-hour ozone NAAQS and this section and except as provided in sources’’ of volatile organic compounds paragraph (b) of this section. the1997 8-hour ozone NAAQS. EPA (VOCs) and nitrogen oxides (NOX), believes that the Louisiana SIP for the Section 51.900(f), as amended by 70 which are ozone precursors. See 42 BRNA area contains approved SIP FR 30592, 30604 (May 26, 2005), states: U.S.C. sections 7502(c)(1) and 7511a(b) measures that meet the part D Applicable requirements means for an area and (f). RACT is defined as the lowest requirements applicable for purposes of the following requirements to the extent such emissions limitation that a particular redesignation. EPA has approved or requirements apply or applied to the area for source is capable of meeting by the proposed to approve all of the required the area’s classification under section application of control technology that is Part D elements. We are proposing to 181(a)(1) of the CAA for the 1-hour NAAQS reasonably available considering find the NOX and VOC RACT at the time of designation for the 8-hour technological and economic feasibility requirements have been met as part of NAAQS: (44 FR 53762; September 17, 1979). A this redesignation action. The VOC (1) Reasonably available control technology CTG provides information on the RACT finding is contingent on our (RACT). available controls for a source category (2) Inspection and maintenance programs finalizing our proposed approval of the (I/M). and provides a ‘‘presumptive norm’’ rules implementing RACT controls on (3) Major source applicability cut-offs for RACT. In this action, EPA is addressing the source categories covered by the purposes of RACT. RACT for both NOX and VOCs in the BR CTG Rules Update. As discussed (4) Rate of Progress (ROP) reductions. area for the 1997 previously, we have finalized a separate (5) Stage II vapor recovery. 8-hour ozone standard, and for the 1- action approving the termination of the (6) Clean-fuel vehicle program under hour standard. 185 fee requirement. Upon final section 182(c)(4) of the CAA. The Phase 1 Rule provides that 1-hour approval of the CTG Rules Update, the (7) Clean fuels for boilers under section ozone nonattainment areas designated BRNA area will meet all of the 182(e)(3) of the CAA. as nonattainment for the 8-hour ozone requirements applicable to the area (8) Transportation Control Measures NAAQS are required to adopt and (TCMs) during heavy traffic hours as implement ‘‘applicable requirements’’ under part D for purposes of provided under section 182(e)(4) of the CAA. redesignation. The 1-hour and 1997 8- (9) Enhanced (ambient) monitoring under according to the area’s classification hour ozone applicable requirements are section 182(c)(1) of the CAA. under the 1-hour ozone standard at the discussed in detail below. (10) TCMs under section 182(c)(5) of the time of designation under the 8-hour standard (see 40 CFR 51.905(a)(i)). The (i) Has the BRNA met the part D CAA. (11) Vehicle Miles Travelled (VMT) BR area was classified as a severe nonattainment area requirements under provisions of section 182(d)(1) of the CAA. nonattainment area for the 1-hour ozone the 1-hour ozone standard? (12) NOX requirements under section 182(f) NAAQS at the time of the 8-hour The Baton Rouge 1-hour ozone of the CAA. designation and an outstanding nonattainment area was reclassified as (13) Attainment demonstration or ‘‘applicable requirement’’ for the BR severe for that standard, effective June alternative as provided under section area is VOC and NO RACT. Louisiana 51.905(a)(1)(ii). X 23, 2003. Thus, the 1-hour ozone previously adopted rules to address standard requirements applicable to the As explained earlier in this action, in RACT requirements for all source area are those that apply to addition to applicable requirements categories covered by EPA CTGs that nonattainment areas classified as severe. listed under section 51.900(f), the State had been issued up to that time, and to Upon reclassification to severe, under must also comply with the additional 1- address major sources at the serious area section 211(k) of the Act, the use of hour anti-backsliding requirements major source threshold of 50 tons per reformulated gasoline also was to be discussed in the Court’s decisions in year (tpy). The reclassification of the required in the BRNA one year after the South Coast Air Quality Management area from serious to severe for the 1- effective date of the reclassification. Dist. v. EPA: (1) NSR requirements hour ozone standard, on April 24, 2003 However, the state never implemented based on the area’s 1-hour ozone (68 FR 20077), required Louisiana to RFG in the BR area. As noted earlier, nonattainment classification; (2) section ensure that RACT was in place on non- enforcement of the RFG requirement in 185 source penalty fees; (3) contingency CTG sources down to 25 tpy. Louisiana the BRNA is currently stayed by court measures to be implemented pursuant has submitted SIP revisions to address order. As such, the state has not relied to section 172(c)(9) or 182(c)(9) of the the NOX and VOC RACT requirement on the RFG program in the past for CAA for areas not making reasonable for non-CTG sources down to 25 tpy for emissions reduction and does not rely further progress toward attainment of BR for purposes of the 1-hour ozone on RFG in its maintenance plan for the one-hour ozone NAAQS, or for requirement and to address NOX and attainment purposes. Since it is a failure to attain the NAAQS; and, (4) VOC RACT for the 8-hour ozone program implemented by EPA and not transportation conformity requirements NAAQS. On June 15, 2005, Louisiana by the State, we do not consider RFG a for certain types of Federal actions. submitted rule revisions lowering the necessary requirement for redesignation. The following discusses how the major source NOX and VOC A detailed analysis of the relevant applicable CAA requirements have been applicability from 50 to 25 tpy for requirements and their status is met in the BRNA. purposes of non-CTG RACT. We provided below. 40 CFR 51.905 (1), (3), and (12). approved these rule revisions as part of The anti-backsliding provisions at 40 RACT, Major source applicability cut- a larger package on July, 5, 2011 (76 FR CFR 51.905(a)(1) prescribe 1-hour ozone offs for purposes of RACT, and NOX 38977). NAAQS requirements that continue to requirements under section 182(f) of the For the 1997 8-hour ozone RACT apply after revocation of the 1-hour CAA. Sections 172(c)(1) and 182 of the requirements, according to EPA’s Phase ozone NAAQS for former 1-hour ozone CAA require areas that are classified as 2 Rule (70 FR 71612, November 29, nonattainment areas. Section moderate or above for ozone 2005), areas classified as moderate 51.905(a)(1) provides that: nonattainment to adopt Reasonably nonattainment or higher must submit a The area remains subject to the obligations Available Control Technology (RACT) demonstration, as a revision to the SIP, to adopt and implement the applicable requirements for sources that are subject that their current rules fulfill 1997 8- requirements defined in section 51.900(f), to Control Techniques Guidelines hour ozone RACT requirements for all

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CTG categories and all major non-CTG To ensure RACT was in place for ozone nonattainment area. This plan sources. The State may either major sources, the State identified all covered the 3-year period between 1996 demonstrate the existing SIP approved sources that emit or have the potential and1999, achieving 9 percent reductions RACT rules continue to be RACT or to emit at least 25 tons/year of VOC in no later than November 15, 1999. As submit revised RACT rules (See EPA’s the BR 1997 8-hour ozone discussed previously, ROP is not a Phase 2 Rule: 70 FR 71612, as further nonattainment area. The State provided required element for redesignation explained in a memo from William T. a list of each major source in a source request. With the Clean Data Harnett dated May 19, 2006, which is category covered by a CTG/ACT and the determinations for the 8-hour and 1- included in the docket). Since BR is rules applicable to those major sources. hour ozone standards, EPA suspended classified as moderate for the 1997 8- The State’s RACT SIP analysis was the obligations to submit SIP provisions hour ozone standard, for purposes of available for public comment prior to to meet the 1-hour and 8-hour Rate of meeting the 8-hour RACT requirement, adoption by the State. For the RACT Progress requirements. If EPA finalizes the BR area must demonstrate RACT portion of its August 2010 submittal, the approval of this redesignation, these level controls for sources covered by a State received a comment letter from obligations will be terminated. CTG document, and for each major non- EPA which was addressed in the 40 CFR 51.905 (5) Stage II vapor CTG source. adopted rulemaking with an recovery. EPA approved Louisiana Stage Louisiana has submitted several SIP amendment for the RACT analysis. EPA II Vapor Recovery rules for the BRNA on revisions to address the 1997 8-hour evaluated the following elements of March 25, 1994 (59 FR 14112). ozone standard RACT requirements for LDEQ’s RACT SIP submittal for the BR 40 CFR 51.905 (6) Clean-Fuel Vehicle NOX and VOCs for BR. These revisions Area: program under section 182(c)(4) of the are being addressed by EPA through two • State Rules Addressing NOX RACT CAA. The State met this requirement actions. Requirements and VOC RACT with a substitute program, which we First, on June 20, 2009 and August 20, Requirements for sources Covered by a approved on July 19, 1999 (64 FR 2010, Louisiana submitted SIP revisions CTG/ACT. 38577). This program imposes controls to control VOC emissions in response to • Potential Major VOC Emissions beyond the Act’s requirements (i.e., CTGs issued in 2006, 2007, and 2008. Sources possibly not covered by a CTG/ RACT) for storage tanks in the BRNA by On March 17, 2011, we proposed to ACT. requiring guide pole and stilling well approve these SIP revisions, which we EPA reviewed LDEQ’s RACT analysis controls on external floating roof tanks. refer to as the CTG Rules Update (76 FR including the State’s Rules and The resultant long term emission 14602). As part of the CTG Updates evaluation of major sources. Also, EPA reductions were greater than the proposed rule, we also proposed reviewed LDEQ’s emissions inventory Louisiana Clean Fuel Fleet program approval, through parallel processing, of database for potential sources missing emission reductions in the ozone a revision proposed by Louisiana on from the LDEQ analysis. Based on this nonattainment area. We had previously January 20, 2011. If EPA issues a final review, LDEQ’s RACT analysis, approved a Clean Fuel Fleet program on approval of the rules addressed in the including its identification of all sources December 22, 1995 (60 FR 54305). CTG Rules Update by the time this requiring RACT, appeared to be 40 CFR 51.905 (7) Clean fuels for redesignation goes final, then Louisiana thorough. Additional discussion of our boilers under section 182(e)(3) of the will have met for BR the requirement to review and evaluations is available in CAA. This is an extreme area adopt RACT rules for sources addressed the TSD. requirement and therefore does not in any newly issued CTGs. In today’s proposal, we are proposing apply to the BRNA severe area. Second, we are proposing in this that if we take final action to approve 40 CFR 51.905 (8) Transportation action to approve the RACT the CTG Rules Update, and determine in Control Measures (TCMs) during heavy demonstration submitted by LDEQ on this final rule that the existing SIP- traffic hours as provided under section August 20, 2010, and a supplement on approved rules remain RACT, then 182(e)(4) of the CAA. This is an extreme May 16, 2011, which provides an Louisiana’s SIP would meet the NOX area requirement and therefore does not analysis demonstrating how the BR area and VOC RACT requirements for 8-hour apply to the BRNA severe area. meets RACT requirements for all other ozone standard for all CTG categories 40 CFR 51.905 (9) Enhanced CTG and non-CTG sources through the and for major sources of NOX and VOCs. (ambient) monitoring under section currently SIP-approved RACT rules. We are also proposing that based on our 182(c)(1) of the CAA. EPA approved a EPA reviewed and evaluated LDEQ’s July 5, 2011 approval (76 FR 38977) of Louisiana SIP revision for enhanced RACT determination for both NOX and the lower major-source threshold of 25 ambient monitoring on June 19, 1996 VOCs. This review and evaluation is tpy, that the state has met its (61 FR 31037) as meeting section provided in the RACT TSD which outstanding 1-hour RACT obligation for 182(c)(1) of the CAA. The monitoring accompanies this action. the BR area. Additional detail is network meets the requirements in 40 The State submittal included among provided in the TSD. CFR part 58 and section 182(c)(1) for other things, the following components: 40 CFR 51.905 (2). Inspection and enhanced monitoring. (a) A RACT demonstration including maintenance programs (I/M). The BRNA 40 CFR 51.905 (10) TCMs under adopted State rules, which have been is required to implement a vehicle section 182(c)(5) of the CAA. As federally approved, addressing RACT inspection and maintenance program in required by the Clean Air Act section requirements for CTG and ACT source the five-parish area. EPA approved this 176(c) (42 U.S.C. 7506(c)), the Louisiana categories. See the RACT TSD for more program on September 26, 2002 (67 FR Department of Environmental Quality information. 60594) and a revision to the program on demonstrated conformity of area (b) An analysis of RACT for all major November 13, 2006 (71 FR 66113). transportation plans to the motor sources not covered by a CTG or ACT 40 CFR 51.905 (4). Rate of progress vehicle emissions budgets established in and how these are controlled to meet reductions. We approved the post-1996 the BRNA Attainment Demonstration RACT. This information was provided ROP Plan and its associated MVEB and approved by EPA on October 2, 2002 (67 in the August 2010 submittal, and also a revised 1990 base year emissions FR 61786). in an Addendum to Appendix F dated inventory on August 2, 1999 (64 FR 40 CFR 51.905 (11) Vehicle miles May 16, 2011. 35930) for the BRNA serious 1-hour traveled (VMT) provisions of section

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182(d)(1) of the CAA. EPA approved the that an approved NSR program is not an commenters submitted 13 sets of VMT Offset Analysis on November 21, applicable requirement for purposes of comments in support of EPA’s proposal. 2006 (71 FR 67308). redesignation, where it is not required On June 23, 2011, EPA signed a final 40 CFR 51.905 (13) Attainment for maintenance, as is the case here. See rulemaking that terminated the 1-hour demonstration or alternative as the more detailed explanations of this anti-backsliding section 185 provided under section 51.905(a)(1)(ii). issue in the following rulemakings: requirements for the Baton Rouge area. Louisiana elected the option to submit Detroit, Michigan (60 FR 12467–12468 Subsequently, on July 1, 2011, the DC an 8-hour ozone attainment (March 7, 1995); Cleveland-Akron- Circuit issued a ruling in Natural demonstration SIP to demonstrate Lorain, Ohio (61 FR 20458, 20469– Resources Defense Council v. EPA, No. attainment of the 1997 8-hour ozone 20470, May 7, 1996); Louisville, 10–1056 (D.C. Cir), vacating the standard by the area’s 8-hour ozone Kentucky (66 Fr 53665, 53669, October guidance document. The Court’s attainment date with associated MVEBs 23, 2001); Grand Rapids, Michigan (61 opinion, however, did not address the and an RACM analysis. The SIP was FR 31831, 31836–31837, June 21, rationale or circumstances pertaining to submitted to EPA on August 31, 2010. 1996).6 the termination of the 1-hour anti- EPA has not acted on it. As discussed Section 185 fees. On July 7, 2011 (76 backsliding 185 requirements for any previously, EPA’s long-held position is FR 39755), EPA finalized approval of a area including the Baton Rouge area. In that an attainment demonstration with determination to terminate the CAA the case of Baton Rouge, EPA, after the RACM analysis is not an applicable section 1-hour ozone 185 penalty fees providing for notice and comment on its requirement for purposes of evaluating program requirement for the BRNA. proposed rationale and how it applies to an ozone redesignation request where EPA’s rulemaking cited a January 5, the facts of Baton Rouge, determined the area is attaining the standard. 2010 guidance document regarding that the area has attained the 1-hour (General Preamble, 57 FR 13564). See section 185, but the rulemaking ozone standard, and that this attainment also 40 CFR 51.918. Upon redesignation, proposal also set forth separately in is due to permanent and enforceable the obligation is terminated. Moreover detail EPA’s proposed rationale for emissions reductions. In its proposed EPA has determined that the area has terminating 1-hour ozone anti- rulemaking, EPA explained how and attained the 1-hour and 1997 8-hour backsliding 185 requirements when EPA why these findings justify termination ozone standards, and thus the area’s determines that an area has attained the of the section 185 requirements for obligation to submit either attainment 1-hour standard and when that Baton Rouge. See 76 FR 17368. EPA demonstration has been suspended. See attainment is due to permanent and believes that the procedure and Our Clean Data Determinations at 75 FR enforceable requirements. 76 FR 17368 substance of the Baton Rouge 6570 and 75 FR 54778. Upon our final (March 29, 2011). EPA proposed and rulemaking are outside the scope of the approval of the redesignation request explained both its interpretation of the agency action of which the Court the requirement to have an approved 1- termination requirements, derived from disapproved in its July 1 ruling, and that hour and 8-hour attainment statutory criteria for redesignation, and therefore the Baton Rouge termination demonstration will be terminated. the application of this interpretation to determination survives and withstands (ii) South Coast Anti-Backsliding the specific circumstances of the Baton the Court’s ruling regarding EPA’s Measures Rouge area. EPA explained that the guidance. Baton Rouge area met the core In its Baton Rouge proposal, EPA NSR. EPA has also determined that redesignation requirements that would proposed its interpretation of the areas being redesignated need not have been applicable were EPA still statutory requirements. EPA stated its comply with the requirement that a NSR redesignating areas for the 1-hour belief that a state could meet its 185 1- program be approved prior to standard—a process EPA discontinued hour anti-backsliding obligations redesignation, provided that the area six years ago because it was unnecessary through a SIP revision containing either demonstrates maintenance of the and not consistent with revocation of the fee program prescribed in section standard without a part D NSR program the 1-hour standard. 185, or an equivalent alternative in effect, since PSD requirements will program. It stated: ‘‘EPA believes that an EPA published notice of its proposed apply after redesignation. The rationale alternative program may be acceptable if termination and EPA’s underlying for this view is described in a it is consistent with the principles of rationale in the Federal Register, and memorandum from Mary Nichols, section 172(e) of the CAA, which allows established a 30-day period for public Assistant Administrator for Air and EPA through rulemaking to accept comments to be submitted. No adverse Radiation dated October 14, 1994, titled, alternative programs that are ‘‘not less comments were received; however, ‘‘Part D New Source Review stringent’’ where EPA has revised the Requirements for Areas Requesting NAAQS to make it less stringent. EPA 6 Redesignation to Attainment.’’ The The interpretation that NNSR does not apply to explained that in its Phase 1 ozone State’s PSD program becomes effective areas designated attainment for a NAAQS and thus is not needed in the SIP for such an area is implementation rule for the 1997 ozone in the area immediately upon consistent with Greenbaum v. EPA, 370 F.3rd 527, NAAQS (69 FR 23951 April 30, 2004), redesignation to attainment. 5 Louisiana at 536 (‘‘It would make little sense for [NSR] to be EPA determined that although section has demonstrated that BRNA will be included in the post-attainment SIP, as the Clean 172(e) does not directly apply where able to maintain the standard without a Air Act * * * explicitly states that attainment area SIPs must include a PSD program.’’). As the DC EPA has strengthened the NAAQS, as it part D NSR program in effect, and Circuit held in Alabama Power, 636 F.3d 323, at did in 1997, it was reasonable to apply therefore, Louisiana need not have a 365 (D.C. Cir. 1979), the applicability of PSD is the same principle for the transition fully approved part D NSR program geographically limited by the language of CAA from the 1-hour NAAQS to the 1997 prior to approval of the redesignation section 165(a), which states that unless specified conditions are met, ‘‘[n]o major emitting facility 8-hour NAAQS. 76 FR 17369–70. As request. Consequently, EPA concludes * * * may be constructed in any area to which this part of applying the principle in section part [Part C] applies’’ (emphasis added). Thus, with 172(e) for purposes of the transition 5 If the State believes that a rule change is respect to ozone, EPA’s interpretation is that areas from the 1-hour standard to the 1997 required, it must adopt and submit it to EPA for designated attainment for the 1997 8-hour standard approval as a SIP revision. Upon EPA’s approval of are subject to section 165(a), not the 172(c)(5) SIP 8-hour standard, EPA went on to state the SIP revision submittal, PSD applies in the area. requirement. that it would

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’’consider alternative programs to satisfy the under CAA section 107(d)(3). We believe We therefore believe that, for the section 185 fee program SIP revision these criteria provide reasonable assurance purpose here of evaluating applicable requirement. States choosing to adopt an that the purpose of the 1-hour anti- requirements pertaining to alternative program to the section 185 fee backsliding fee program obligation has been program must demonstrate that the fulfilled in the context of a regulatory regime redesignation, Louisiana’s obligation to alternative program is no less stringent than where the area remains subject to other satisfy the 1-hour ozone anti-backsliding the otherwise applicable section 185 fee applicable 1-hour anti-backsliding and 8- requirement for section 185 fees has program and EPA must approve such hour measures.’’ 76 FR 17370. been terminated. demonstration after notice and comment rulemaking.’’ In the proposed rulemaking, EPA Contingency Measures. Sections referred to the January 5, 2010 guidance 172(c)(9) and 182(c)(9) of the CAA In the Baton Rouge proposed as ‘‘expressing [EPA’s] views’’ as to require ozone plans for nonattainment rulemaking, EPA proposed that if it ‘‘potential rationales’’ (76 FR 17371, areas to contain measures to be determined that the area is attaining the emphasis added) for terminating 1-hour implemented in the event that any RFP 1-hour ozone NAAQS, based on ozone section 185 requirements. With or attainment deadline is missed. As permanent and enforceable emissions respect to the 1-hour section 185 anti- explained in a March 26, 2009 (74 FR reductions, the area’s existing SIP could backsliding requirements for Baton 13166) proposal, it is EPA’s position be considered an adequate alternative Rouge, however, EPA stated that its that contingency measures are not an program. EPA explained that under proposed rulemaking notice for that area applicable requirement for purposes of these circumstances, the Baton Rouge ‘‘formally sets forth EPA’s legal area’s existing SIP measures, in evaluating an ozone redesignation interpretation concerning the basis for request when an area is attaining the conjunction with other enforceable terminating those obligations’’, thereby Federal measures, would be adequate to relevant standard. EPA’s long-held making the specific rationale for Baton position is that those requirements achieve attainment, which is the Rouge subject to notice and comment purpose of the section 185 program. expressly linked by statutory language rulemaking. EPA then discussed at with the attainment and reasonable EPA stated that ‘‘the section 185 fee length the facts supporting its proposed program is an element of an area’s further progress do not apply when an finding that the Baton Rouge area had area requesting redesignation is attainment demonstration, and its object continuously attained the 1-hour ozone is to bring about attainment after a attaining the standard. Pursuant to standard during the 2006–2008 time EPA’s determination that the BRNA failure of an area to attain by its period, and that the state had shown attainment date. Thus, areas that have attained the 1-hour ozone standard that this attainment is due to permanent (February 10, 2010, 75 FR 13166), the attained the 1-hour ozone standard, the and enforceable emissions limitations, requirement to submit the 1-hour standard for which the fee program was thereby supporting the conclusion that contingency measures was suspended. originally required, as a result of the State SIP had supplied an adequate This obligation will be terminated upon permanent and enforceable emission alternative program under the specific a final approval of the redesignation reductions, would have a SIP that is not circumstances presented. 76 FR 17371– request. less stringent than the SIP required 72. under section 185.’’ 76 FR 17370. The Court’s opinion does not For more detail regarding the EPA further explained its position: preclude EPA from terminating the 1- applicable 1-hour ozone requirements ‘‘We believe that it is reasonable for the fee hour section 185 anti-backsliding and EPA’s approval actions, see the program obligation that applies for purposes requirement for areas like Baton Rouge, Technical Support Document (TSD), of anti-backsliding to cease upon a that EPA has determined through notice which is included in the electronic determination, based on notice-and-comment rulemaking, that an area has attained the 1- and comment rulemaking, have attained docket. Listed below are the severe hour ozone standard due to permanent and the 1-hour ozone standard due to ozone 1-hour area requirements that enforceable measures. This determination permanent and enforceable emissions have already been met by the BR area centers on the core criteria for redesignations reductions. for the purposes of this redesignation.

Requirement Clean Air Act as amended in 1990 section EPA Approval/other justification

182(a)(2)(A) RACT corrections ...... August 26, 1996 (61 FR 38590). 182(a)(2)(B) I/M Program ...... Required under section 182(c)(3). August 20, 1999 (64 FR 45454). 182(a)(2)(C) Permit programs and 182(a)(4) General Off- EPA has determined that areas being redesignated need not comply with the re- set requirement. quirement that a NSR program be approved prior to redesignation, provided that the area demonstrates maintenance of the standard without a part D NSR program in effect, since PSD requirements will apply after redesignation. 182(a)(3)(B) Emissions Statements ...... February 6, 1995 (60 FR 02014). 182(b)(1) Plan Provisions for Reasonable Further This is covered by the requirement in 182(c)(2). Progress. 182(b)(2) Reasonably Available Control Technology ...... May 5, 1994 (59 FR 23164). August 26, 1996 (61 FR 38590). December 31, 1996 (61 FR 55894). February 2, 1998 (62 FR 63658). November 8, 1998 (63 FR 47429). 182(b)(3) Gasoline Vapor Recovery ...... March 25, 1994 (59 FR 14112). 182(b)(4) Motor Vehicle Inspection and Maintenance ...... Required under section 182(c)(3). August 20, 1999 (64 FR 45454). 182(c)(1) Enhanced Monitoring ...... June 19, 1996 (61 FR 31035). 182(c)(2) Attainment and Reasonable Further Progress December 23, 1996 (61 FR 54737). Demonstrations. August 2, 1999 (64 FR 35930).

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Requirement Clean Air Act as amended in 1990 section EPA Approval/other justification

182(c)(3) Enhanced Vehicle Inspection and Maintenance August 20, 1999 (64 FR 45454). Program. 182(c)(4) Clean-Fuel Vehicle Programs ...... Clean Fuel Fleet Substitute Program, July 19, 1999. 182(c)(5)Transportation Control ...... October 2, 2002 (67 FR 61786). 182(c)(6) De Minimis Rule ...... This requirement is related to the NSR program that is not an applicable requirement for redesignation. 182(c)(7) Special Rule for Modifications of Sources Emit- This requirement is related to the NSR program that is not an applicable requirement ting Less Than 100 Tons. for redesignation. 182(c)(8) Special Rule for Modifications of Sources Emit- This requirement is related to the NSR program that is not an applicable requirement ting 100 Tons or More. for redesignation. 182(c)(9) Contingency Provisions ...... September 26, 2002 (67 FR 60590). This requirement was suspended pursuant to the 1-hour determination of attainment. February 10, 2010 ( 75 FR 6570). 182(c)(10) General Offset Requirement ...... September 30, 2002 (67 FR 61260). 182(d)(1) Vehicle Miles Traveled ...... November 21, 2006 (71 FR 67308). 182(d)(2)Offset Requirement ...... This requirement is related to the NSR program that is not an applicable requirement for redesignation. 182(d)(3) Enforcement Under Section 185 ...... July 7, 2011 (76 FR 39775).

(iii) Part D SIP Requirements Under (U.S.C.) and the Federal Transit Act a fully approved part D NSR program 1997 8-Hour Standard: Part D, Subpart (transportation conformity) as well as to prior to approval of the redesignation 2 Applicable SIP Requirements all other Federally supported or funded request. Louisiana’s PSD program will The only moderate area requirements projects (general conformity). State become effective in BRNA upon applicable for purposes of redesignation conformity revisions must be consistent redesignation to attainment (unless a for the 1997 8-hour ozone standard with Federal conformity regulations rule change is necessary; see footnote 4). under part D, section 182(b) that became relating to consultation, enforcement See rulemakings for Detroit, Michigan due prior to the submission of the and enforceability that the CAA (60 FR 12467–12468, March 7, 1995); complete redesignation request are the required the EPA to promulgate. Cleveland-Akron-Lorrain, Ohio (61 FR control techniques guidelines (CTGs) to EPA believes it is reasonable to 20458, 20469–70, May 7, 1996); meet requirements for RACT under interpret the conformity SIP Louisville, Kentucky (66 FR 53665, section 182(b)(2). The State submitted requirements as not applying for October 23, 2001); Grand Rapids, several SIP revisions addressing the purposes of evaluating the redesignation Michigan (61 FR 31834–31837, June 21, CTG rules requirements, and provided a request under section 107(d) because 1996). state conformity rules are still required SIP revision addressing NOX and VOC (vi) Section 182(a)(1) Inventory after redesignation and Federal RACT requirements in BR on August 31, Requirements 2010. The CTG Rules Update was conformity rules apply where state rules proposed for approval in a separate have not been approved. See Wall v. The moderate area requirements at rulemaking published in the Federal EPA, 265 F.3d 426 (6th Cir. 2001) section 182(a) and 40 CFR 51.915 Register on March 17, 2011 (76 FR (upholding this interpretation). See also require that the BR 1997 8-hour ozone 14602). If EPA finalizes its proposed 60 FR 62748 (December 7, 1995, Tampa, area meet the emissions inventory approval of the CTG Rules Update Florida). requirements of section 182(a)(1). An emissions inventory is an estimation of together with the NOx and VOC RACT (v) NSR Requirements requirements which are addressed in actual emissions of air pollutants in an today’s action, the area will have met all As with the nonattainment NSR area. The emissions inventory consists the requirements applicable under its requirements for the 1-hour ozone of VOC and NOX emissions, as they are prior severe 1-hour classification and standard, EPA has determined that areas ozone precursors. EPA approved a base current moderate 1997 8-hour being redesignated need not have an year inventory for 2002 on September 3, classification for purposes of approved 1997 8-hour nonattainment 2009 (74 FR 45561) under 182(b) for redesignation of the 1997 8-hour ozone NSR program prior to redesignation, moderate areas. A more detailed standard. Additional information about provided that the area demonstrates discussion of the emission inventory for the CTG Rules Update and RACT maintenance of the standard without a the BRNA can be found in the analysis Update requirements is provided in the part D NSR program in effect, since PSD of the maintenance plan for this discussion above, as well as in the TSD. requirements will apply after redesignation below. redesignation. The rationale for this (iv) Section 176 Conformity view is described in a memorandum 2. The BRNA Has a Fully Approved SIP Requirements from Mary Nichols, Assistant Under Section 110(k) of the CAA Section 176(c) of the CAA requires Administrator for Air and Radiation, EPA proposes to find that the area has states to establish criteria and dated October 14, 1994, entitled ‘‘Part D an approved SIP for all the 1997 8-hour procedures to ensure that Federally New Source Review (Part D NSR) ozone requirements applicable for supported or funded projects conform to Requirements for Areas Requesting purposes of redesignation. This the air quality planning goals in the Redesignation to Attainment.’’ proposal is contingent on our final applicable SIP. The requirement to Louisiana demonstrated in the approval of the NOX and VOC RACT determine conformity applies to accompanying maintenance plan that analyses and provisions that are transportation plans, programs and BR will be able to maintain the standard addressed in today’s action and in the projects developed, funded or approved without a part D NSR program in effect, CTG Rules Update. EPA is proposing to under title 23 of the United States Code and therefore, Louisiana need not have find that, upon EPA’s final approval of

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the BR emissions inventory, the VOC redesignation. As set forth above, with TABLE 3—SUMMARY OF TOTAL and NOX RACT analysis, and the CTG the exceptions noted, the area has met EMISSION REDUCTIONS Rules Update, the BR area will meet all all other applicable requirements for

requirements applicable to the area for purposes of redesignation for the 1997 NOX VOC purposes of redesignation for the 1997 8-hour ozone standard. TPD TPD 8-hour ozone standard under section 110 and part D and have a fully C. Are the air quality improvements in Base Year (2002) In- approved applicable implementation the BR nonattainment area due to ventory ...... 200.3 211.0 2008 Emissions ...... 143.8 101.3 plan for the area under section 110(k). permanent and enforceable emission As noted earlier, implementation of RFG reductions resulting from the Emissions of both VOC and NO have is not required for purposes of implementation of State and Federal X redesignation. regulations and other permanent and been reduced during the time period EPA may rely on prior SIP approvals enforceable emission reductions? leading up to December 31, 2008, the in approving a redesignation request; date when Baton Rouge reached EPA proposes to find that Louisiana see Calcagni Memorandum at p. 3; attainment for the 1-hour standard. has demonstrated that the observed Southwestern Pennsylvania Growth The State also analyzed the changes ozone air quality improvement in the Alliance v. Browner, 144 F.3d 984, 989– in VOC and NOX emissions in the BR BR area is due to permanent and 90 (6th Cir. 1998); Wall, 265 F.3d 426, area between the original base year of enforceable reductions in emissions plus any additional measures it may 2002 and the year 2006 during which resulting from implementation of approve in conjunction with a the area attained the standard. The 2006 emissions controls contained in the SIP, redesignation action. See 68 FR 25426 inventory was generated from the (May 12, 2003) and citations therein. Federal control measures, and other approved 2002 base year inventory Following passage of the CAA of 1970, State-adopted control measures. (September 3, 2009, 74 FR 45561). The Louisiana adopted and submitted, and 1. Emissions Reductions as Shown by 2002 and 2006 emissions for the BRNA EPA fully approved at various times, Emissions Inventory Data area were determined using EPA provisions addressing the various accepted methods and guidance.7 The 1-hour ozone standard SIP elements EPA believes that the improvement in State documented the VOC and NOX applicable in the BR area as discussed air quality in the Baton Rouge area emission control measures that have above. during the 2002–2008 timeframe, which been implemented in the BR area for at As indicated, EPA believes that the resulted in attainment of both the 1- least the past 3 years. Comparing the section 110 elements not connected hour and 1997 8-hour ozone standards, 2002 and 2006 NOX and VOC emissions with nonattainment plan submissions is due to emissions reductions from to the projected future year emissions, a and not linked to the area’s permanent and enforceable measures. downward trend is observed. Broken nonattainment status are not applicable Table 3 shows the changes in emissions out by source category, the reduction in requirements for purposes of for NOX and VOC’s from 2002 to 2008. emissions is shown in Table 4.

TABLE 4—A COMPARISON OF VOC AND NOX EMISSIONS IN THE BRNA AREA BY SOURCE CATEGORY FROM THE YEAR 2002 AND THE YEAR 2006 [Tons per average ozone season day]

VOC Emissions NOX Emissions (tpd) (tpd) Source category Percent Percent 2002 2006 change 2002 2006 change

Point ...... 40.17 33.10 ¥17 .6 117.91 73.40 ¥37.75 Area ...... 29.71 31.59 +5 .95 3.90 4.06 +4.10 Non-Road Mobile ...... 22.97 13.60 ¥22 .38 43.59 36.75 ¥15.69 On-Road Mobile ...... 14.99 17.60 +16 .75 34.01 29.30 ¥13.85

Total ...... 107.84 95.89 ¥11 .08 199.41 143.50 ¥28.04

2. Impact of Emissions Controls 3. Permanent and Enforceable Emissions rules. The following is a discussion of Implementation: Trend Analysis Controls Implemented the permanent and enforceable emission The State provided design value data The Baton Rouge nonattainment area controls that have been implemented in the BR area. In Louisiana’s 8-hour ozone from 1997 through 2008 to illustrate the control strategy is primarily NOX- downward trend in ozone since 2005. driven, therefore no major VOC rules redesignation request, the State (See Chart 1 on page 9 of the state’s have been adopted other than those documented all of the emission control submittal.) In addition, it provided a required to meet updated CTGs as rules or programs that have impacted table of design values by monitor for the required by the Act. LDEQ attributes the VOC or NOX emissions during the 2006–2008 monitoring period that also reductions in emissions primarily to the period 1990–2008. shows the general downward trend in stationary source NOX control measures emissions during that time period. implemented no later than May 1, 2005, (Table 1, Ibid.) which were required by the State’s

7 EPA. 2007. Guidance on the Use of Models and Haze. Prepared by the U.S. Environmental Quality Modeling Group, Research Triangle Park, Other Analyses for Demonstrating Attainment of Protection Agency, Office of Air Quality Planning NC (EPA–454/B–07–002, April 2007). Air Quality Goals for Ozone PM2.5, and Regional and Standards, Air Quality Analysis Division, Air

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a. Reasonably Available Control approved by the EPA as revisions of the NOX control measures for stationary Techniques Louisiana SIP. sources which were adopted by the state Louisiana notes that a number of VOC b. ROP Plans and Attainment effective on February 20, 2002, and approved by EPA on September 27, and NOX RACT rules which were Demonstration Plan developed in prior years have continued 2002 (67 FR 60877), and adopted by the EPA approved a serious area state on August 20, 2003 and approved to provide additional VOC and NOX attainment plan and ROP plans as noted by EPA on July 5, 2011 (76 FR 38977). emission reductions during more recent above under the 1-hour ozone standard These rules were implemented between years. For VOC controls, with the requirements for serious areas. October exception of the source categories 22, 1996 (61 FR 54737) and July 2, 1999 February 20, 2002, and May 1, 2005. covered by the most recently published (64 FR 35930). Measures in these plans The rules established emission factors CTGs (see a discussion of the new CTG include Stage II Vapor Recovery, marine (standards) for NOX sources within the RACT rules below), Louisiana has vapor recovery, tank vent recovery, BRNA. These revisions achieved adopted and implemented VOC RACT emission reductions from vents to flares, approximately 40 TPD of additional rules for source categories covered by tank fitting controls, fugitive emission NOX reductions in the BRNA beginning older (prior to 2006) CTGs and for major controls, secondary roof seals on tanks, with the compliance date of May 1 2005 non-CTG sources in the five-parish as well as some federally required and continuing to date. These rules are BRNA. All VOC RACT rules are controls pursuant to NESHAPs and still part of the state’s rules and are contained in Chapter 21 of Louisiana NSPS. All these measures continue to enforceable at the state and Federal Administrative Code (LAC 33:III produce reductions today. level. The specific standards are listed Chapter 21), and all NOX RACT rules are contained in Chapter 22 of the LAC c. NOX Control Rules below. (LAC 33:III Chapter 22). All of these NOX emission reductions were VOC and NOX RACT rules have been achieved through the implementation of

NOX Reduction measures 2002–2008 NOX Standard

Electric Power Generating System Boilers: Coal-fired > 40 to < 80 MMBtu/hr ...... 0.50 lb/MMBtu. Coal-fired > 80 MMBtu/hr ...... 0.21 lb/MMBtu. No. 6 fuel oil-fired > 40 to < 80 MMBtu/hr ...... 0.30 lb/MMBtu. No. 6 fuel oil-fired > 80 MMBtu/hr ...... 0.18 lb/MMBtu. All others (gaseous or liquid) > 40 to < 80 MMBtu/hr ...... 0.20 lb/MMBtu. All others (gaseous or liquid) > 80 MMBtu/hr ...... 0.10 lb/MMBtu. Industrial Boilers > 40 to < 80 MMBtu/hr ...... 0.20 lb/MMBtu. Industrial Boilers > 80 MMBtu/hr ...... 0.10 lb/MMBtu. Process Heater/Furnaces: Ammonia reformers > 40 to < 80 MMBtu/hr ...... 0.30 lb/MMBtu. Ammonia reformers > 80 MMBtu/hr ...... 0.23 lb/MMBtu. All others > 40 to < 80 MMBtu/hr ...... 0.18 lb/MMBtu. All others > 80 MMBtu/hr ...... 0.08 lb/MMBtu. Stationary Gas Turbines: Peaking Service, Fuel Oil-fired > 5 to < 10 MW ...... 0.37 lb/MMBtu. Peaking Service, Fuel Oil-fired > 10 MW ...... 0.30 lb/MMBtu. Peaking Service, Gas-fired > 5 to < 10 MW ...... 0.27 lb/MMBtu. Peaking Service, Gas-fired > 10 MW ...... 0.20 lb/MMBtu. All Others > 5 to < 10 MW ...... 0.24 lb/MMBtu. All Others > 10 MW ...... 0.16 lb/MMBtu. Stationary Internal Combustion Engines: Lean-burn engines > 150 to < 320 Hp ...... 10 g/Hp-hr. Lean-burn engines > 320 Hp ...... 4 g/Hp-hr. Rich-burn engines > 150 to < 300 Hp ...... 2 g/Hp-hr. Rich-burn engines > 300 Hp ...... 2g/Hp-hr.

The bulk of the NOX emissions 2002. (62 FR 63658, February 2, 1998; TABLE 5—BR FEDERAL EMISSION between 2002 and 2006 came from the 63 FR 47429, November 8, 1998). REDUCTIONS PROGRAMS source categories listed in the table d. Federal Emission Control Measures above. In 2006, stationary (point) Federal Measures: sources made up over 51 percent of the LDEQ notes that on-road Federal Æ Tier 2 Fuel and Vehicle Emission Stand- entire NOX inventory for the BRNA, emission control measures have had ards Æ Onboard Refueling Vapor Recovery which is a decrease from over 59 positive impacts on VOC and NOX percent in 2002. In addition, Louisiana (ORVR) for light-duty vehicles emissions in the BR area for reaching Æ adopted and implemented emission Heavy-Duty Engine and Vehicle and attainment. Table 5 shows the Federal Fuel Standards control rules requiring existing sources emissions reductions programs in the Æ Federal controls on certain nonroad en- of VOC to meet, at minimum, RACT. BR area for fuels and motor vehicles: gines These requirements apply to sources in Æ Federal control through Maximum categories covered by CTGs and other Achievable Control Technology (MACT) major non-CTG sources. These rules of Hazardous Air Pollutants emissions were adopted and implemented prior to Æ Volatile Organic Compound Emission Standards for Consumer Products

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TABLE 5—BR FEDERAL EMISSION maintenance plan must provide for Louisiana developed its 2006 REDUCTIONS PROGRAMS—Continued maintenance of the ozone standard for Emissions Inventory from the an additional 10 years beyond the initial previously approved 2002 baseline Æ Volatile Organic Compound Emission 10 year maintenance period. To address inventory (September 3, 2009, 74 FR Standards for Architectural Coatings Æ the possibility of future NAAQS 45561). The State relied on this 2006 Locomotives and Marine Compression- violations, the maintenance plan must inventory in preparing the attainment Ignition Engines contain such contingency measures as demonstration modeling that is EPA deems necessary to assure prompt included in Appendix D of the State’s Summary correction of any future NAAQS submittal. The above discussion shows that violation. The September 4, 1992, The 2006 and projected year state, local and Federal emission Calcagni memorandum provides emissions for the BRNA 5-parish area controls have contributed to the ozone additional guidance on the content of were determined using the following air quality improvement in the BR area maintenance plans. procedures: that resulted in attainment of the 1997 An ozone maintenance plan should, Point Source Emissions. Point source 8-hour ozone standard. Emissions at minimum, address the following: (1) VOC and NOX emissions for 2006 were

inventory data demonstrates that NOX The attainment VOC and NOX emission calculated using methodologies and VOC emissions have dropped inventories; (2) a maintenance according to Federal guidelines and substantially between 2002 and 2008 for demonstration showing maintenance for using AP–42 or other approved stationary sources primarily but also for the 10 years of the maintenance period; methods. The State collected emissions mobile sources. These substantial (3) a commitment to maintain the data, which are estimates of actual decreases in ozone precursors can be existing monitoring network; (4) factors emissions, provided by the facilities. A directly attributed to State and Federal and procedures to be used for list of those facilities is provided in measures. As noted above, Louisiana verification of continued attainment; Appendix C of the LDEQ submittal. has committed to retaining in the SIP all and, (5) contingency measures to correct Area Source Emissions. Area source existing emission control measures that a future violation of the NAAQS. emissions from the 2002 National affect ozone levels in the BR area after Emission Inventory (NEI) were used as the BRNA is redesignated to attainment 2. What is the attainment inventory for the starting point for the 2006 Louisiana of the 1997 eight-hour ozone NAAQS. the BRNA? area emissions. Projection years’ All changes in existing rules Sections 182(a)(1) of the CAA requires emissions were initially grown using the subsequently determined to be that the SIP include a comprehensive, EPA’s Economic Growth Analysis necessary must be submitted to the EPA accurate and current inventory of actual System (EGAS) version 5.0 growth for approval as SIP revisions. emissions from sources of relevant factors. The methodologies used to EPA thus proposes to find that the pollutants in the nonattainment area. improvement in air quality in the BR develop area sources inventory are The emission inventory for an ozone described in Appendix D of the area is due to permanent and nonattainment area contains both VOC enforceable emissions reductions. submittal. and NOX emissions, which are Section 107(d)(3)(E)(iii). On-road Emissions. Mobile source precursors to ozone formation. LDEQ emissions were calculated based on D. Does the BRNA have a fully prepared a comprehensive emission Parish-specific inputs provided by approvable maintenance plan pursuant inventory for the BR area including several state agencies. MOBILE6 was to section 175A of the CAA? point, area, on-road, and off-road mobile then used to generate emission factors. sources for the year 2006. Table 6 lists In conjunction with its request to A detailed description of on-road the 2006 emissions inventory for the BR redesignate the BR 1997 8-hour ozone emission estimates is found in area. EPA reviewed the 2006 inventory nonattainment area, the State of Appendix D of the LDEQ submittal. and determined that it was developed in Louisiana included a SIP revision to Non-road Emissions. For all non-road accordance with EPA guidelines8. For a provide for the maintenance of the 1997 mobile categories except aircraft, full discussion of our evaluation, please 8-hour ozone NAAQS in the BR area for locomotives, and commercial marine refer to Part II of the TSD, found in the at least 10 years after redesignation to vessels, the emissions were calculated electronic docket. attainment. Section 107(d)(3)(E)(iv). As using the EPA’s National Mobil discussed below, EPA has reviewed this Inventory Model (NMIM) to generate TABLE 6—BR 2006 EMISSION maintenance plan and is proposing to Louisiana state-wide parish level approve it as meeting the requirements INVENTORY emissions estimates. Airport and of section 175A of the CAA. locomotive emissions were derived from Source type NOX VOC 2006 LDEQ inventory. Marine emissions 1. What is required in an ozone 2006 Inventory (Tons/Day) were developed from CENRAP maintenance plan? inventories. A detailed description of Section 175A of the CAA sets forth Point ...... 73.4 33.1 non-road emission estimates is found in the required elements of air quality Nonpoint ...... 4 .06 31 .59 Appendix D of the submittal. maintenance plans for areas seeking On-road Mobile ...... 29 .3 17 .60 redesignation to attainment of a Non-road Mobile ...... 36 .75 13 .59 3. Has the state of Louisiana committed NAAQS. Under section 175A, a to maintain the ozone monitoring maintenance plan must demonstrate Total ...... 143.51 95 .88 system in the BRNA? continued attainment of the applicable The State of Louisiana has committed NAAQS for at least 10 years after the 8 Emission Inventory Improvement Program to continue operation of an EPA- Administrator approves the (EIIP), EPA–454/R–97–004a–g, http://www.epa.gov/ approved ozone monitoring network redesignation to attainment. The State ttn/chief/eiip/techreport/; AP–42, http:// and to work with EPA pursuant to 40 must commit to submit a revised www.epa.gov/ttn/chief/ap42/index.html; Air Emissions Reporting Requirements (AERR Rule), CFR part 58 with regard to the maintenance plan within eight years http://www.epa.gov/ttn/chief/aerr/ continued adequacy of the network, after the redesignation. This revised final_published_aerr.pdf including whether additional

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monitoring is needed, and when a 107(d)(3)(E)(iv). To demonstrate approved technologies and monitor site can be discontinued. maintenance of the 1997 8-hour ozone methodologies. Point source and non-

4. Has the state demonstrated standard, LDEQ projected VOC and NOX point source projections were derived maintenance in the BRNA? emissions to 2022 and to several interim from the Emissions Growth Analysis years, 2012, 2016, and 2020. These System version 6.0 (EGAS 6.0). Non- As part of its request to redesignate emissions were compared to the 2008 road mobile projections were derived the BR 1997 8-hour ozone standard attainment year and 2006 base year from EGAS 6.0, and from NONROAD nonattainment area, the State of emissions (both years in the 2006–2008 2005. Louisiana included a SIP revision to attainment period) to show that To demonstrate declines in future incorporate a maintenance plan as emissions of NO and VOC, remain required under section 175A and X emissions, LDEQ provided a below the attainment levels for the section 107(d)(3)(E)(iv) of the CAA. The comparison between the 2006 inventory entire demonstrated maintenance maintenance plan includes a and the emission growth projections for period. demonstration based on a comparison of the years 2008, 2012, 2016, 2020, and emissions in one of the attainment years In projecting data for the maintenance 2022. Table 7 summarizes the 2006 and (2008) and projected emissions to year 2022 inventory, LDEQ used several 2008 attainment years, interim years demonstrate maintenance of the 1997 methods to project data from the base during the maintenance period, horizon 8-hour ozone NAAQS in the BR area for year 2006 to the years 2008, 2012, 2016, year 2022, the end year for the at least 10 years after the anticipated 2020, and 2022. These projected maintenance period, and net changes in redesignation year. CAA inventories were developed using EPA- VOC and NOX emissions by source type.

TABLE 7—SUMMARY OF FUTURE VOC AND NOX EMISSIONS FOR THE BRNA AREA [Tons per average ozone season day]

2006 2008 2012 2016 2020 2022 Net change Source category 2022–2006 VOC NOX VOC NOX VOC NOX VOC NOX VOC NOX VOC NOX VOC NOX

Point ...... 33.10 73.40 32.22 67.71 32.22 67.71 32.22 67.71 32.22 67.71 32.22 67.71 ¥0.88 ¥5.69 Nonpoint ...... 31.59 4.06 32.35 4.16 33.63 4.36 35.59 4.53 37.54 4.74 38.51 4.83 6 .92 0.78 Nonroad ...... 13.60 36.75 12.59 37.45 11.22 38.51 10.27 39.59 9.78 41.36 9.99 40.60 ¥3 .61 3.85 Onroad ...... 17.60 29.30 17.82 28.35 10.64 18.63 9.70 12.08 7.82 8.33 7.55 6.96 ¥10.1 ¥22.34

Total ...... 95.89 143.51 94.98 137.66 87.70 129.18 87.77 123.84 87.36 122.14 88.27 120.10 ¥7.67 ¥23.40

Federal rules implemented after EPA evaluated the BRNA was remanded back to EPA, and EPA on attainment of the 1997 8-hour ozone maintenance emission inventory July 6, 2011 issued the final Cross-State standard contribute to continued component of the redesignation request Air Pollution Rule 9 (CSAPR) to replace maintenance in the area. These and determined that LDEQ CAIR. EPA believes the reductions for measures include: demonstrated that emissions levels of Louisiana due to the CSAPR are similar Non-Road Diesel Rule. EPA VOC and NOX in the 2022 maintenance in magnitude to those projected by promulgated this rule in 2004. It applies year will decrease from the 2006 CAIR. Louisiana’s Ozone season NOX to diesel engines used in industries, baseline year by 7.67 and 23.40 tons per budget for CAIR was 17,085 tpy for such as construction, agriculture, and average ozone season day respectively. EGUs from 2009 to 2014 and lowered to mining. It is estimated that compliance Overall VOC and NOX emissions levels 14,238 tpy NOX for 2015 and later. The with this rule will cut NOX emissions will remain below the 2006–2008 CSAPR ozone season NOX limit is from non-road diesel engines by up to attainment year levels throughout the 13,432 tpy, which is 806 tpy less NOX 90 percent beginning with the 2008 maintenance period. EPA also than the CAIR budget. So with the Model Year equipment. This rule will determined that LDEQ has adequately reductions from the CSAPR, we believe be fully implemented in 2014. calculated and documented emissions that Louisiana’s maintenance demonstration 10 year projection Locomotives and Marine by using methods consistent with EPA’s remains valid. Compression-Ignition Engines. This EPA guidance. (See footnote 7). Pre-control modeling in support of the rule was adopted March 14, 2008, and As shown in the table and discussion CSAPR indicates that the Baton Rouge includes new emission standards for above, the State demonstrated that the area will not be in attainment of the locomotives and marine diesel engines total future year ozone precursor 1997 8 hour ozone standard in 2012 that will reduce NOX emissions by emissions will be less than the 2008 attainment year’s emissions. The because of impacts from upwind states. about 80 percent compared with engines For this reason, upwind States with a meeting the current standards. The new attainment inventory submitted by the LDEQ for this area is consistent with significant impact on the Baton Rouge requirements have three parts: area are required to reduce their NO Tightening emission standards for EPA guidance. (See footnote 7). X emissions. The CSAPR modeling existing locomotives and large marine Considering emissions projections, EPA indicates the Baton Rouge area will be engines when they are remanufactured, finds that the expected future emissions in attainment in 2014 after institution of effective in 2008; beginning in 2009, levels in 2012, 2016, 2020, and 2022 the CSAPR controls. The 2014 control phasing in Tier III standards for new have been shown to be lower than case modeling is projected off a center locomotives and marine diesel engines; emissions levels in 2006 and 2008. weighted average of design values and establishing more stringent Tier IV The NOX projections in Louisiana’s standards for new locomotives and maintenance demonstration relied in 9 The Cross State Air Pollution Rule was marine diesel engines; these standards part on reductions due to the Clean Air proposed August 2, 2010 as the ‘‘Transport Rule.’’ will be phased in beginning in 2014. Interstate rule (CAIR). CAIR, however, We refer to the rule as the CSAPR.

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during the period 2003–2007. 2006 using a nested 36/12/4 km grid include such contingency measures as Additional CSAPR modeling, however, system, with the 4-km grid focused on EPA deems necessary to assure that the projecting off a single year’s design Louisiana and the immediate Gulf coast state will promptly correct a violation of value for 2005 (years 2003–2005) area. The weight of evidence assembled the NAAQS that occurs after projects that the area will not be in from the modeling analyses and redesignation. The maintenance plan attainment in 2014. This variation in projection methodologies described in should identify the contingency model projections, depending on the the report demonstrated that the 1997 8- measures to be adopted, a schedule and projection year, is an indication the hour ozone standard would be attained procedure for adoption and Baton Rouge area could have some in the Baton Rouge area by 2009. The implementation of the contingency difficulty in maintaining attainment in area did indeed attain the standard by measures, and a time limit for action by years when meteorology particularly the close of the ozone season on the state. The State should also identify favors ozone production. The December 31, 2008. This modeling has specific indicators to be used to maintenance plan, however, indicates a refined grid focused on the Baton determine when the contingency that NOX emissions will continue to Rouge area, and thus it provides further measures need to be adopted and decrease over the life of the plan, support that the Baton Rouge area has implemented. The maintenance plan continuing to improve Baton Rouge’s attained due to permanent and must include a requirement that the ability to maintain attainment in the enforceable reductions and should state will implement all measures with future. In addition, section 175 requires remain in attainment during the term of respect to control of the pollutant(s) that that the area have contingency measures the maintenance plan. were contained in the SIP before that must be implemented, if due to EPA proposes to find that LDEQ has redesignation of the area to attainment. meteorological fluctuations, the area demonstrated maintenance of the ozone See section 175A(d) of the CAA. does come out of attainment. We standard in the BR area during the 10 As required by section 175A of the discuss the adequacy of these year maintenance period, based on CAA, Louisiana has adopted a contingency plan for the BR area to contingency measures elsewhere in the projections that total VOC and NOX notice. Therefore, after considering the emissions during this period will address possible future ozone air quality CSAPR modeling but also considering remain below the 2006 and 2008 problems. the projected decline in emissions and attainment levels emissions. The triggering mechanism for the fact that the maintenance plan has activation of contingency measures in contingency measures, we believe it is 5. What is the contingency plan for the the BR maintenance plan is a monitored appropriate to approve the maintenance BRNA? violation of the 1997 8-hour ozone plan for the Baton Rouge area. a. Verification of Continued Attainment standard. If contingency measures are The fact that EPA is proposing to triggered, LDEQ has committed to adopt redesignate Baton Rouge to attainment Louisiana has the legal authority to additional measures, if needed beyond does not remove the need to address enforce and implement the the adopted measures included in the emissions in upwind States that impact requirements of the ozone maintenance submittal, and to implement the ozone levels in Baton Rouge. As plan for the BR area. This includes the measures as expeditiously as discussed above, Baton Rouge is authority to adopt, implement, and practicable, but no later than 24 months projected to be nonattainment without enforce any subsequent emissions following the trigger. the CSAPR reductions. The reductions control contingency measures The following contingency measures in the CSAPR along with other State and determined to be necessary to correct are identified for possible Federal measures are projected to bring future ozone attainment problems. implementation, but may not be limited the area into attainment. Furthermore, Louisiana will track the progress of to: • without a cap on emissions in upwind the maintenance plan through Extending the applicability of the States with a significant impact, continued ambient ozone monitoring in State’s current NOX rule in LAC emissions might in fact grow, increasing accordance with the requirements of 40 33:III.2201 by adding a new Section, the possibility that Baton Rouge will not CFR part 58, and by performing future LAC 33:III.2202, that would extend LAC be able to maintain attainment. reviews of actual emissions for the area 33:III.2201’s application to include the Furthermore, since upwind States are using the latest emissions factors, months of April and October each year not required to have contingency models, and methodologies. The State (currently LAC 33:III.2201 applies from measures, it is incumbent on EPA to will work with EPA to ensure that the May 1 to September 30). This would ensure that States with significant air monitoring network continues to be assist in reducing incidences of high impacts are appropriately controlled. effective and will quality assure the data ozone days in the BRNA. See the TSD LDEQ also provided attainment according to Federal requirements as for AQ 350. Because the state has demonstration modeling in support of one way to verify continued attainment. adopted this rule and submitted it to its redesignation request. The In addition the State will compare EPA, we are proposing to approve this attainment demonstration modeling can emission inventory data submitted to rule revision in this rulemaking. In be found in Appendix D of the the National Emission Inventory with addition, the state will consider other Redesignation Request and Maintenance the emission growth data submitted in measures such as lowering the NOX Plan. The modeling demonstration was the maintenance plan to ensure emissions factors of LAC 33:III.2205.D conducted according to EPA guidance.10 emission reductions continue the and/or requiring more stringent The modeling simulation was for June downward trend. monitoring of elevated flares, as well as measures targeting the following: b. Contingency Plan • 10 EPA. 2007. Guidance on the Use of Models and Diesel retrofit/replacement Other Analyses for Demonstrating Attainment of The contingency plan provisions are initiatives; Air Quality Goals for Ozone PM2.5, and Regional designed to promptly correct or prevent • Programs or incentives to decrease Haze. Prepared by the U.S. Environmental a violation of the NAAQS that might motor vehicle use; Protection Agency, Office of Air Quality Planning • and Standards, Air Quality Analysis Division, Air occur after redesignation of an area to Implementation of fuel programs Quality Modeling Group, Research Triangle Park, attainment. Section 175A of the CAA including incentives for alternative NC (EPA–454/B–07–002, April 2007). requires that a maintenance plan fuels;

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• Employer-based transportation c. Controls to Remain In Effect demonstrates continued maintenance of management; Louisiana commits to maintain all of attainment of the 1997 8-hour ozone • Anti-idling ordinances; the current emission control measures NAAQS. • Programs to limit or restrict vehicle for VOC and NOX after the BR area is B. What is the status of EPA’s adequacy use in areas of high emission redesignated to attainment. Louisiana, determination? concentration during periods of peak through LDEQ’s Secretary, has the legal use. authority and necessary resources to When reviewing submitted ‘‘control Given the substantial amount of actively enforce against any violations strategy’’ SIPs or maintenance plans industrial emissions in the Baton Rouge of the State’s air pollution emission containing a MVEB, EPA determines Area, and the fact the area’s ozone control rules. After the BR area is whether the MVEB contained therein is problem is mostly driven by NOX redesignated to attainment, LDEQ will ‘‘adequate’’ for use in determining emissions, these potential contingency implement NSR for major stationary transportation conformity. Once EPA measures would be appropriate for sources and major modifications finds a budget adequate, the budget adequately correcting an attainment through the PSD program. must be used by local, state and Federal problem. agencies in determining whether VI. What is EPA’s evaluation of the BR These contingency measures and proposed transportation plans and area’s motor vehicle emissions budgets? schedules for implementation are programs ‘‘conform’’ to the SIP as consistent with EPA’s longstanding A. What are the transportation required by section 176(c) of the Act. guidance regarding contingency requirements for approvable MVEBs? EPA’s substantive criteria for measures for maintenance plans under A maintenance plan must include a determining ‘‘adequacy’’ of a MVEB are section 175A. The State will continue to MVEB for transportation conformity set out in 40 CFR 93.118(e)(4), which operate appropriate ambient ozone purposes. ‘‘Conformity’’ to the SIP was promulgated in the Transportation monitoring sites in the BR area to verify means that transportation activities will Conformity Rule Amendments for the continued attainment of the 1997 ozone not cause new air quality violations, ‘‘New 8-Hour Ozone and PM2.5 National NAAQS. The air monitoring results will worsen existing violations, or delay Ambient Air Quality Standards and reveal changes in the ambient air quality timely attainment of the NAAQS. It is a Miscellaneous Revisions for Existing as well as assist the State in determining process required by section 176(c) of the Areas; transportation conformity rule which contingency measures will be Act for ensuring that the effects of amendments—Response to Court most effective if necessary. emissions from all on-road sources are Decision and Additional Rule Change,’’ As required by section 175A(b) of the consistent with attainment or on July 1, 2004 (69 FR 40004). CAA, Louisiana commits to submit to maintenance of the standard. EPA’s As discussed earlier, Louisiana’s the EPA an updated ozone maintenance transportation conformity rules at 40 maintenance plan submission includes plan eight years after redesignation of CFR part 93 require that transportation NOX and VOC budgets for the year 2022. the BR area to cover an additional ten- plans, and programs, result in emissions EPA reviewed the budgets through the year period beyond the initial ten-year that do not exceed the MVEB adequacy process. The availability of maintenance period. As required by established in the SIP. The maintenance the SIP submission with this 2022 section 175A(d) of the CAA, Louisiana plan established an MVEB for 2022, MVEB was announced for public has also committed to retain VOC and which is the last year of the comment on EPA’s adequacy Web page NOX control measures contained in the maintenance plan. on, at: http://www.epa.gov/otaq/ SIP prior to redesignation. The MVEB is the level of total stateresources/transconf/ EPA finds that the maintenance plan allowable on-road emissions established currsips.htm#baton. The EPA public adequately addresses the five basic by the maintenance plan. Maintenance comment period on the adequacy of the components of a maintenance plan: plans must include the estimates of 2022 MVEB for BR closed on April 4, attainment inventory, maintenance motor vehicle VOC and NOX emissions 2011. EPA did not receive any adverse demonstration, monitoring network, that are consistent with maintenance of comments on the MVEB. On May 16, verification of continued attainment, attainment, which then act as a budget 2011, EPA made a finding of adequacy and contingency measures. The or ceiling for the purpose of determining for the 2022 MVEB included in this maintenance plan SIP revision whether transportation plans, and 8-hour ozone maintenance plan (76 FR submitted by Louisiana for BR meets the programs conform to the maintenance 28223). requirements of section 175A of the Act. plan. In this case, the MVEB sets the C. Is the MVEB approvable? Therefore, EPA is proposing to approve maximum level of on-road the maintenance plan for the BR area for transportation emissions that can be Table 8 shows the total projected the 1997 8-hour ozone standard as a produced, when considered with transportation emissions for 2022, as revision to the Louisiana SIP. emissions from all other sources, which submitted by Louisiana.

TABLE 8—PROJECTED TRANSPORTATION EMISSIONS [Tons per avg. ozone season day]

Pollutant 2006 2008 2012 2016 2020 2022

NOX ...... 29.30 28.35 18.63 12.08 8.33 6.96 VOC ...... 17.60 17.82 10.64 9.70 7.82 7.55

These transportation emissions are As shown in Table 8, substantial previously stated in this action, EPA also represented in Table 7 of this notice reductions in both NOX and VOC finds that the State has demonstrated as the ‘‘mobile’’ emissions portion of transportation emissions are projected the future combined emissions levels of emission inventory data for the BR area. between 2006 and 2022. Further, as NOX and VOC in 2008, 2012, 2016,

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2020, and 2022 are expected to be area will meet all of the applicable CAA the Clean Air Act. For that reason, these similar to or less than the emissions requirements under section 110 and Part actions: levels in 2006. The projected D for purposes of redesignation for the • Are not ‘‘significant regulatory transportation emissions for 2022 were 1997 8-hour ozone NAAQS, including actions’’ subject to review by the Office used by Louisiana as the basis of the the applicable CAA requirements for a of Management and Budget under 2022 NOX and VOC MVEB for the BR moderate 1997 8-hour ozone area and Executive Order 12866 (58 FR 51735, area. These emissions are consistent applicable anti-backsliding October 4, 1993); with the maintenance plan requirements for a 1-hour ozone severe • Do not impose an information demonstrating continued compliance area. collection burden under the provisions with the 1997 8-hour ozone NAAQS for Further, EPA is proposing to approve of the Paperwork Reduction Act (44 the 10-year period following into the SIP, as meeting section 175A U.S.C. 3501 et seq.); redesignation to attainment. and 107(d)(3)(E)(iv) of the Act, • Are certified as not having a The submitted NOX and VOC MVEB Louisiana’s maintenance plan for the BR significant economic impact on a for the BR area is defined in Table 9 area for the 1997 8-hour ozone NAAQS. substantial number of small entities below. The maintenance plan shows under the Regulatory Flexibility Act maintenance of the standard through (5 U.S.C. 601 et seq.); • TABLE 9—NOX AND VOC MVEB 2022. Additionally, EPA is proposing to Do not contain any unfunded [Summer season tons per day] approve the 2022 MVEB for NOX and mandate or significantly or uniquely VOC submitted by Louisiana for the BR affect small governments, as described Pollutant 2022 area in conjunction with its in the Unfunded Mandates Reform Act redesignation request and maintenance of 1995 (Pub. L. 104–4); NOX ...... 6.96 • Do not have Federalism VOC ...... 7.55 plan. Consequently, EPA is proposing to implications as specified in Executive Order 13132 (64 FR 43255, August 10, Through this rulemaking, EPA is approve the State’s request to redesignate the area from nonattainment 1999); proposing to approve Louisiana’s 2022 • Are not economically significant MVEB for VOCs and NOX for the BR to attainment for the 1997 8-hour ozone NAAQS. After evaluating Louisiana’s regulatory actions based on health or area for transportation conformity safety risks subject to Executive Order purposes, because EPA has determined redesignation request, EPA has determined that upon final approval of 13045 (62 FR 19885, April 23, 1997); that the area maintains the 1997 8-hour • Are not a significant regulatory ozone standard with the emissions at the above-identified SIP elements and the maintenance plan, the area will action subject to Executive Order 13211 the levels of the budget. The submittal (66 FR 28355, May 22, 2001); has met the adequacy criteria in 40 CFR meet the redesignation criteria set forth • in sections 107(d)(3)(E) and 175A of the Are not subject to requirements of 93.118(e)(4), and EPA has completed a section 12(d) of the National comprehensive review of the Act. The final approval of this redesignation request would change the Technology Transfer and Advancement maintenance plan, concluding that the Act of 1995 (15 U.S.C. 272 note) because overall plan demonstrates maintenance, official designation in 40 CFR part 81 for the BR area from nonattainment to application of those requirements would is approvable and the budgets are be inconsistent with the Clean Air Act; consistent with the overall plan. attainment for the 1997 8-hour ozone standard and Therefore, the budgets can be proposed • Do not provide EPA with the for approval. VIII. Statutory and Executive Order discretionary authority to address, as VII. What are EPA’s proposed actions? Reviews appropriate, disproportionate human health or environmental effects, using EPA is proposing several related Under the Clean Air Act, practicable and legally permissible actions under the Act for the BR 1997 redesignation of an area to attainment methods, under Executive Order 12898 8-hour moderate ozone nonattainment and the accompanying approval of a (59 FR 7629, February 16, 1994). area, consisting of Ascension, East maintenance plan under section Baton Rouge, Iberville, Livingston, and 107(d)(3)(E) are actions that affect the In addition, this rule does not have West Baton Rouge Parishes. Consistent status of a geographical area and do not tribal implications as specified by with the Act, EPA is proposing to impose any additional regulatory Executive Order 13175 (65 FR 67249, approve a request from the state of requirements on sources beyond those November 9, 2000), because the SIP is Louisiana to redesignate the BR area to imposed by state law. A redesignation to not approved to apply in Indian country attainment of the 1997 8-hour ozone attainment does not in and of itself located in the state, and EPA notes that standard. create any new requirements, but rather it will not impose substantial direct In this notice, EPA is also proposing results in the applicability of costs on tribal governments or preempt to approve the NOX and VOC RACT requirements contained in the Clean Air tribal law. requirements for the BRNA for the 1- Act for areas that have been List of Subjects hour and 1997 8-hour ozone standards redesignated to attainment. Moreover, that accompanied the State’s August 10, the Administrator is required to approve 40 CFR Part 52 2010 redesignation request. In prior a SIP submission that complies with the Environmental protection, Air separate rulemaking actions, EPA provisions of the Act and applicable pollution control, Intergovernmental terminated the 1-hour ozone anti- Federal regulations. 42 U.S.C. 7410(k); relations, Ozone, Nitrogen dioxide, backsliding section 185 penalty fee 40 CFR 52.02(a). Thus, in reviewing SIP Reporting and recordkeeping requirement, and proposed to approve submissions, EPA’s role is to approve requirements, Volatile organic the CTG Rules Update. We are state choices, provided that they meet compounds. proposing to determine that if EPA the criteria of the Clean Air Act. finally approves the CTG Rules Update Accordingly, these actions merely do 40 CFR Part 81 VOC and NOX provisions submitted not impose additional requirements Environmental protection, Air with the redesignation request, the BR beyond those imposed by state law and pollution control.

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Authority: 42 U.S.C. 7401 et seq. first click the ‘‘submit a comment’’ icon, and accountability measures (AMs) for Dated: August 16, 2011. then enter ‘‘NOAA–NMFS–2011–0197’’ the skate fishery (75 FR 34049, June 16, Al Armendariz, in the keyword search. Locate the 2010), and set fishery specifications for FY 2010–2011 (through April 30, 2012). Regional Administrator, Region 6. document you wish to comment on from the resulting list and click on the The ACL was set equal to the acceptable [FR Doc. 2011–21728 Filed 8–29–11; 8:45 am] ‘‘Submit a Comment’’ icon on the right biological catch (ABC) recommendation BILLING CODE 6560–50–P of that line. of the Council’s Scientific and • Fax: (978) 281–9135, Attn: Tobey Statistical Committee (SSC) (41,080 mt). Curtis. Amendment 3 also implemented an DEPARTMENT OF COMMERCE • Mail: Patricia A. Kurkul, Regional annual catch target (ACT), which is 75 Administrator, NMFS, Northeast percent of the ACL, and annual total National Oceanic and Atmospheric Regional Office, 55 Great Republic allowable landings (TALs) for the skate Administration Drive, Gloucester, MA 01930. Mark the wing and bait fisheries (TAL = ACT ¥ outside of the envelope, ‘‘Comments on dead discards and state landings), and 50 CFR Part 648 Skate Emergency Action.’’ three seasonal quotas for the bait [Docket No. 110818511–1510–01] Instructions: Comments must be fishery. An incidental possession limit submitted by one of the above methods may be implemented when landings RIN 0648–BB32 to ensure that the comments are approach the TAL, preventing excessive Fisheries of the Northeastern United received, documented, and considered quota overages. In FY 2010, the combination of States; Northeast Skate Complex by NMFS. Comments sent by any other increased landings of skate wings and a Fishery; Secretarial Emergency Action method, to any other address or individual, or received after the end of delay in implementation of Amendment AGENCY: National Marine Fisheries the comment period, may not be 3 possession limits (5,000 lb (2,270 kg) Service (NMFS), National Oceanic and considered. All comments received are of wings per trip) resulted in the wing Atmospheric Administration (NOAA), a part of the public record and will fishery reaching the TAL trigger in early Commerce. generally be posted for public viewing September. Consequently, the wing ACTION: Proposed temporary rule; on http://www.regulations.gov. All fishery was limited to the incidental request for comments. personal identifying information (e.g., possession limit of 500 lb (227 kg) of name, address, etc.) submitted skate wings per trip from September 3, SUMMARY: NMFS proposes emergency voluntarily by the sender will be 2010, through the end of FY 2010 on regulations to adjust catch limits in the publicly accessible. Do not submit April 30, 2011. Northeast Skate Complex Fishery. The confidential business information, or Asserting that the imposition of the proposed action was developed by otherwise sensitive or protected incidental skate wing possession limit NMFS to increase the fishing year (FY) information. NMFS will accept so early in the FY caused disruptions in 2011 catch limits for the skate fishery, anonymous comments (enter ‘‘N/A’’ in the supply of skate wings, economic which should extend the fishing season the required fields if you wish to remain hardship on fishing vessels and dealers, over a longer duration than occurred in anonymous). Attachments to electronic and threatened to undermine the market FY 2010, thus ensuring a more steady comments will be accepted in Microsoft position of U.S. suppliers, members of the skate wing fishing industry market supply. The proposed increases Word or Excel, WordPerfect, or Adobe requested that the Council consider in catch limits are supported by new PDF file formats only. options to mitigate the potential for this scientific information indicating FOR FURTHER INFORMATION CONTACT: significant increases in skate biomass. situation to be repeated in FY 2011. In Tobey Curtis, Fishery Policy Analyst, November 2010, the Council initiated DATES: Public comments must be (978) 281–9273; fax: (978) 281–9135. Framework 1 to reduce the skate wing received no later than 5 p.m., eastern SUPPLEMENTARY INFORMATION: possession limits, and increase the TAL standard time, on September 14, 2011. Background trigger point, in order to maximize the ADDRESSES: A supplemental duration of the skate fishing season in environmental assessment (EA) was In the Northeast U.S., skate fisheries FY 2011. Framework 1 was partially prepared that describes the proposed are managed by the New England approved by NMFS and implemented action and other considered alternatives Fishery Management Council (Council). on May 17, 2011 (76 FR 28328). and provides a thorough analysis of the In 2003, NMFS implemented the Since the implementation of impacts of the proposed measures and Northeast Skate Complex Fishery Framework 1, new scientific alternatives. Copies of the supplemental Management Plan (Skate FMP) to information on skate catch and biomass EA and the Initial Regulatory Flexibility manage a complex of seven skate became available, which allowed the Analysis (IRFA), are available on species: Winter (Leucoraja ocellata); SSC to revise its recommendation for request from Patricia A. Kurkul, little (L. erinacea); thorny (Amblyraja skate ABC. The ABC is calculated by Regional Administrator, NMFS, radiata); barndoor (Dipturus laevis); multiplying the median catch/biomass Northeast Regional Office, 55 Great smooth (Malacoraja senta); clearnose ratio by the most recent 3-yr average Republic Drive, Gloucester, MA 01930. (Raja eglanteria); and rosette (L. skate biomass. Therefore, significant These documents are also available garmani) (see 68 FR 49693, August 19, increases in the survey biomass of little online at http://www.nero.noaa.gov. 2003). The FMP established biological and winter skates through autumn 2010 You may submit comments, identified reference points and overfishing support increases in the ABC. by NOAA–NMFS–2011–0197, by any definitions for each species based on Additionally, new research on the one of the following methods: abundance indices in the NMFS discard mortality of winter and little • Electronic Submissions: Submit all Northeast Fisheries Science Center skates in trawl gear indicates that the electronic public comments via the bottom trawl survey. assumed discard mortality rate of 50 Federal e-Rulemaking Portal http:// Amendment 3 to the Skate FMP, percent is too high, and that the dead www.regulations.gov. To submit which was implemented in July 2010, discard portion of the catch has been comments via the e-Rulemaking Portal, instituted an annual catch limit (ACL) overestimated in the past. Updates to

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estimates on state waters and transfer at 305(c) of the Magnuson-Stevens Act, to 1. That the skate ABC and ACL be sea landings were also incorporated. implement the revised skate ABC for the increased from 41,080 mt to 50, 435 mt Collectively, this new information remainder of FY 2011. This would for FY 2011; resulted in a revised ABC increase available landings of skates, 2. That the ACT be increased from recommendation of 50,435 mt. and result in the lengthening of the 30,810 mt to 37,826 mt; and This new ABC recommendation is season for the skate wing fishery, 3. That the TAL be increased from being used by the Council to develop thereby helping to avoid the economic 13,848 mt to 21,561 mt, reflecting the skate fishery specifications for FYs impacts associated with a potential higher ACT as well as a lower assumed 2012–2013. However, due to continued closure. skate discard rate and improved high rates of skate wing landings under estimates of state landings. Proposed Measures Framework 1 possession limits, and the The skate wing fishery would be likelihood that the skate wing fishery Based on the new ABC allocated 66.5 percent of the TAL would once again be closed early in FY recommendation from the SSC, this (14,338 mt) and the skate bait fishery 2011, the Council, at its June 2011 emergency action proposes the would be allocated 33.5 percent of the meeting, requested that NMFS take following changes to the regulations TAL (7,223 mt) emergency action, pursuant to section governing the skate fishery (see Table 1):

TABLE 1—NO ACTION AND PROPOSED FY 2011 SKATE ABC AND ASSOCIATED CATCH LIMITS (MT)

No action Preferred Percent change

ABC ...... 41,080 50,435 +23 ACL ...... 41,080 50,435 +23 ACT ...... 30,810 37,826 +23 TAL ...... 13,848 21,561 +56 Wing TAL ...... 9,209 14,338 +56 Bait TAL ...... 4,639 7,223 +56

Assumed Discard Rate ...... 52.0% 36.3% ¥30 Assumed State Landings ...... 3.0% 6.7% +123

This action does not propose changes above the incidental possession limit of recommended ABC was a recent and to any other regulations implemented by 500 lb (227 kg) in these primary unforeseen event that cannot be Amendment 3 or Framework 1. The fisheries would be discarded. This implemented in a timely way through wing possession limits would remain at proposed action would enable normal Magnuson-Stevens Act and 2,600 lb (1,179 kg) for May 1 through fishermen to retain and land for sale Skate FMP actions. Through this August 31, and 4,100 lb (1,860 kg) for those skates that would otherwise have emergency rulemaking, NMFS is September 1 through April 30. The skate to be discarded. increasing the FY 2011 skate complex bait possession limit would remain at ABC, ACL, ACT, and TALs, thereby 20,000 lb (9,072 kg) whole weight per Classification relieving restrictions imposed by the trip for vessels carrying a Skate Bait NMFS has preliminarily determined previous, lower catch levels. Doing so Letter of Authorization. Finally, if the that the new assessment of the status of will assist in preventing significant TAL triggers are reached before the end the skate complex being relied on for direct economic loss for fishery of the year (85 percent for the wing the significantly higher ABC participants and associated industries fishery, 90 percent for the bait fishery), recommendation for FY 2012–2013 also that would be subject to lower the incidental possession limit would justifies the emergency in-season commercial harvest levels. remain at 500 lb (227 kg) of wings (1,135 adjustment requested by the Council. The Office of Management and Budget lb (515 kg) whole wt.). These Pursuant to section 304(b)(1)(A) of the has determined that this proposed rule management measures may be Magnuson-Stevens Act, the NMFS is not significant for the purposes of reconsidered as the Council develops Assistant Administrator has made a Executive Order 12866. fishery specifications for FYs 2012– preliminary determination that this NMFS prepared an IRFA, as required 2013. proposed rule is consistent with the by section 603 of the Regulatory The proposed quota increases are Skate FMP, other provisions of the Flexibility Act (RFA). The IRFA expected to result in considerable Magnuson-Stevens Act, and other describes the economic impact this increases in skate revenues and positive applicable law, subject to further proposed rule, if adopted, would have economic impacts for the fishery, while consideration after public comment. on small entities. A description of the maintaining the conservation objectives NMFS has reviewed the Council’s action, why it is being considered, and of the Skate FMP. Although the landings request for temporary emergency the legal basis for this action are of skate wings are expected to increase rulemaking with respect to section contained at the beginning of this under the proposed changes, overall 305(c) of the Magnuson-Stevens Act and section of the preamble and in the catch of skates will not likely be NMFS policy guidance for the use of SUMMARY of this proposed rule. A significantly affected due to the nature emergency rules (62 FR 44421, August summary of the IRFA follows. A copy of of the skate wing fishery, which is 21, 1997) and determined that the this analysis is available from NMFS primarily an incidental fishery within Council’s request meets both the criteria (see ADDRESSES). the primary fisheries for groundfish and and justifications for invoking the All of the entities (fishing vessels) monkfish. Absent this proposed action, emergency rulemaking provisions of the affected by this action are considered once the current, lower possession limit Magnuson-Stevens Act. Specifically, the small entities under the Small Business trigger is reached, skates that are caught SSC’s revision of its previously Administration (SBA) size standards for

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small fishing businesses (less than $4.0 2,607 entities (number of skate permit allowable under the quotas. The million in annual gross sales). holders). However, during FY 2010, estimated potential revenue from the Therefore, there are no disproportionate only 503 vessels landed skates for the sale of skates under the proposed catch effects on small versus large entities. wing market, and only 56 landed skates limits is approximately $9.0 million, Information on costs in the fishery is not for the bait market. compared to $5.8 million if this action readily available, and individual vessel Economic Impacts of the Proposed were not implemented. Due to the profitability cannot be determined Action Compared to Significant Non- implications of closing the directed directly; therefore, expected changes in Selected Alternatives skate fisheries early in the fishing year, gross revenues were used as a proxy for the higher catch limits associated with profitability. The purpose of the proposed action is the proposed action will result in to increase the skate ABC and associated This action does not introduce any additional revenue if fishing is catch limits in order to increase new reporting, recordkeeping, or other prolonged. According to analyses in landings, thereby extending the compliance requirements. This Framework 1, vessels that participate in duration of the fishing season and proposed rule does not duplicate, the skate fishery derive most (an average helping to prevent the negative overlap, or conflict with other Federal of 96 percent) of their revenues from rules. economic impacts that would be associated with an early closure of the other fisheries (e.g., groundfish, Description and Estimate of Number of directed skate fisheries. Compared to monkfish). Therefore, relative to total Small Entities to Which the Rule Would the other alternative considered, the fishing revenues, catch limits of other Apply proposed action is expected to species would be expected to have more The proposed increase in the Skate maximize profitability for the skate significant economic impacts than ACL and TALs would impact vessels fishery by allowing higher levels of revenues derived from skates alone. that hold Federal open access landings for the duration of FY 2011. However, as skate prices have begun commercial skate permits that Therefore, the economic impacts increasing in recent years, more vessels participate in the skate fishery. For the resulting from the proposed action as are deriving a greater proportion of their purposes of this analysis, each compared to the No Action Alternative income from skates. permitted vessel is treated as a single are positive, since the action would Authority: 16 U.S.C. 1801 et seq. small entity and is determined to be a provide additional fishing opportunity Dated: August 24, 2011. small entity under the RFA. According for vessels participating in the skate to the Framework 1 final rule and Final fishery for FY 2011. Samuel D. Rauch III, Regulatory Flexibility Analysis (76 FR The proposed action is almost certain Deputy Assistant Administrator for 28328, May 17, 2011), as of December to result in greater revenue from skate Regulatory Programs, National Marine 31, 2010, the maximum number of small landings. Based on recent landing Fisheries Service. fishing entities (as defined by the SBA) information, the skate fishery is able to [FR Doc. 2011–22165 Filed 8–29–11; 8:45 am] that may be affected by this action is land close to the full amount of skates BILLING CODE 3510–22–P

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Notices Federal Register Vol. 76, No. 168

Tuesday, August 30, 2011

This section of the FEDERAL REGISTER Service, U.S. Department of Agriculture, procedures that appear in part 36, Title contains documents other than rules or National Training and Development 7 of the Code of Federal Regulations (7 proposed rules that are applicable to the Center, Riverside Business Park, 100 CFR part 36). public. Notices of hearings and investigations, Riverside Parkway, Suite 101, Background committee meetings, agency decisions and Fredericksburg, VA 22406: Fax (540) rulings, delegations of authority, filing of petitions and applications and agency 361–1199, or on the Web at: http:// AMS received a request from the statements of organization and functions are www.regulation.gvo. Comments should GBW on June 8, 2009, to revise the examples of documents appearing in this make reference to the dates and page United States Standards for Grades of section. number of this issue of the Federal Cultivated Ginseng. The GBW Register and will be made available for represents shippers, processors and all public inspection in the above office the cultivated ginseng growers in DEPARTMENT OF AGRICULTURE during regular business hours. Wisconsin. The initial inquiry requested Comments can also be viewed on the AMS to add ‘‘unless otherwise Agricultural Marketing Service http://www.regulations.gov Web site. specified’’ to the size table to [Doc. Number FV–09–0043] The current United States Standards for accommodate changing market values. Cultivated Ginseng, along with the AMS believed that by allowing any United States Standards for Grades of proposed changes, will be available specified value would undermine the Cultivated Ginseng either through the address cited above integrity of the standards. To resolve the or by accessing the AMS, Fresh issue, AMS met with members of the AGENCY: Agricultural Marketing Service, Products Division Web site at: http:// GBW to revise the standards and USDA. www.ams.usda.gov/freshinspection. develop new grades based solely on ACTION: Notice. FOR FURTHER INFORMATION CONTACT: Dr. quality and percentage defects. The Carl Newell, at the above address or call proposal would remove the current SUMMARY: The Agricultural Marketing (540) 361–1120. grades and replace them with seven new Service (AMS), of the Department of SUPPLEMENTARY INFORMATION: Section grades: U.S. No. 1 through U.S. No. 7, Agriculture (USDA), is soliciting 203(c) of the Agricultural Marketing Act including tolerances for each grade. comments on the proposed voluntary of 1946 (7 U.S.C. 1621–1627), as Further, the following size United States Standards for Grades of amended, directs and authorizes the classifications would be created: Cultivated Ginseng. AMS received a Secretary of Agriculture ‘‘to develop and Premium, Select, and Standard. In request from the Ginseng Board of improve standards of quality, condition, addition, the ‘‘values’’ would be Wisconsin (GBW), to amend the quantity, grade and packaging and removed from the size table in § .1330. standards to reflect current market recommend and demonstrate such Other revisions would include values. To ensure the integrity of the standards in order to encourage redefining ‘‘Wrinkle’’ as ‘‘Texture,’’ standards, the proposed revisions would uniformity and consistency in removing ‘‘similar varietal be based on quality and percentage commercial practices.’’ AMS is characteristics,’’ adding a definition for defects. The new grades would replace committed to carrying out this authority ‘‘Length,’’ and rewriting most of the the current ones and promote the in a manner that facilitates the definitions. The grade determination orderly and efficient marketing of marketing of agricultural commodities section would also be amended to ginseng in an evolving global economy. and makes copies of official standards reflect new calculations without Other changes would include adding available upon request. The United ‘‘values.’’ Further, an illustrated ginseng tolerances, reclassifying sizes, removing States Standards for Grades of Fruits root would be included at the end of the table ‘‘values,’’ and amending and Vegetables not connected with standards. definitions. These revisions are needed Federal Marketing Orders or U.S. Import The revisions are such that the section to determine and complement the new Requirements, no longer appear in the numbers in the proposed standards do grades. Code of Federal Regulations, but are not match the section numbers in the DATES: Comments must be received by maintained by USDA, AMS, Fruit and current standards. In an effort to clearly September 29, 2011. Vegetable Programs, and are available outline these proposed changes, the first ADDRESSES: Interested persons are on the Internet at http:// column of the following chart shows the invited to submit written comments to www.ams.usda.gov/freshinspection. section as it currently reads. The second the Standardization Branch, Fresh AMS is proposing to revise the column shows the proposed change and Products Division, Fruit and Vegetable voluntary United States Standards for the third column states why the change Programs, Agricultural Marketing Grades of Cultivated Ginseng using is being proposed.

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UNITED STATES STANDARDS OF CULTIVATED GINSENG

Current Standard Proposed Discussion

§ .1325 General. § .1325 General. The information reported in the current Gen- The standards apply to cultivated ginseng of The standards apply to cultivated ginseng, eral Section would best be given in the similar characteristics, which is clean, well such as American ginseng (Panax Grade Section. The proposed General Sec- cured, free from external and internal defects, quinquefolius) and Asian ginseng (Panax tion would provide an introduction to what mold, rust and decay. The origin of the gin- ginseng). Ginseng that grows wild or natu- type of ginseng is covered under the stand- seng, color and/or wrinkle may be specified rally, rather than being planted and cul- ards. with the grade. tivated domestically or commercially, is not covered under these standards.

§ .1326 U.S. Premium. § .1326 Grades. The current grades are partially based on ‘‘U.S. Premium’’ consists of ginseng which has All grades, U.S. No. 1 through U.S. No. 7, market values. Changing market values a graded value of 90 or more. consists of ginseng which are of one root have caused the standards to become non- type, clean and well cured; which are free competitive in the global market. New from external and internal defects, mold, grades would be based solely on quality and decay. The color and texture of the gin- and percentage of defects. seng shall be specified with the grade; whereas, the origin may be specified with the grade.

§ .1327 U.S. Select. § .1327 Tolerances. The current grades have values assigned to ‘‘U.S. Select’’ consists of ginseng which has a In order to allow for variations incident to them, originally based on market values. graded value of 75 to 98. proper grading and handling in each of the The values would be removed and replaced § .1328 U.S. Medium. foregoing grades, the following tolerances, with grades determined by percentage of ‘‘U.S. Medium’’ consists of ginseng which has a by weight, reported to the nearest tenth of a defects. The tolerance section would be graded value of 60 to 74. percent, are provided as specified: added to define the percentage of defects § .1329 U.S. Standard. (a) U.S. No. 1. 1 percent allowed for defects. allowed in each grade. ‘‘U.S. Standard’’ consists of ginseng which has (b) U.S. No. 2. More than 1 but not more than a graded value of 0 to 59. 5 percent allowed for defects. (c) U.S. No. 3. More than 5 but not more than 10 percent allowed for defects. (d) U.S. No. 4. More than 10 but not more than 25 percent allowed for defects. (e) U.S. No. 5. More than 25 but not more than 50 percent allowed for defects. (f) U.S. No. 6. More than 50 but not more than 75 percent allowed for defects. (g) U.S. No. 7. More than 75 percent allowed for defects.

§ .1330 Size. § .1328 Size Classifications. In the proposed standards, the terms ‘‘Pre- Size is a factor in determining the grade. Size Size shall be determined in inches and frac- mium,’’ ‘‘Select,’’ and ‘‘Standard’’ would no shall be in inches and fractions thereof, in tions thereof, in diameter and length for the longer be grades but become size classi- minimum diameter, maximum diameter, min- following Whole Root Size Categories listed fications reported in connection with the imum length, maximum length in the fol- in Table I. grade. The term ‘‘Medium’’ would be lowing categories: [Table I—Whole Root Size Categories] dropped since it may be confused with me- [table] The following Size Classifications shall be re- dium sized roots defined in Table I. The in- ported in connection with the grade: dustry agreed that each grade would be (a) ‘‘Premium’’ is a lot consisting of more than qualified by a size category. The size cat- 50 percent short ginseng of any category. egories would provide a more accurate de- (b) ‘‘Select’’ is a lot consisting of more than scription of the lot. 70 percent short and medium ginseng of The proposed ‘‘Table I—Whole Root Cat- any category. egories,’’ replacing the original table, would (c) ‘‘Standard’’ is a lot consisting of more than remove the ‘‘Value’’ column, ‘‘Fiber/Prong’’ 80 percent short, medium, and long gin- row, and the ‘‘Culls/Foreign Material’’ row. seng of any category. The ‘‘Value’’ column would be removed since the grades would no longer be based on values. The ‘‘Fiber/Prong’’ and ‘‘Culls/ Foreign Material’’ rows would be removed since they were only defined by values and not by diameter or length. Also, ‘‘Long’’ would replace ‘‘Large’’ printed in error under ‘‘Small’’ ‘‘Length (inches)’’ in Table I.

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UNITED STATES STANDARDS OF CULTIVATED GINSENG—Continued

Current Standard Proposed Discussion

§ .1331 External Color. § .1329 External Color. Except for the section number and first line, (a) ‘‘Light’’ means the color closest to ‘‘Light’’ ‘‘Color’’ shall be applied to the lot as a whole this section would remain the same. The on Visual Aid GIN. CC–1. using the following terms: first line would be added to clarify that color (b) ‘‘Light Medium’’ means the color closest to (a) ‘‘Light’’ means the color closest to ‘‘Light’’ is applied to the lot as a whole and not to ‘‘Light Medium’’ on Visual Aid GIN. CC–1. on Visual Aid GIN. CC–1. individual roots. (c) ‘‘Medium’’ means the color closest to ‘‘Me- (b) ‘‘Light Medium’’ means the color closest to dium’’ on Visual Aid GIN. CC–1. ‘‘Light Medium’’ on Visual Aid GIN. CC–1. (d) ‘‘Dark Medium’’ means the color closest to (c) ‘‘Medium’’ means the color closest to ‘‘Dark Medium’’ on Visual Aid GIN. CC–1. ‘‘Medium’’ on Visual Aid GIN. CC–1. (e) ‘‘Dark’’ means the color closest to ‘‘Dark’’ on (d) ‘‘Dark Medium’’ means the color closest to Visual Aid GIN. CC–1. ‘‘Dark Medium’’ on Visual Aid GIN. CC–1. (e) ‘‘Dark’’ means the color closest to ‘‘Dark’’ on Visual Aid GIN. CC–1.

§ .1332 Wrinkle. § .1330 Texture. Except for the section number, title, and first (a) ‘‘Smooth’’ means the surface texture closest ‘‘Texture’’ shall be applied to the lot as a line, this section would remain unchanged. to ‘‘Smooth’’ on Visual Aid GIN. IDENT–1. whole using the following terms: The first line would be added to clarify that (b) ‘‘Slight Wrinkle’’ means surface texture clos- (a) ‘‘Smooth’’ means the surface texture clos- texture would be applied to the lot as a est to ‘‘Slight Wrinkle’’ on Visual Aid GIN. est to ‘‘Smooth’’ on Visual Aid GIN. IDENT– whole and not to the individual root. In addi- IDENT–1. 1. tion, the title would be changed to ‘‘Tex- (c) ‘‘Wrinkle’’ means surface texture closest to (b) ‘‘Slight Wrinkle’’ means surface texture ture’’ to remove any confusion between the ‘‘Wrinkle’’ on Visual Aid GIN. IDENT–1. closest to ‘‘Slight Wrinkle’’ on Visual Aid section and the term ‘‘wrinkle’’ used in the GIN. IDENT–1. definitions. (c) ‘‘Wrinkle’’ means surface texture closest to ‘‘Wrinkle’’ on Visual Aid GIN. IDENT–1.

§ .1533 Sample and Sample Size. § .1331 Sample and Sample Size. Except for the section number, this section ***** ***** would remain unchanged.

§ .1334 Grade Determination. § .1332 Size Classification Determination. The procedure for inspecting ginseng would (a) Whole Root Score. Separate and/or break Separate whole roots from culls and foreign remain unchanged. However, the formula prongs and fiber from whole roots, weigh and material, weigh and record. Clip or break off for determining the grade would be different record. Separate and weigh the culls and for- prongs and rootlets from whole roots, weigh since the grade would not be based on val- eign material. Sort the balance of the sample and record. Sort whole roots into size cat- ues. Size would be determined first, fol- into whole root size categories (See egories (See § 51.1327) by first separating lowed by inspecting the ginseng for defects. § 51.1330) and weigh each category. Deter- whole roots into diameter categories (Small, Culls and foreign material would be ex- mine the score for each category by dividing Medium, Large, Extra Large). Further sepa- cluded from the determination of size, the category value by 450 (if grams) or 16 (if rate diameter categories into length cat- whereas prongs and rootlets would be in- ounces) and multiply the result by the weight egories (Short, Medium, Long), weigh and cluded. Prongs and rootlets would be ex- of the category. Add the scores for all the record. Divide by the total weight of the cluded from the determination of grade, categories to determine the Whole Root sample minus the culls and foreign material whereas culls and foreign material would be Score. to calculate the percentage of each length included. (b) Deductions. Weigh the External and Internal category. Add together the length category Defects and determine each percentage of percentages using the size classification the sample. Divide the External Defects per- definitions (See § 51.1327 a, b, and c). Ex- centage by 2 (i.e., 6% would be recorded as ample: 19% Small Short, 23% Medium 3) to determine the External Defects deduc- Short, and 10% Large Short totals 52%, tion. The Internal Defects percentage is equal making a Premium size lot. to the Internal Defects deduction. Add the § .1332 Grade Determination. External and Internal Defects deductions to Weigh and record the external and internal determine the Total Root Deductions. defects and divide each by the total weight (c) Graded Value. Subtract the Total Root De- of the sample minus the prongs and root- ductions from 100 and multiply the results by lets to calculate the external defect percent- the Whole Root Score to determine the Grad- age and internal defect percentage. Divide ed Value. Locate the Graded Value in the external defect percentage by 2 (i.e., § 51.1326 to 51.1328 to assign the grade. 6% would be recorded as 3%) to determine the External Defect Deduction. The internal deduction percentage is equal to the Inter- nal Defects Deduction. Add the External and Internal Defects Deductions to cal- culate the Total Defect Percentage. The Total Defect Percentage will determine the grade of the lot (See § 51.1326).

§ .1335 Similar varietal characteristics. This definition would be removed, since it ‘‘Similar varietal characteristics’’ means the gin- would not be a requirement of the grade. seng is the same variety and color. Inspectors would not be required to distin- guish the subtle differences between vari- eties. In addition, color would be applied to the lot, not on individual roots.

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UNITED STATES STANDARDS OF CULTIVATED GINSENG—Continued

Current Standard Proposed Discussion

§ .1336 Clean. § .1334 Clean. Except for the section number, this definition ***** ***** would remain unchanged.

§ .1337 Well cured. § .1335 Well cured. Except for the section number, this definition ***** ***** would remain unchanged.

§ .1338 Prong. § .1336 Prong. The definition would be further qualified, so as ‘‘Prong’’ means a root or portion of a root grow- ‘‘Prong’’ means a root or portion of a root not to confuse a prong with a whole root. ing off the main root. growing off the main root. A prong cannot exceed more than one half the diameter of the main root.

§ .1339 Whole root. § .1337 Whole root. This definition would be slightly modified to ‘‘Whole root’’ means the main root or upper ‘‘Whole root’’ means the main root or upper remove any confusion between a prong and portion of the main root, and may or may not portion of the main root, including any por- a whole root. have prongs and/or fibers attached. Whole tion growing off the main root that is too roots must have a tapered top or crown. large to be a prong. Whole roots must have a tapered top or crown.

§ .1340 Fiber. § .1338 Rootlet. The term ‘‘fiber’’ has caused confusion. ‘‘Fiber’’ means small roots less than 1⁄8 inch in ‘‘Rootlet’’ means small slender roots less than Therefore, ‘‘Rootlet’’ will be substituted for diameter. 1⁄8 inch in diameter. the term fiber to prevent further misidentification.

§ .1341 Diameter. § .1339 Diameter. This definition would be slightly reworded for ‘‘Diameter’’ means the greatest dimension at ‘‘Diameter’’ means the greatest dimension at clarification. right angles to a line from the root crown or right angles to a line from the top of the the point of attachment of the prong to the whole root to the tip. Diameter shall not be tip. Diameter shall be the greatest dimension, measured at the point of attachment of a but not at the point of attachment of the prong or the area where a prong was re- prong. moved.

§ .1340 Length. A definition for length is proposed. Length ‘‘Length’’ means the greatest dimension of the would be measured in a straight line and whole root measured in a straight line par- would not follow the curve of the root. allel to the longitudinal axis from the top of the whole root to the tip, not including any portion of the crown or rootlet, if present.

§ .1342 Defects. § .1341 Defects. Rust would be removed from the definition ‘‘Defects’’ means any mechanical, pathological ‘‘Defects’’ means any mechanical, patholog- since it is the same as discoloration. Fur- and/or physiological defect consisting of cuts, ical and/or physiological defect consisting of ther, at industry’s request, a definition for external discoloration, internal green or red cuts, external discoloration, internal green an area left by clipped or removed prongs discoloration, insect, mold, scab or other or red discoloration, insect, mold, scab, or would be added. means that affect the appearance or mar- other means that affect the appearance or keting quality. marketing quality of the whole root. In addi- tion, when the cut area left by a clipped or removed prong exceeds one half of the di- ameter of the root, it shall be a defect.

§ .1343 Cull. § .1342 Cull. This definition would define ‘‘unusable por- ‘‘Cull’’ means any unusable portion. ‘‘Cull’’ means more than 50 percent of the tion’’ to provide a clearer guide as to what whole root is unusable. is a cull.

§ .1344 Origin. § .1343 Origin. Except for the section number, this definition ***** ***** remains unchanged.

§ .1344 [Reserved] This section would be reserved if needed at a later time.

Illustration Ginseng 1 An illustration of a ginseng root would be added at the end of the standards, which defines the parts of the root, what should be clipped, and the correct determination for length and diameter.

The proposed revisions will benefit market. A 30-day period is provided for soon as possible to reflect current the industry by allowing the marketing interested persons to comment. This marketing practices. of ginseng in the U.S. to be competitive period is deemed appropriate in order to Authority: 7 U.S.C. 1621–1627. in a changing and demanding global implement these changes, if adopted, as

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Dated: August 19, 2011. agricultural producers such as women, Signed in Washington, DC, on August 23, David R. Shipman, limited resource, socially disadvantaged 2011. Acting Administrator, Agricultural Marketing and other traditionally under-served Barbara Leach, Service. farmers and ranchers (under-served Associate Administrator, Federal Crop [FR Doc. 2011–22117 Filed 8–29–11; 8:45 am] agricultural producers). This package Insurance Corporation. BILLING CODE 3410–02–P will be combined with another currently [FR Doc. 2011–22136 Filed 8–29–11; 8:45 am] approved package 0563–0067 entitled, BILLING CODE 3410–08–P Risk Management and Crop Insurance DEPARTMENT OF AGRICULTURE Education; Risk for Applications when the package comes up for renewal in DEPARTMENT OF AGRICULTURE Federal Crop Insurance Corporation July 2012. With this submission, RMA Request for Extension and Revision of seeks to obtain OMB’s approval for an Forest Service a Currently Approved Information information collection project that will Uinta-Wasatch-Cache National Forest Collection assist RMA in operating and evaluating these programs. The primary objective Resource Advisory Committee AGENCY: Federal Crop Insurance of the information collection projects is Corporation, Risk Management Agency to enable RMA to better evaluate the AGENCY: Forest Service, USDA. (RMA), USDA. performance capacity and plans of ACTION: Notice of meeting. ACTION: Notice and request for organizations that are applying for funds comments. for cooperative agreements for the SUMMARY: The Uinta-Wasatch-Cache SUMMARY: In accordance with the Community Outreach and Assistance National Forest Resource Advisory Paperwork Reduction Act of 1995 (44 Partnership Program. Committee will conduct a meeting in U.S.C. Chapter 35) this notice This information collection package Salt Lake City, Utah. The committee is announces the Risk Management will be used for evaluating applications meeting as authorized under the Secure Agency’s intention to request an and awarding partnership agreements; Rural Schools and Community Self- extension and revision to a currently applicants are required to submit Determination Act (Pub.L 110–343) and approved information collection for materials and information necessary to in compliance with the Federal Notice of Funds Availability— evaluate and rate the merit of proposed Advisory Committee Act. The purpose Community Outreach and Assistance projects and evaluate the capacity and is to finalize the review of project Partnership Program. qualification of the organization to submittals. DATES: Comments on this notice will be complete the project accepted until close of business, DATES: The meeting will be held on Estimate of Burden: The public September 22, 2011, from 3 to 5:30 p.m. October 31, 2011. reporting burden for this collection of ADDRESSES: Interested persons are information is estimated to average 6 ADDRESSES: The meeting will be held at invited to submit comments by any of hours per response per application. the Salt Lake County Government the following methods: Center, Room S1002, 2001 South State • By Mail to: Lana Cusick, Risk Respondents/Affected Entities: Street, Salt Lake City, Utah. Written Management Education Division, Education institutions, community comments should be sent to Loyal Clark, USDA/RMA, 1400 Independence based and cooperative organizations, Uinta-Wasatch-Cache National Forest, Avenue, SW., Room 6717–S, Stop 0808, and non-profit organizations. 88 West 100 North, Provo, Utah 84601. Washington, DC 20250–0808. Estimated annual number of Comments may also be sent via e-mail • E–Mail: [email protected]. respondents: 150. to [email protected], via facsimile to All comments will be available for 801–342–5144. public inspection during regular Estimated annual number of business hours at the same address. All responses per respondent: 1. All comments, including names and responses to this notice will be Estimated annual number of addresses when provided, are placed in summarized and included in the request responses: 150. the record and are available for inspection and copying. The public may for OMB approval. All comments will Estimated total annual burden on inspect comments received at the Uinta- also become a matter of public record. respondents: 900 hours. FOR FURTHER INFORMATION CONTACT: Wasatch-Cache National Forest, 88 West Comments are invited on: (1) Whether Contact Lana Cusick, Risk Management 100 North, Provo, Utah 84601. the proposed collection of information Education Division, USDA/RMA, 1400 is necessary for the proper performance FOR FURTHER INFORMATION CONTACT: Independence Avenue, SW. Room of the functions of the agency, including Loyal Clark, RAC Coordinator, USDA, 6717–S, Stop 0808, Washington, DC Uinta-Wasatch-Cache National Forest, 20250–0808, telephone (202) 720–3325. whether the information will have practical utility; (2) the accuracy of the 88 West 100 North, Provo, Utah 84601; SUPPLEMENTARY INFORMATION: agency’s estimate of the burden of the 801–342–5117; [email protected]. Title: Notice of Funds Availability— Community Outreach and Assistance proposed collection of information; (3) SUPPLEMENTARY INFORMATION: The Partnership Program. ways to enhance the quality, utility, and meeting is open to the public. The OMB Number: 0563–0066. clarity of the information to be following business will be conducted: Type of Request: Extension and collected; and (4) ways to minimize the (1) Finalize project recommendations, revision of a currently approved burden of the collection of information and (2) schedule site monitoring visits. information collection. on those who are to respond, through Persons who wish to bring related Abstract: The Federal Crop Insurance use, as appropriate, of automated, matters to the attention of the Corporation administers cooperative electronic, mechanical, or other Committee may file written statements agreements that will be used to provide collection technologies, e.g., permitting with the Committee staff before or after outreach and assistance to under-served electronic submission of responses. the meeting.

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Dated: August 24, 2011. may be made by contacting the person 420 Barrett Street, Dillon, MT 59725, Cheryl F. Probert, listed For Further Information. (406) 683–3979; e-mail [email protected]. Deputy Forest Supervisor. SUPPLEMENTARY INFORMATION: The SUPPLEMENTARY INFORMATION: Agenda [FR Doc. 2011–22085 Filed 8–29–11; 8:45 am] meeting is open to the public. Agenda for this meeting includes discussion BILLING CODE P items to be covered include: (1) about new project proposals seeking Introductions, (2) Approval of Minutes, funding. The meeting is open to the (3) RAC Administrative Updates, (4) public. Public input opportunity will be DEPARTMENT OF AGRICULTURE Public Comment, (5) Project provided and individuals will have the Presentations, (6) Vote on New Project opportunity to address the Committee Forest Service Proposals, (7) General Discussion, (8) throughout the meeting. Glenn/Colusa County Resource Adjourn. Anyone who would like to Dated: August 15, 2011. Advisory Committee bring related matters to the attention of David R. Myers, the committee may file written Designated Federal Official. AGENCY: Forest Service, USDA. statements with the committee staff [FR Doc. 2011–21358 Filed 8–29–11; 8:45 am] ACTION: Notice of Meeting. before or after the meeting. The agenda will include time for people to make BILLING CODE 3410–11–M SUMMARY: The Glenn/Colusa County oral statements of three minutes or less. Resource Advisory Committee (RAC) Individuals wishing to make an oral DEPARTMENT OF AGRICULTURE will meet in Willows, California. The statement should request in writing by committee is authorized under the September 12, 2011 to be scheduled on Rural Housing Service Secure Rural Schools and Community the agenda. Written comments and Self-Determination Act (Pub. L. 110– requests for time for oral comments Funds Availability for Section 514 343) (the Act) and operates in must be sent to Randy Jero, Committee Farm Labor Housing Loans and compliance with the Federal Advisory Coordinator, USDA, Mendocino Section 516 Farm Labor Housing Committee Act. The purpose of the National Forest, Grindstone Ranger Grants for Off-Farm Housing for Fiscal committee is to improve collaborative District, 825 N. Humboldt Ave., Year 2011 relationships and to provide advice and Willows, CA 95988 or by e-mail to recommendations to the Forest Service [email protected] or via facsimile to 530– AGENCY: Rural Housing Service, USDA. concerning projects and funding 934–1212. ACTION: Notice; correction. consistent with the title II of the Act. Dated: August 23, 2011. The meeting is open to the public. The SUMMARY: This notice corrects the Eduardo Olmedo, scoring points to a Notice published in purpose of the meeting is to present District Ranger. projects and vote on projects. the Federal Register on July 7, 2011, [FR Doc. 2011–22087 Filed 8–29–11; 8:45 am] regarding Funds Availability for Section DATES: The meeting will be held on BILLING CODE 3410–11–P 514 Farm Labor Housing Loans and September 19, 2011 from 1:30 p.m. and Section 516 Farm Labor Housing Grants end at approximately 4:30 p.m. for Off-Farm Housing for Fiscal Year ADDRESSES: The meeting will be held in DEPARTMENT OF AGRICULTURE (FY) 2011. The correction changes the the field during the monitoring trip points assigned under section VI. Pre- beginning at the Mendocino NF Forest Service application Review Information, Supervisor’s Office, 825 North Southwest Montana Resource (A)(1)(v)(a) entitled New Construction Humboldt Ave., Willows, CA. Written Advisory Committee Meeting Energy Conservation. This notice also comments may be submitted as extends the pre-application closing described under Supplementary AGENCY: Forest Service, USDA. deadline to 5 p.m., local time to Information. September 6, 2011. ACTION: Notice of meeting. All comments, including names and FOR FURTHER INFORMATION CONTACT: addresses when provided, are placed in SUMMARY: Pursuant to the authorities in Mirna Reyes-Bible, Finance and Loan the record and are available for public the Federal Advisory Committee Act Analyst, Multi-Family Housing inspection and copying. The public may (Pub. L. 92–463) and under the Secure Preservation and Direct Loan Division, inspect comments received at 825 N. Rural Schools and Community Self- STOP 0781 (Room 1263–S), USDA Rural Humboldt Ave., Willows, CA 95988. Determination Act of 2000 (Pub. L. 106– Development, 1400 Independence Please call ahead to (530) 934–1269 to 393) the Beaverhead-Deerlodge National Avenue, SW., Washington, DC. 20250– facilitate entry into the building to view Forest’s Southwest Montana Resource 0781, telephone: (202) 720–1753 (this is comments. Advisory Committee will meet on not a toll free number.), or via e-mail: FOR FURTHER INFORMATION CONTACT: Wednesday, September 14, 2011, from 9 [email protected]. If you Randy Jero, Committee Coordinator, a.m. until 5 p.m., in Dillon, Montana. have questions regarding Net Zero USDA, Mendocino National Forest, The purpose of the meeting is to review Energy Consumption and Energy Grindstone Ranger District, 825 N. funding proposals for Title II funding. Generation please contact Carlton Humboldt Ave., Willows, CA 95988. DATES: Wednesday, September 14, 2011, Jarratt, Finance and Loan Analyst, (530) 934–1269; e-mail [email protected]. from 9 a.m. until 5 p.m. Multi-Family Housing Preservation and Individuals who use Direct Loan Division at (804) 287–1524 telecommunication devices for the deaf ADDRESSES: The meeting will be held at or via e-mail: (TDD) may call the Federal Information the Beaverhead-Deerlodge Forest [email protected]. Relay Service (FIRS) at 1–800–877–8339 Headquarters located at 420 Barrett between 8 a.m. and 8 p.m., Eastern Street, Dillon, Montana (MT 59725). Correction Standard Time, Monday through Friday. FOR FURTHER INFORMATION CONTACT: In the notice, beginning on page Requests for reasonable accomodation Patty Bates, Committee Coordinator, 39813 in the issue of July 7, 2011, make for access to the facility or proceedings Beaverhead-Deerlodge National Forest, the following corrections:

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In the third column for page 39813, COMMISSION ON CIVIL RIGHTS COMMISSION ON CIVIL RIGHTS correct the DATES section to read: Agenda and Notice of Public Meeting Agenda and Notice of Public Meeting DATES: The deadline for receipt of all pre-applications in response to this is of the Texas Advisory Committee of the Colorado State Advisory 5:00 p.m., local time to the appropriate Committee Notice is hereby given, pursuant to Rural Development State Office on September 6, 2011. * * * the provisions of the rules and Notice is hereby given, pursuant to regulations of the U.S. Commission on the provisions of the rules and In the third column for page 39817, Civil Rights (Commission), and the regulations of the U.S. Commission on paragraph (a) entitled New Construction Federal Advisory Committee Act Civil Rights (Commission), and the Energy Conservation; replace the entire (FACA), that a meeting of the Texas Federal Advisory Committee Act paragraph (a) with the following: Advisory Committee (Committee) to the (FACA), that a meeting of the Colorado (a) Energy Conservation for New Commission will convene on Thursday, State Advisory Committee to the Construction (maximum 32 points). September 15, 2011, at 1:30 p.m. and Commission will convene at 10 a.m. New construction projects may be adjourn at approximately 4:30 p.m. at (MDT) on Monday, September 12, 2011, eligible for up to 32 points when the the Fretz Park Branch Library, 6990 Belt at Denver Place, 999 18th Street, 2nd pre-application includes a written Line Road, Dallas, TX 75234. The Floor Conference Room South Tower, certification by the applicant to participate in the following energy purpose of the meeting is for the Denver, CO 80202. The purpose of the efficiency programs. The points will be Committee to discuss its past work on meeting is to select a project topic. allocated as follows: human trafficking and future Committee Members of the public are entitled to activity. (1) Participation in the Department of submit written comments; the Energy’s Energy Star for Homes program Members of the public are entitled to comments must be received in the (10 points). http://www.energystar.gov/ submit written comments. The regional office within 30 days of the index.cfm?c=bldrs_lenders_raters.nh_ comments must be received in the meeting. Written comments may be multifamily_units. Western Regional Office by October 14, mailed to the Rocky Mountain Regional (2) Participation in the Green 2011. The mailing address is Western Office, U.S. Commission on Civil Rights, Communities program by the Enterprise Regional Office, U.S. Commission on 999–18th Street, Suite 1380S, Denver, Community Partners. (10 points) Civil Rights, 300 N. Los Angeles St., CO 80202. They may be faxed to (303) http://www.enterprisecommunity.org. Suite 2010, Los Angeles, CA 90012. 866–1050, or e-mailed to (3) Participation in one of the Persons wishing to e-mail their [email protected]. Persons who desire following two programs will be awarded comments may do so to additional information may contact the points for certification. [email protected]. Persons that desire Rocky Mountain Regional Office at (303) additional information should contact 866–1040. Note: Each program has four levels of certification. State the level of certification Angelica Trevino, Administrative Records generated from this meeting that the applicant plans will achieve in their Assistant, Western Regional Office, at may be inspected and reproduced at the certification: (213) 894–3437. Rocky Mountain Regional Office, as • LEED for Homes program by the United Hearing-impaired persons who will they become available, both before and States Green Building Council (USGBC): http://www.usgbc.org/homes. attend the meeting and require the after the meeting. Persons interested in Æ Certified Level (4 points), OR services of a sign language interpreter the work of this advisory committee are Æ Silver Level (6 points), OR should contact the Regional Office at advised to go to the Commission’s Web Æ Gold Level (8 points), OR least ten (10) working days before the site, http://www.usccr.gov, or to contact Æ Platinum Level (10 points), OR scheduled date of the meeting. the Rocky Mountain Regional Office at • The National Association of Home the above e-mail or street address. Builders (NAHB) ICC 700–2008 National Records generated from this meeting Green Building Standard TM: http:// may be inspected and reproduced at the Deaf or hearing-impaired persons who www.nahb.org. Western Regional Office, as they become will attend the meeting(s) and require Æ Bronze Level (4 points), OR available, both before and after the the services of a sign language Æ Silver Level (6 points), OR meeting. Persons interested in the work interpreter should contact the Rocky Æ Gold Level (8 points), OR of this advisory committee are advised Mountain Regional Office at least ten Æ Emerald Level (10 points). to go to the Commission’s Web site, (10) working days before the scheduled (4) Participation in local green/energy http://www.usccr.gov, or to contact the date of the meeting. efficient building standards; Applicants, Western Regional Office at the above e- The meeting will be conducted who participate in a city, county or mail or street address. pursuant to the provisions of the rules municipality program, will receive an The meeting will be conducted and regulations of the Commission and additional 2 points. The applicant pursuant to the provisions of the rules FACA. should be aware of and look for and regulations of the Commission and additional requirements that are Dated in Washington, DC, August 25, 2011. FACA. sometimes embedded in the third-party Peter Minarik, program’s rating and verification Dated in Washington, DC, August, 24, Acting Chief, Regional Programs systems. (2 points) 2011. Coordination Unit. Dated: August 23, 2011. Peter Minarik, [FR Doc. 2011–22129 Filed 8–29–11; 8:45 am] Robert Lewis, Acting Chief, Regional Programs BILLING CODE 6335–01–P Acting Administrator, Housing and Coordination Unit. Community Facilities Programs. [FR Doc. 2011–22024 Filed 8–29–11; 8:45 am] [FR Doc. 2011–22133 Filed 8–29–11; 8:45 am] BILLING CODE 6335–01–P BILLING CODE 3410–XV–P

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DEPARTMENT OF COMMERCE that the fair is a good marketing DEPARTMENT OF COMMERCE opportunity for U.S. companies. International Trade Administration International Trade Administration II. Method of Collection Proposed Information Collection; [A–423–808, A–580–831, A–791–805, A–583– Comment Request; Trade Fair The application is sent by request to 830, C–791–806] Certification Program Application organizers of international trade fairs. Applicants submit completed Continuation of Antidumping and Countervailing Duty Orders: Stainless AGENCY: International Trade applications to CS via express mail. Administration, Commerce. Steel Plate in Coils From Belgium, the ACTION: Notice. III. Data Republic of Korea, South Africa, and Taiwan SUMMARY: The Department of OMB Control Number: 0625–0130. AGENCY: Import Administration, Commerce, as part of its continuing Form Number(s): ITA–4100P. effort to reduce paperwork and International Trade Administration, Type of Review: Regular submission. respondent burden, invites the general Department of Commerce. public and other Federal agencies to Affected Public: Business or other for- SUMMARY: As a result of the take this opportunity to comment on profit organizations. determinations by the Department of proposed and/or continuing information Estimated Number of Respondents: Commerce (the Department) that collections, as required by the 96. revocation of the antidumping duty Paperwork Reduction Act of 1995. (AD) orders on stainless steel plate in Estimated Time Per Response: 3 DATES: Written comments must be coils (SSPC) from Belgium, the Republic submitted on or before October 31, hours. of Korea (Korea), South Africa, and 2011. Estimated Total Annual Burden Taiwan would likely lead to continuation or recurrence of dumping, ADDRESSES: Direct all written comments Hours: 288. that revocation of the countervailing to Diana Hynek, Departmental Estimated Total Annual Cost to duty (CVD) order on SSPC from South Paperwork Clearance Officer, Public: $5,700. Africa would likely lead to continuation Department of Commerce, Room 6616, or recurrence of a countervailable 14th and Constitution Avenue, NW., IV. Request for Comments subsidy, and the determinations by the Washington, DC 20230 (or via the Comments are invited on: (a) Whether Internet at [email protected]). International Trade Commission (ITC) the proposed collection of information that revocation of these AD and CVD FOR FURTHER INFORMATION CONTACT: is necessary for the proper performance orders would likely lead to a Requests for additional information or of the functions of the agency, including continuation or recurrence of material copies of the information collection whether the information shall have injury to an industry in the United instrument and instructions should be practical utility; (b) the accuracy of the States, the Department is publishing a directed to Michael Thompson, Trade agency’s estimate of the burden notice of continuation of these AD Fair Certification Program, U.S. (including hours and cost) of the orders and CVD order. Commercial Service, Ronald Reagan proposed collection of information; (c) DATES Building, 1300 Pennsylvania Avenue, : Effective Date: August 30, 2011. NW., Suite 800 M, Washington, DC ways to enhance the quality, utility, and FOR FURTHER INFORMATION CONTACT: 20230, Phone number: (202) 482–0671; clarity of the information to be Elizabeth Eastwood (AD orders) or Eric Fax number: (202) 482–7800, or via e- collected; and (d) ways to minimize the Greynolds (CVD order), AD/CVD mail: [email protected]. burden of the collection of information Operations, Import Administration, SUPPLEMENTARY INFORMATION: on respondents, including through the International Trade Administration, use of automated collection techniques U.S. Department of Commerce, 14th I. Abstract or other forms of information Street and Constitution Avenue, NW., The Trade Fair Certification (TFC) technology. Washington, DC 20230; telephone: (202) Program is a service of the U.S. Comments submitted in response to 482–3874 and (202) 482–6071, respectively. Department of Commerce (DOC), U.S. this notice will be summarized and/or Commercial Service (CS) that provides included in the request for OMB SUPPLEMENTARY INFORMATION: DOC endorsement and support for high approval of this information collection; Background quality international trade fairs that are they also will become a matter of public organized by private-sector firms. The record. On June 2, 2010, the Department TFC Program seeks to broaden the base published the notice of initiation of the of U.S. firms, particularly new-to-market Dated: August 24, 2011. second sunset reviews of the AD and companies by introducing them to key Gwellnar Banks, CVD orders on SSPC from Belgium, international trade fairs where they can Management Analyst, Office of the Chief Italy, Korea, South Africa, and Taiwan achieve their export objectives. Those Information Officer. pursuant to sections 751(c) and 752 of objectives include one or more of the [FR Doc. 2011–22071 Filed 8–29–11; 8:45 am] the Tariff Act of 1930, as amended (the following: direct sales; identification of BILLING CODE 3510–FP–P Act), respectively. See Initiation of Five- local agents or distributors; market Year (‘‘Sunset’’) Review, 75 FR 30777 research and exposure; and joint (June 2, 2010). venture and licensing opportunities for As a result of its reviews, the their products and services. An Department determined that revocation application, Form ITA–4100P, is of the AD orders would likely lead to a required to make a determination that continuation or recurrence of dumping the trade fair organizer is qualified to and that revocation of the CVD order organize and manage U.S. exhibitions at would likely lead to continuation or an international trade fair, and to ensure recurrence of subsidization, and notified

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the ITC of the margins of dumping and 7220.20.10.15, 7220.20.10.60, public and other Federal agencies to the subsidy rates likely to prevail were 7220.20.10.80, 7220.20.60.05, take this opportunity to comment on the orders revoked. See Stainless Steel 7220.20.60.10, 7220.20.60.15, proposed and/or continuing information Plate in Coils From Belgium, Italy, 7220.20.60.60, 7220.20.60.80, collections, as required by the South Africa, South Korea, and Taiwan: 7220.90.00.10, 7220.90.00.15, Paperwork Reduction Act of 1995. Final Results of the Expedited Sunset 7220.90.00.60, and 7220.90.00.80. DATES: Written comments must be Reviews of the Antidumping Duty Although the HTSUS subheadings are submitted on or before October 31, Orders, 75 FR 61699 (Oct. 6, 2010); see provided for convenience and customs 2011. also Stainless Steel Plate in Coils From purposes, the written description of the South Africa: Final Results of Expedited merchandise subject to these orders is ADDRESSES: Direct all written comments Sunset Review, 75 FR 62103 (Oct. 7, dispositive. to Diana Hynek, Departmental 2010). Paperwork Clearance Officer, On August 15, 2011, the ITC Continuation of the Orders Department of Commerce, Room 6616, published its determination, pursuant to As a result of the determinations by 14th and Constitution Avenue, NW., sections 751(c) and 752 of the Act, that the Department and the ITC that Washington, DC 20230 (or via the revocation of the AD and CVD orders on revocation of these AD and CVD orders Internet at [email protected]). SSPC from Belgium, Korea, South would likely lead to a continuation or FOR FURTHER INFORMATION CONTACT: Africa, and Taiwan, would likely lead to recurrence of dumping or a Requests for additional information or a continuation or recurrence of material countervailable subsidy, and material copies of the information collection injury to an industry within a injury to an industry in the United instrument and instructions should be 1 reasonably foreseeable time. See States, pursuant to section 751(d)(2) of directed to Marlin Perkins, 301–817– Stainless Steel Plate From Belgium, the Act, the Department hereby orders 4523 or [email protected] or Italy, Korea, South Africa, and Taiwan, the continuation of the AD and CVD Paul Seymour, 301–817–4521 or 76 FR 50495 (Aug. 15, 2011), and orders on SSPC from Belgium, Korea, [email protected]. Stainless Steel Plate in Coils from South Africa, and Taiwan. U.S. Customs Belgium, Italy, Korea, South Africa, and and Border Protection will continue to SUPPLEMENTARY INFORMATION: Taiwan (Inv. Nos. 701–TA–379 and collect antidumping duty cash deposits I. Abstract 731–TA–788, 790–793 (Second Review), at the rates in effect at the time of entry USITC Publication 4248, Aug. 2011). for all imports of subject merchandise. This request is for an extension of a currently approved collection. NOAA Scope of the Orders The effective date of the continuation of the orders will be the date of asks people who operate ground Stainless steel is an alloy steel publication in the Federal Register of receiving stations that receive data from containing, by weight, 1.2 percent or this notice of continuation. Pursuant to NOAA satellites to complete a less of carbon and 10.5 percent or more sections 751(c)(2) and 751(c)(6) of the questionnaire about the types of data of chromium, with or without other Act, the Department intends to initiate received, its use, the equipment elements. The subject plate products are the next five-year review of these orders involved, and similar subjects. The data flat-rolled products, 254 mm or over in not later than 30 days prior to the fifth obtained are used by NOAA for short- width and 4.75 mm or more in anniversary of the effective date of term operations and long-term planning. thickness, in coils, and annealed or continuation. Collection of this data assists in otherwise heat treated and pickled or These five-year (sunset) reviews and complying with the terms of otherwise descaled. The subject plate this notice are in accordance with Memorandum of Understanding (MOU) may also be further processed (e.g., section 751(c) of the Act and published with the World Meteorological cold-rolled, polished, etc.) provided that pursuant to section 777(i)(1) of the Act. Organization: United States Department it maintains the specified dimensions of of Commerce, National Oceanic and Dated: August 24, 2011. plate following such processing. Atmospheric Administration (NOAA) Excluded from the scope of the orders Ronald K. Lorentzen, on area of common interest (2008). are the following: (1) Plate not in coils, Deputy Assistant Secretary for Import (2) plate that is not annealed or Administration. II. Method of Collection otherwise heat treated and pickled or [FR Doc. 2011–22151 Filed 8–29–11; 8:45 am] The information is collected via an otherwise descaled, (3) sheet and strip, BILLING CODE 3510–DS–P online questionnaire. and (4) flat bars. The merchandise subject to the orders III. Data DEPARTMENT OF COMMERCE is currently classifiable in the OMB Control Number: 0648–0227. Harmonized Tariff Schedule of the United States (HTSUS) at subheadings: National Oceanic and Atmospheric Form Number: None. 7219.11.00.30, 7219.11.00.60, Administration Type of Review: Regular submission 7219.12.00.06, 7219.12.00.21, (extension of a currently approved 7219.12.00.26, 7219.12.00.51, Proposed Information Collection; collection). 7219.12.00.56, 7219.12.00.66, Comment Request; NOAA Satellite Affected Public: Not-for-profit 7219.12.00.71, 7219.12.00.81, Ground Station Customer institutions; business or other for-profit 7219.31.00.10, 7219.90.00.10, Questionnaire organizations, individuals or households; federal government; state, 7219.90.00.20, 7219.90.00.25, AGENCY: National Oceanic and local or tribal government. 7219.90.00.60, 7219.90.00.80, Atmospheric Administration (NOAA). 7220.11.00.00, 7220.20.10.10, Estimated Number of Respondents: ACTION: Notice. 300. 1 The ITC also determined that revocation of the SUMMARY: The Department of Estimated Time Per Response: 5 AD order on SSPC from Italy would not be likely minutes. to lead to continuation or recurrence of material Commerce, as part of its continuing injury to an industry in the United States within a effort to reduce paperwork and Estimated Total Annual Burden reasonably foreseeable time. respondent burden, invites the general Hours: 25.

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Estimated Total Annual Cost to request for regulations governing the commercial fishing) if certain findings Public: $0 in capital and recordkeeping/ incidental taking of marine mammals are made and regulations are issued or, reporting costs. and inviting information, suggestions, if the taking is limited to harassment, and comments on the Navy’s notice of a proposed authorization is IV. Request for Comments application and request. provided to the public for review. Comments are invited on: (a) Whether DATES: Comments and information must Authorization for incidental takings the proposed collection of information be received no later than September 29, shall be granted if NMFS finds that the is necessary for the proper performance 2011. taking will have a negligible impact on of the functions of the agency, including ADDRESSES: Comments on the the species or stock(s), will not have an whether the information shall have application should be addressed to P. unmitigable adverse impact on the practical utility; (b) the accuracy of the availability of the species or stock(s) for agency’s estimate of the burden Michael Payne, Chief, Permits, Conservation and Education Division, subsistence uses (where relevant), and if (including hours and cost) of the the permissible methods of taking and proposed collection of information; (c) Office of Protected Resources, National Marine Fisheries Service, 1315 East- requirements pertaining to the ways to enhance the quality, utility, and mitigation, monitoring and reporting of clarity of the information to be West Highway, Silver Spring, MD 20910–3225. The mailbox address for such taking are set forth. collected; and (d) ways to minimize the NMFS has defined ‘‘negligible burden of the collection of information providing e-mail comments is [email protected]. NMFS is not impact’’ in 50 CFR 216.103 as ‘‘ * * * on respondents, including through the an impact resulting from the specified use of automated collection techniques responsible for e-mail comments sent to addresses other than the one provided activity that cannot be reasonably or other forms of information expected to, and is not reasonably likely technology. here. Comments sent via e-mail, including all attachments, must not to, adversely affect the species or stock Comments submitted in response to through effects on annual rates of this notice will be summarized and/or exceed a 10-megabyte file size. Instructions: All comments received recruitment or survival.’’ included in the request for OMB With respect to military readiness approval of this information collection; are a part of the public record and will generally be posted to http:// activities, the MMPA defines they also will become a matter of public ‘‘harassment’’ as: record. www.nmfs.noaa.gov/pr/permits/ incidental.htm#applications without (i) any act that injures or has the significant Dated: August 24, 2011. change. All Personal Identifying potential to injure a marine mammal or Gwellnar Banks, Information (for example, name, marine mammal stock in the wild [Level A Management Analyst, Office of the Chief address, etc.) voluntarily submitted by Harassment]; or (ii) any act that disturbs or Information Officer. is likely to disturb a marine mammal or the commenter may be publicly marine mammal stock in the wild by causing [FR Doc. 2011–22070 Filed 8–29–11; 8:45 am] accessible. Do not submit Confidential disruption of natural behavioral patterns, BILLING CODE 3510–HR–P Business Information or otherwise including, but not limited to, migration, sensitive or protected information. surfacing, nursing, breeding, feeding, or FOR FURTHER INFORMATION CONTACT: sheltering, to a point where such behavioral DEPARTMENT OF COMMERCE Jeannine Cody, Office of Protected patterns are abandoned or significantly altered [Level B Harassment]. National Oceanic and Atmospheric Resources, NMFS, (301) 427–8401. SUPPLEMENTARY INFORMATION: Administration Summary of Request RIN 0648–XA638 Availability On August 17, 2011, NMFS received An electronic copy of the Navy’s an application from the Navy requesting Taking and Importing Marine application may be obtained by writing authorization to take individuals of 94 Mammals; Taking Marine Mammals to the address specified above (See species of marine mammals (70 Incidental to U.S. Navy Operations of ADDRESSES), telephoning the contact cetaceans and 24 pinnipeds), by Surveillance Towed Array Sensor listed above (see FOR FURTHER harassment, incidental to upcoming System Low Frequency Active Sonar INFORMATION CONTACT), or visiting the training, testing, and routine military AGENCY: National Marine Fisheries internet at: http://www.nmfs.noaa.gov/ operations (all categorized as military Service (NMFS), National Oceanic and pr/permits/incidental.htm#applications. readiness activities) using SURTASS Atmospheric Administration (NOAA), The Navy released a draft Supplemental LFA sonar over the course of five years. Commerce. Environmental Impact Statement The Navy states that these training, ACTION: Notice; receipt of application for (DSEIS) for the employment of testing, and routine military activities letter of authorization; request for SURTASS LFA sonar on August 19, may expose some of the marine comments and information. 2011. A copy of the DSEIS, which mammals present in the operational would also support NMFS’ proposed areas to sound from low-frequency SUMMARY: NMFS has received a request rulemaking under the MMPA, is active sonar sources. Because marine from the U.S. Navy (Navy) for available at http://www.surtass-lfa- mammals may be harassed due to noise authorization to take, by harassment, eis.com. disturbance incidental to the use of marine mammals incidental to SURTASS LFA sonar during training, conducting operations of Surveillance Background testing, and routine military operations, Towed Array Sensor System Sections 101(a)(5)(A) and (D) of the the Navy requests authorization to take (SURTASS) Low Frequency Active Marine Mammal Protection Act of 1972, individuals of 94 species of marine (LFA) sonar for the period beginning as amended (MMPA; 16 U.S.C. 1361 et mammals by Level B Harassment. August 2012 and ending August 2017. seq.) direct the Secretary of Commerce Further, the Navy states that the Pursuant to the implementing (Secretary) to allow, upon request, the probability of taking marine mammals regulations of the Marine Mammal incidental, but not intentional taking of by Level A Harassment is less than Protection Act (MMPA), NMFS is marine mammals by U.S. citizens who 0.001 percent. However, because the announcing our receipt of the Navy’s engage in a specified activity (other than probability is not zero, the Navy has

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included Level A harassment in its DEPARTMENT OF COMMERCE and to ascertain what types of new and authorization request. different services the PTRCs should This will be NMFS’ third rule making United States Patent and Trademark offer, the USPTO is requiring the centers for SURTASS LFA sonar operations Office to provide metrics on the PTRC under the MMPA. NMFS published the outreach services and use of the patent first rule effective from August 2002 Patent and Trademark Resource and trademark services. through August 2007 on July 16, 2002 Centers Metrics Recognition as a PTRC is authorized (67 FR 46712), and published the under the provisions of 35 U.S.C. ACTION: Proposed collection; comment second rule effective from August 2007 request. 2(a)(2), which provides that the USPTO through August 2012 on August 21, shall be responsible for disseminating to 2007 (72 FR 46846). For this third rule SUMMARY: The United States Patent and the public information with respect to making, the Navy is proposing to Trademark Office (USPTO), as part of its patents and trademarks. In order to be conduct the same types of sonar continuing effort to reduce paperwork designated as a PTRC, libraries must activities in the proposed rule making as and respondent burden, invites the fulfill the following requirements: assist they have conducted over the past nine general public and other Federal the public in the efficient use of patent years in the previous two rule makings. agencies to take this opportunity to and trademark information resources; Specified Activities comment on this new information provide free access to patent and collection, as required by the Paperwork trademark resources provided by the The Navy proposes to deploy the Reduction Act of 1995, Public Law 104– USPTO; provide metrics on the use of system on a maximum of four U.S. 13 (44 U.S.C. 3506(c)(2)(A)). patent and trademark services provided Naval ships: the USNS ABLE, the USNS DATES: Written comments must be by the member library as stipulated by EFFECTIVE, the USNS IMPECCABLE the USPTO; provide metrics on outreach and the USNS VICTORIOUS) in certain submitted on or before October 31, 2011. efforts conducted by the member library areas of the Pacific, Atlantic, and Indian as stipulated by the USPTO; and send Oceans and the Mediterranean Sea. ADDRESSES: You may submit comments representatives to attend the USPTO- Nominal at-sea missions for each vessel by any of the following methods: hosted PTRC training seminars. • using SURTASS LFA sonar would last E-mail: Since the PTRC requirements up to 294 days, with 240 days of active [email protected]. stipulate that the participating libraries sonar transmissions and 54 days of Include ‘‘Patent and Trademark must submit information (metrics) in transit. The maximum number of actual Resource Centers Metrics comment’’ in order to be designated as a PTRC, the transmission hours per vessel would not the subject line of the message. • USPTO is submitting this new exceed 432 hours annually. The Mail: Susan K. Fawcett, Records information collection for review under application describes the activity types, Officer, Office of the Chief Information the PRA. The information collected will the equipment and platforms involved, Officer, United States Patent and enable the USPTO to more effectively and the duration and potential locations Trademark Office, P.O. Box 1450, train the PTRC staff who, in turn, of the specified activities. Alexandria, VA 22313–1450. • provide assistance and training to Included within a larger suite of Federal Rulemaking Portal: http:// public customers in the areas of patent proposed mitigation measures for www.regulations.gov. and trademarks. As the PTRCs continue marine mammals that potentially could FOR FURTHER INFORMATION CONTACT: to move away from the physical be affected during SURTASS LFA sonar Requests for additional information distribution of hard copy information, operations, the Navy proposes to restrict should be directed to the attention of the USPTO is interested in what types the use of SURTASS LFA sonar such Martha Sneed, Director, Public Search of new and different services the PTRC that it will not operate in Arctic and Services Division, Office of the Chief of the future should offer its customers. Antarctic waters, and sound pressure Information Officer, United States Collection of this information will levels (SPL) will not exceed 180 μ Patent and Trademark Office, P.O. Box enable the USPTO to more effectively decibels (dB) re 1 Pa (rms) within 12 1451, Alexandria, VA 22313–1451, by service its current customers while nautical miles of any coastline or within telephone at 703–756–1236, or by e-mail planning for the future. designated offshore biologically to [email protected]. Additional The USPTO has developed a important areas for marine mammals. information about this collection is also worksheet to collect the metrics Information Solicited available at http://www.reginfo.gov concerning the use of the patent and under ‘‘Information Collection Review.’’ Interested persons may submit trademark services and the public information, suggestions, and comments SUPPLEMENTARY INFORMATION: outreach efforts from the libraries. On concerning the Navy’s request (see the USPTO’s behalf, the metrics will be I. Abstract collected on a quarterly basis through a ADDRESSES). NMFS will consider all information, suggestions, and comments The USPTO has undertaken a third-party vendor. The information will related to the Navy’s request and NMFS’ revitalization of the Patent and only be collected electronically. The potential development and Trademark Depository Library Program PTRCs will be given a password to input implementation of regulations to reflect the new 21st Century their information. electronic approach to customer governing the incidental taking of II. Method of Collection marine mammals by the Navy’s services. As a part of this revitalization, The metrics will be submitted SURTASS LFA sonar activities. the name will change to Patent and Trademark Resource Center Program electronically to the USPTO. Dated: August 24, 2011. and the nationwide network of libraries III. Data James H. Lecky, will be known as Patent and Trademark Director, Office of Protected Resources, Resource Centers (PTRCs). In addition, OMB Number: 0651–00xx. National Marine Fisheries Service. to enable the USPTO to more effectively Form Number(s): N/A. [FR Doc. 2011–22163 Filed 8–29–11; 8:45 am] train the PTRCs and the public to better Type of Review: New information BILLING CODE 3510–22–P use the tools and data available to them collection.

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Affected Public: Non-profit public approximately 30 minutes (0.50 librarians, at an estimated hourly rate of organizations. hours) to gather the necessary $27. This is the mean hourly wage for Estimated Number of Respondents: 81 information, prepare the worksheet, and librarians as reported in the 2009 libraries, for 324 responses per year. The submit it to the USPTO. Bureau of Labor Statistics. Therefore, USPTO estimates that there will be 81 Estimated Total Annual Respondent the USPTO estimates that the libraries reporting their metrics once per Burden Hours: 162 hours. respondent cost burden for this quarter, for a total of 324 responses per Estimated Total Annual Respondent collection will be approximately $4,374 Cost Burden: $4,374. The USPTO year. per year. Estimated Time per Response: The expects that the information in this USPTO estimates that it will take the collection will be prepared by

Estimated time Estimated Estimated Item for response annual annual burden (minutes) responses hours

PTRC Metric Worksheet ...... 30 324 162

Totals ...... 324 162

Estimated Total Annual Non-hour ACTION: Notice and request for Comments received will be posted Respondent Cost Burden: $0. There are comments. without change to http:// no fees or capital start-up, maintenance, www.regulations.gov, including any operation, or postage costs for this SUMMARY: In compliance with Section personal information provided. To collection. 3506(c)(2)(A) of the Paperwork confirm receipt of your comment(s), Reduction Act of 1995 (44 U.S.C. IV. Request for Comments please check http://www.regulations.gov Chapter 35), DoD announces the approximately two to three days after Comments are invited on: (a) Whether proposed extension of a public submission to verify posting (except the proposed collection of information information collection requirement and allow 30 days for posting of comments is necessary for the proper performance seeks public comment on the provisions submitted by mail). of the functions of the agency, including thereof. DoD invites comments on: (a) Whether the proposed collection of FOR FURTHER INFORMATION CONTACT: whether the information shall have Manuel Quinones, (703) 602–8383. The practical utility; (b) the accuracy of the information is necessary for the proper performance of the functions of the information collection requirements agency’s estimate of the burden addressed in this notice are available (including hours and cost) of the agency, including whether the electronically on the World Wide Web proposed collection of information; (c) information will have practical utility; at: http://www.acq.osd.mil/dpap/dars/ ways to enhance the quality, utility, and (b) the accuracy of the estimate of the dfarspgi/current/index.html. clarity of the information to be burden of the proposed information collection; (c) ways to enhance the Paper copies are available from collected; and (d) ways to minimize the Manuel Quinones, OUSD(AT&L)DPAP/ burden of the collection of information quality, utility, and clarity of the DARS, 3060 Defense Pentagon, Room on respondents, e.g., the use of information to be collected; and (d) 3B855, Washington, DC 20301–3060. automated collection techniques or ways to minimize the burden of the other forms of information technology. information collection on respondents, SUPPLEMENTARY INFORMATION: Comments submitted in response to including the use of automated Title and OMB Number: Defense this notice will be summarized or collection techniques or other forms of Federal Acquisition Regulation included in the request for OMB information technology. The Office of Supplement (DFARS) Part 217, Special approval of this information collection; Management and Budget (OMB) has Contracting Methods, and related they also will become a matter of public approved this information collection provisions and clauses at DFARS record. requirement for use through December 252.217–7012, Liability and Insurance; DFARS 252.217–7026, Identification of Dated: August 24, 2011. 31, 2011. DoD proposes that OMB extend its approval for three additional Sources of Supply; and 252.217–7028, Susan K. Fawcett, years. Over and Above Work; OMB Control Records Officer, USPTO, Office of the Chief Number 0704–0214. Information Officer. DATES: DoD will consider all comments received by October 31, 2011. Needs and Uses: DFARS Part 217 [FR Doc. 2011–22044 Filed 8–29–11; 8:45 am] ADDRESSES: You may submit comments, prescribes policies and procedures for BILLING CODE 3510–16–P identified by OMB Control Number acquiring supplies and services by 0704–0214, using any of the following special contracting methods. methods: Contracting officers use the required DEPARTMENT OF DEFENSE Æ Regulations.gov: http:// information as follows: www.regulations.gov. Follow the The clause at DFARS 252.217–7012 is Defense Acquisition Regulations used in master agreements for repair System instructions for submitting comments. Æ E-mail: [email protected]. Include and alteration of vessels. Contracting Information Collection Requirement; OMB Control Number 0704–0214 in the officers use the information required by Defense Federal Acquisition subject line of the message. paragraph (d) of the clause to determine Æ Fax: (703) 602–0350. that the contractor is adequately Regulation Supplement; Special Æ Contracting Methods Mail: Defense Acquisition insured. This requirement supports Regulations System, Attn: Manuel prudent business practice, because it AGENCY: Defense Acquisition Quinones, OUSD(AT&L)DPAP/DARS, limits the Government’s liability as a Regulations System, Department of 3060 Defense Pentagon, Room 3B855, related party to the work the contractor Defense (DoD). Washington, DC 20301–3060. performs. Contracting officers use the

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information required by paragraphs (f) Paragraph (d)(3) of the clause at DEPARTMENT OF ENERGY and (g) of the clause to keep informed DFARS 252.217–7012 requires the of lost or damaged property for which contractor to show evidence of Agency Information Collection the Government is liable, and to insurance under a master agreement for Extension determine the appropriate course of vessel repair and alteration. AGENCY: action for replacement or repair of the U.S. Department of Energy. Paragraphs (f) and (g) of the clause at property. ACTION: Submission for Office of Contracting officers use the DFARS 252.217–7012 require the Management and Budget (OMB) review; information required by the provision at contractor to notify the contracting comment request. DFARS 252.217–7026 to identify the officer of any property loss or damage apparently successful offeror’s sources for which the Government is liable, and SUMMARY: The Department of Energy of supply so that competition can be to submit to the contracting officer a (DOE) has submitted an information enhanced in future acquisitions. This request for reimbursement of the cost of collection request to the OMB for collection complies with 10 U.S.C. replacement or repair with supporting extension under the provisions of the 2384, Supplies: identification of documentation. Paperwork Reduction Act of 1995. The information collection requests a three- supplier and sources, which requires The provision at 252.217–7026 the contractor to identify the actual year extension of its Legal Collection, requires the apparently successful OMB Control Number 1910–0800. The manufacturer or all sources of supply offeror to identify its sources of supply. for supplies furnished under contract to proposed collection will enable DOE to DoD. Paragraphs (c) and (e) of the clause at continue to maintain DOE control and Contracting officers use the DFARS 252.217–7028 require the oversight of DOE contractor’s invention information required by the clause at contractor to submit to the contracting reporting and related matters. 252.217–7028 to determine the extent of officer a work request and a proposal for DATES: Comments regarding this ‘‘over and above’’ work before the work ‘‘over and above’’ work. collection must be received on or before commences. This requirement allows Paragraph (a) of DFARS 217.7004 September 29, 2011. If you anticipate the Government to review the need for requires that solicitations which that you will be submitting comments, pending work before the contractor contemplate exchange (trade-in) of but find it difficult to do so within the begins performance. personal property and application of the period of time allowed by this notice, Contracting officers use the exchange allowance to the acquisition of please advise the OMB Desk Officer of information required by DFARS similar property (see 40 U.S.C. 481), your intention to make a submission as 217.7004(a) where offerors shall state shall include a request for offerors to soon as possible. The Desk Officer may prices for the new items being acquired state prices for the new items being be telephoned at 202–395–4650. both with and without any exchange acquired both with and without any ADDRESSES: Written comments should (trade-in allowance). exchange (trade-in allowance). be sent to the DOE Desk Officer, Office Contracting officers use the of Information and Regulatory Affairs, information from 217.7404–3(b), to Paragraph (b) of 217.7404–3, Office of Management and Budget, New evaluate a contractor’s ‘‘qualifying Undefinitized Contract Actions, requires Executive Office Building, Room 10102, proposal’’ in accordance with the the contractor to submit a ‘‘qualifying 735 17th Street, NW., Washington, DC definitization schedule. This proposal’’ in accordance with the 20503, and to John Lucas, U.S. requirement will require receipt of a definitization schedule. A qualifying Department of Energy, Washington, DC qualifying proposal containing proposal is defined in 217.7401(c) as a 20585; (202) 586–2802 (telephone); sufficient information for the DoD to do proposal containing sufficient (202) 586–2805 (fax); complete a meaningful analyses and information for the DoD to do complete [email protected]. audit of the information in the proposal, and meaningful analyses and audits of FOR FURTHER INFORMATION CONTACT: John and any other information that the the information in the proposal, and any T. Lucas, U.S. Department of Energy, contracting officer has determined DoD other information that the contracting needs to review in connection with the Washington, DC, 20585; (202) 586–2802 officer has determined DoD needs to (telephone); (202) 586–2805 (fax); contract. review in connection with the contract. Contracting officers use the [email protected]. Paragraph (d) of 217.7505, information from 217.7505(d), where SUPPLEMENTARY INFORMATION: This Acquisition of Replenishment Parts the offeror supply’s with its proposal, information collection request contains: price and quantity data on any permits contracting officers to include (1) OMB No. 1910–0800; (2) Information Government orders for the in sole-source solicitations that include Collection Request Title: Legal replenishment part issued within the acquisition of replenishment parts, a Collection; (3) Type of Request: most recent 12 months. provision requiring that the offeror Renewal; (4) Purpose: To continue to Affected Public: Businesses or other supply with its proposal, price and maintain DOE control and oversight of for-profit entities. quantity data on any Government orders DOE and its contractor’s invention Annual Burden Hours: 861,942. for the replenishment part issued within reporting and related matters. Likely Number of Respondents: 51,839. the most recent 12 months (see 10 respondents are DOE contractors; (5) Responses per Respondent: 1.7. U.S.C. 2452 note, Spare Parts and Annual Responses: 88,091. Annual Estimated Number of Replacement Equipment, Publication of Average Burden per Response: 9.78 Respondents: 1817; (6) Annual hours. Regulations). Estimated Number of Total Responses: Frequency: On occasion. 1817; (7) Annual Estimated Number of Mary Overstreet, Burden Hours: 15,127; (8) Annual Summary of Information Collection Editor, Defense Acquisition Regulations Estimated Reporting and Recordkeeping System. Each provision or clause requires the Cost Burden: $1,034,525. [FR Doc. 2011–22128 Filed 8–29–11; 8:45 am] offeror or contractor to submit certain Statutory Authority: 42 U.S.C. 5908 (a), (b) information: BILLING CODE 5001–08–P and (c); 10 CFR part 781; 10 CFR 784.

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Issued in Washington, DC, on August 24, the export authority contained in Order DEPARTMENT OF ENERGY 2011. No. EA–184–A for a five-year term. Environmental Management Site- Robert J. Marchick, The electric energy that MSCG Specific Advisory Board, Idaho Acting Assistant General Counsel for proposes to export to Mexico would be Technology Transfer and Intellectual National Laboratory Property, U.S. Department of Energy, surplus energy purchased from electric Washington, DC 20585. utilities, Federal power marketing AGENCY: Department of Energy. [FR Doc. 2011–22118 Filed 8–29–11; 8:45 am] agencies, and other entities within the ACTION: Notice of Open Meeting. United States. The existing international BILLING CODE 6450–01–P transmission facilities to be utilized by SUMMARY: This notice announces a MSCG have previously been authorized meeting of the Environmental DEPARTMENT OF ENERGY by Presidential permits issued pursuant Management Site-Specific Advisory to Executive Order 10485, as amended, Board (EM SSAB), Idaho National [OE Docket No. EA–184–B] and are appropriate for open access Laboratory. The Federal Advisory transmission by third parties. Committee Act (Pub. L. No. 92–463, 86 Application to Export Electric Energy; Stat. 770) requires that public notice of Procedural Matters: Any person Morgan Stanley Capital Group Inc. this meeting be announced in the desiring to be heard in this proceeding Federal Register. AGENCY: Office of Electricity Delivery should file a comment or protest to the and Energy Reliability, DOE. application at the address provided DATES: Wednesday, September 14, 2011 ACTION: Notice of Application. above. Protests should be filed in 8 a.m.–5 p.m. Opportunities for public accordance with Rule 211 of the Federal participation will be from 10:15 to 10:30 SUMMARY: Morgan Stanley Capital Group Energy Regulatory Commission’s (FERC) a.m. and from 2:15 to 2:30 p.m. These Inc. (MSCG) has applied to renew its times are subject to change; please Rules of Practice and Procedures (18 authority to transmit electric energy contact the Federal Coordinator (below) CFR 385.211). Any person desiring to from the United States to Mexico for confirmation of times prior to the become a party to these proceedings pursuant to section 202(e) of the Federal meeting. Power Act. should file a motion to intervene at the above address in accordance with FERC ADDRESSES: Sun Valley Inn, 1 Sun DATES: Comments, protests, or motions Rule 214 (385.214). Fifteen copies of Valley Road, Sun Valley, Idaho 83402. to intervene must be submitted on or each comment, protest, or motion to FOR FURTHER INFORMATION CONTACT: before September 29, 2011. intervene should be filed with DOE on Robert L. Pence, Federal Coordinator, ADDRESSES: Comments, protests, or or before the date listed above. Department of Energy, Idaho Operations motions to intervene should be Office, 1955 Fremont Avenue, MS– addressed to: Christopher Lawrence, Comments on the MSCG application to export electric energy to Mexico 1203, Idaho Falls, Idaho 83415. Phone Office of Electricity Delivery and Energy (208) 526–6518; Fax (208) 526–8789 or Reliability, Mail Code: OE–20, U.S. should be clearly marked with Docket No. EA–184–B. Additional copies (one e-mail: [email protected] or visit the Department of Energy, 1000 Board’s Internet home page at: http:// each) are to be filed directly with Independence Avenue, SW., inlcab.energy.gov/. Washington, DC 20585–0350. Because Edward J. Zabrocki, Managing Director SUPPLEMENTARY INFORMATION: of delays in handling conventional mail, and Counsel, Morgan Stanley & Co. Inc., Purpose of the Board: The purpose of it is recommended that documents be 2000 Westchester Avenue, Purchase, NY the Board is to make recommendations transmitted by overnight mail, by 10577 AND Daniel E. Frank and Jennifer to DOE–EM and site management in the electronic mail to Kubicek, Sutherland Asbill & Brennan areas of environmental restoration, [email protected], or by LLP, 1275 Pennsylvania Avenue, NW., waste management, and related facsimile to 202–586–8008. Washington, DC 20004. A final decision will be made on this application after activities. FOR FURTHER INFORMATION CONTACT: Tentative Topics (agenda topics may the environmental impacts have been Christopher Lawrence (Program Office) change up to the day of the meeting; evaluated pursuant to DOE’s National 202–586–5260. please contact Robert L. Pence for the Environmental Policy Act Implementing SUPPLEMENTARY INFORMATION: Exports of most current agenda): Procedures (10 CFR part 1021) and a electricity from the United States to a • Recent Public Involvement and foreign country are regulated by the determination is made by DOE that the Outreach. Department of Energy (DOE) pursuant to proposed action will not have an • Idaho EM Cleanup Status. sections 301(b) and 402(f) of the adverse impact on the reliability of the • Mission-Relevant Facility Transfers. Department of Energy Organization Act U.S. electric power supply system. • New Advanced Mixed Waste (42 U.S.C. 7151(b), 7172(f)) and require Copies of this application will be Treatment Project (AMWTP) Contract. authorization under section 202(e) of made available, upon request, for public • Idaho Cleanup Project (ICP) the FPA (16 U.S.C. 824a(e)). inspection and copying at the address Contract Extension. On July 23, 1998, DOE issued Order provided above, by accessing the • EM Organizational Changes. No. EA–184, authorizing MSCG to program Web site at http://energy.gov/ American Recovery and Reinvestment transmit electric energy from the United node/11845, or by e-mailing Odessa Act (ARRA) Status. States to Mexico as a power marketer for Hopkins at [email protected]. Public Participation: The EM SSAB, a two-year term using existing Idaho National Laboratory, welcomes Issued in Washington, DC, on August 24, international transmission facilities. the attendance of the public at its 2011. That Order expired on July 23, 2000. advisory committee meetings and will DOE renewed the MSCG export Brian Mills, make every effort to accommodate authorization on June 28, 2006 in Order Director, Permitting and Siting, Office of persons with physical disabilities or No. EA–184–A. That Order expired on Electricity Delivery and Energy Reliability. special needs. If you require special June 28, 2011. On June 20, 2011 MSCG [FR Doc. 2011–22116 Filed 8–29–11; 8:45 am] accommodations due to a disability, filed an application with DOE to renew BILLING CODE 6450–01–P please contact Robert L. Pence at least

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seven days in advance of the meeting at Energy on matters relating to oil and DEPARTMENT OF ENERGY the phone number listed above. Written natural gas, or the oil and natural gas statements may be filed with the Board industries. Office of Energy Efficiency and Renewable Energy either before or after the meeting. Tentative Agenda: Individuals who wish to make oral • [Case No. CAC–036] presentations pertaining to agenda items Call to Order and Introductory should contact Robert L. Pence at the Remarks, Publication of the Petition for Waiver address or telephone number listed • Remarks by the Honorable Steven From LG Electronics, Inc. and Granting above. The request must be received five Chu, Secretary of Energy, of the Interim Waiver From the days prior to the meeting and reasonable • Consideration of the Proposed Final Department of Energy Commercial provision will be made to include the Package Air Conditioner and Heat Report of the NPC Committee on presentation in the agenda. The Deputy Pump Test Procedures Resource Development, Designated Federal Officer is AGENCY: empowered to conduct the meeting in a • Progress Report of the NPC Office of Energy Efficiency and fashion that will facilitate the orderly Committee on Future Transportation Renewable Energy, Department of Energy. conduct of business. Individuals Fuels, wishing to make public comments will • ACTION: Notice of petition for waiver, Administrative Matters, granting of application for interim be provided a maximum of five minutes • to present their comments. This notice Discussion of Any Other Business waiver, and request for comments. is being published less than 15 days Properly Brought Before the National, Petroleum Council, SUMMARY: This notice announces receipt prior to the meeting date due to of and publishes a petition for waiver • programmatic issues that had to be Adjournment. from LG Electronics, Inc. (LG). The resolved prior to the meeting date. Public Participation: The meeting is petition for waiver (hereafter ‘‘petition’’) Minutes: Minutes will be available by open to the public. The Chair of the requests a waiver from the U.S. writing or calling Robert L. Pence, Council will conduct the meeting to Department of Energy (DOE) test Federal Coordinator, at the address and facilitate the orderly conduct of procedure applicable to commercial phone number listed above. Minutes business. Members of the public who package air-source and water-source will also be available at the following wish to make oral statements pertaining central air conditioners and heat pumps. Web site: http://inlcab.energy.gov/ The petition is specific to the variable pages/meetings.php. to agenda items should contact Ms. Nancy Johnson at the address or capacity Multi V III (commercial) multi- Issued at Washington, DC on August 24, telephone number listed above. Request split heat pump models specified in 2011. LG’s petition. Through this document, for oral statements must be received at Carol A. Matthews, DOE: (1) Solicits comments, data, and least three days prior to the meeting. Committee Management Officer. information with respect to the LG Those not able to attend the meeting or petition; and (2) announces the grant of [FR Doc. 2011–22114 Filed 8–29–11; 8:45 am] having insufficient time to address the BILLING CODE 6450–01–P an interim waiver to LG from the Council are invited to send a written existing DOE test procedure for the statement to [email protected]. Any member subject commercial multi-split air DEPARTMENT OF ENERGY of the public who wishes to file a conditioners and heat pumps. written statement to the Council will be DATES: DOE will accept comments, data, National Petroleum Council permitted to do so, either before or after and information with respect to the LG the meeting. AGENCY: Department of Energy, Office of petition until, but no later than Fossil Energy. Additionally, the meeting will also be September 29, 2011. ACTION: Notice of Open Meeting. available via live video webcast. The ADDRESSES: You may submit comments, link will be available at http:// identified by case number ‘‘CAC–036,’’ SUMMARY: This notice announces a www.npc.org. by any of the following methods: • Federal eRulemaking Portal:http:// meeting of the National Petroleum Transcripts: Transcripts of the www.regulations.gov. Follow the Council. The Federal Advisory meeting will be available by contacting Committee Act (Pub. L. 92–463, 86 Stat. instructions for submitting comments. Ms. Johnson at the address above, or 770) requires that public notice of this • E-mail: [email protected]. meeting be announced in the Federal [email protected]. Register. Issued at Washington, DC, on August 23, Include the case number [CAC–036] in 2011. the subject line of the message. DATES: Thursday, September 15, 2011, 9 • Carol A. Matthews, Mail: Ms. Brenda Edwards, U.S. a.m. to 12 noon (E.D.T.) Department of Energy, Building Deputy Committee Management Officer. ADDRESSES: St. Regis Hotel, 923 16th Technologies Program, Mailstop EE–2J/ and K Streets, NW., Washington, DC [FR Doc. 2011–22120 Filed 8–29–11; 8:45 am] 1000 Independence Avenue, SW., 20006. BILLING CODE 6450–01–P Washington, DC 20585–0121. FOR FURTHER INFORMATION CONTACT: Telephone: (202) 586–2945. Please Nancy Johnson, U.S. Department of submit one signed original paper copy. Energy, Office of Oil and Natural Gas • Hand Delivery/Courier: Ms. Brenda (FE–30), Washington, DC 20585; Edwards, U.S. Department of Energy, telephone (202) 586–5600 or facsimile Building Technologies Program, 950 (202) 586–6221. L’Enfant Plaza, SW., Suite 600, SUPPLEMENTARY INFORMATION: Washington, DC 20024. Please submit Purpose of the Committee: To provide one signed original paper copy. advice, information, and Docket: For access to the docket to recommendations to the Secretary of review the background documents

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relevant to this matter, you may visit the burdensome to conduct. (42 U.S.C. pursuant to the provisions of 10 CFR U.S. Department of Energy, 950 L’Enfant 6314(a)(2)). 431.401(g). Plaza, SW., Washington, DC 20024; For commercial package air- The waiver process also permits (202) 586–2945, between 9 a.m. and 4 conditioning and heating equipment, parties submitting a petition for waiver p.m., Monday through Friday, except on EPCA provides that ‘‘the test procedures to file an application for interim waiver Federal holidays. Available documents shall be those generally accepted of the applicable test procedure include the following items: (1) This industry testing procedures or rating requirements. 10 CFR 431.401(a)(2). The notice; (2) public comments received; procedures developed or recognized by Assistant Secretary will grant an interim (3) the petition for waiver and the Air-Conditioning and Refrigeration waiver request if it is determined that application for interim waiver; and (4) Institute [ARI] or by the American the applicant will experience economic prior DOE rulemakings and waivers Society of Heating, Refrigerating and hardship if the application for interim regarding similar central air Air-Conditioning Engineers [ASHRAE], waiver is denied, if it appears likely that conditioning and heat pump equipment. as referenced in ASHRAE/IES Standard the petition for waiver will be granted, Please call Ms. Brenda Edwards at the 90.1 and in effect on June 30, 1992.’’ (42 and/or the Assistant Secretary above telephone number for additional U.S.C. 6314(a)(4)(A)) Under 42 U.S.C. determines that it would be desirable for information. 6314(a)(4)(B), if the industry test public policy reasons to grant FOR FURTHER INFORMATION CONTACT: Dr. procedure for commercial package air- immediate relief pending a Michael G. Raymond, U.S. Department conditioning and heating equipment is determination on the petition for of Energy, Building Technologies amended, EPCA directs the Secretary to waiver. 10 CFR 431.401(e)(3). An Program, Mail Stop EE–2J, Forrestal amend the corresponding DOE test interim waiver remains in effect for 180 Building, 1000 Independence Avenue, procedure unless the Secretary days or until DOE issues its SW., Washington, DC 20585–0121. determines, by rule and based on clear determination on the petition for Telephone: (202) 586–9611. E-mail: and convincing evidence, that such a waiver, whichever occurs first. It may be [email protected]. modified test procedure does not meet extended by DOE for an additional 180 Ms. Elizabeth Kohl, U.S. Department the statutory criteria set forth in 42 days. 10 CFR 431.401(e)(4). of Energy, Office of the General Counsel, U.S.C. 6314(a)(2) and (3). Mail Stop GC–71, Forrestal Building, On December 8, 2006, DOE published II. Petition for Waiver 1000 Independence Avenue, SW., a final rule adopting test procedures for On July 22, 2011, LG filed a petition Washington, DC 20585–0103. commercial package air-conditioning for waiver from the test procedures at 10 Telephone: (202) 586–7796. E-mail: and heating equipment, effective CFR 431.96 applicable to commercial January 8, 2007. 71 FR 71340. Table 1 mailto:[email protected]. package air-source and water-source to Title 10 of the Code of Federal SUPPLEMENTARY INFORMATION: central air conditioners and heat pumps, Regulations (10 CFR) 431.96 directs as well as an application for interim I. Background and Authority manufacturers of commercial package waiver. LG’s petition requested a waiver air conditioning and heating equipment Title III of the Energy Policy and for the LG Multi V III multi-split heat to use the appropriate procedure when Conservation Act (EPCA) sets forth a pumps with capacities ranging from measuring energy efficiency of those variety of provisions concerning energy 69,000 Btu/h to 414,000 Btu/h. The products. For commercial package air- efficiency, including part B of Title III, applicable test procedure for these heat source equipment with capacities which establishes the ‘‘Energy pumps is ARI 340/360–2004. Conservation Program for Consumer between 65,000 and 760,000 Btu/h, ARI Standard 340/360–2004 is the Manufacturers are directed to use these Products Other Than Automobiles.’’ (42 test procedures pursuant to Table 1 of U.S.C. 6291–6309) part C of Title III applicable test procedure. DOE’s regulations for covered 10 CFR 431.96. provides for a similar energy efficiency LG seeks a waiver from the applicable program titled ‘‘Certain Industrial products permit a person to seek a waiver from the test procedure test procedures under 10 CFR 431.96 on Equipment,’’ which includes the grounds that its Multi V III multi- commercial air conditioning equipment, requirements for covered commercial equipment if at least one of the split heat pumps contain design package boilers, water heaters, and other characteristics that prevent testing 1 following conditions is met: (1) The types of commercial equipment. (42 according to the current DOE test U.S.C. 6311–6317) petitioner’s basic model contains one or more design characteristics that prevent procedures. Specifically, LG asserts that Today’s notice involves commercial the two primary factors that prevent equipment under Part C. Part C testing according to the prescribed test procedures; or (2) the prescribed test testing of its Multi V III multi-split specifically includes definitions (42 variable speed products are the same U.S.C. 6311), test procedures (42 U.S.C. procedures may evaluate the basic model in a manner so unrepresentative factors stated in the waivers that DOE 6314), labeling provisions (42 U.S.C. granted to Mitsubishi Electric & 6315), energy conservation standards of its true energy consumption as to provide materially inaccurate Electronics USA, Inc. (Mitsubishi) and (42 U.S.C 6313), and the authority to other manufacturers for similar lines of require information and reports from comparative data. 10 CFR 431.401(a)(1). Petitioners must include in their commercial multi-split air-conditioning manufacturers (42 U.S.C. 6316). With systems: respect to test procedures, Part C petition any alternate test procedures known to the petitioner to evaluate the • Testing laboratories cannot test authorizes the Secretary of Energy (the basic model in a manner representative products with so many indoor units; Secretary) to prescribe test procedures of its energy consumption. 10 CFR and that are reasonably designed to produce 431.401(b)(1)(iii). The Assistant • There are too many possible results that measure energy efficiency, Secretary for Energy Efficiency and combinations of indoor and outdoor energy use, and estimated annual Renewable Energy (Assistant Secretary) units to test. See, e.g., 72 FR 17528 operating costs, and that are not unduly may grant a waiver subject to (April 9, 2007) (Mitsubishi); 76 FR 1 For editorial reasons, upon codification in the conditions, including adherence to 19069 (April 6, 2011) (Daikin); 76 FR U.S. Code, Parts B and C were re-designated parts alternate test procedures. 10 CFR 19078 (April 6, 2011) (Mitsubishi); 76 A and A–1, respectively. 431.401(f)(4). Waivers remain in effect FR 31951 (June 2, 2011) (Carrier); 76 FR

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50204 (August 12, 2011) (Fujitsu reasons, DOE also determined that it is Ceiling Concealed Duct—Low Static: General Limited). desirable for public policy reasons to ARNU073B1G2, RNU093B1G2, The Multi V III systems have grant immediate relief pending a ARNU123B1G2, ARNU153B1G2, operational characteristics similar to the determination on the petition for ARNU183B2G2, and ARNU243B2G2, with commercial multi-split products nominally rated capacities of 7,500, 9,600, waiver. 12,300, 15,400, 19,100, and 24,200 Btu/h manufactured by other manufacturers. Therefore, it is ordered that: respectively. As indicated above, DOE has already The application for interim waiver Ceiling Concealed Duct—Built-in: granted waivers for these products. The filed by LG is hereby granted for LG’s ARNU073B3G2, ARNU093B3G2, Multi V III system consists of multiple Multi V III multi-split heat pumps, ARNU123B3G2, ARNU153B3G2, indoor units connected to an air-cooled subject to the specifications and ARNU183B4G2, and ARNU243B4G2, with outdoor unit. These multi-splits are conditions below. nominally rated capacities of 7,500, 9,600, used in zoned systems where an 1. LG shall not be required to test or 12,300, 15,400, 19,100, and 24,200 Btu/h outdoor or water-source unit can be rate its Multi V III commercial multi- respectively. connected with up to 13–61 separate split products on the basis of the Ceiling Concealed Duct—High Static: existing test procedures under 10 CFR ARNU073BHA2, ARNU093BHA2, indoor units, which need not be the ARNU123BHA2, ARNU153BHA2, same models. According to LG, the 431.96, which incorporates by reference ARNU153BGA2, ARNU183BHA2, various indoor and outdoor models can ARI 340/360–2004. ARNU183BGA2, ARNU243BHA2, be connected in a multitude of 2. LG shall be required to test and rate ARNU243BGA2, ARNU283BGA2, configurations, with many thousands of its Multi V III commercial multi-split ARNU363BGA2, ARNU423BGA2, possible combinations. Consequently, products according to the alternate test ARNU483BRA2, URNU763B8A2, and LG requested that DOE grant a waiver procedure as set forth in section IV, URNU963B8A2, with nominally rated from the applicable test procedures for ‘‘Alternate test procedure.’’ capacities of 7,500, 9,600, 12,300, 15,400, its Multi V III product designs until a The interim waiver applies to the 15,400, 19,100, 19,100, 24,200, 24,200, 28,000, 36,200, 42,000, 48,100, 76,400, and suitable test method can be prescribed. following basic model groups: Multi V Series Air-Source Heat 95,500 Btu/h respectively. III. Application for and Grant of Pumps and Heat Recovery Units: Ceiling & Floor: ARNU093VEA2 and Interim Waiver ARNU123VEA2, with nominally rated ARU*072*T3, ARU*096*T3, capacities of 9,600 and 12,300 Btu/h On July 22, 2011, LG also submitted ARU*121*T3, ARU*144*T3, ARU*168*T3, respectively. an application for an interim waiver ARU*192*T3, ARU*216*T3, ARU*240*T3, Ceiling Suspended: ARNU183VJA2 and from the test procedures at 10 CFR ARU*264*T3, ARU*288*T3, ARU*312*T3, ARNU243VJA2, with nominally rated 431.96 for its Multi V III equipment. ARU*336*T3, ARU*360*T3, ARU*384*T3, capacities of 19,100 and 24,200 Btu/h DOE determined that LG’s application ARU*408*T3, ARU*432*T3, with normally respectively. rated cooling capacities of 69,000, 92,000, for interim waiver does not provide Floor Standing with Case: ARNU073CEA2, 114,000, 138,000, 160,000, 184,000, 206,000, ARNU093CEA2, ARNU123CEA2, sufficient market, equipment price, 228,000, 250,000, 274,000, 296,000, 320,000, ARNU153CEA2, ARNU183CFA2, and shipments, and other manufacturer 342,000, 366,000, 390,000, and 414,000 Btu/ ARNU243CFA2, with nominally rated impact information to permit DOE to h respectively. capacities of 7,500, 9,600, 12,300, 15,400, evaluate the economic hardship LG Compatible indoor units for the 19,100, and 24,200 Btu/h respectively. might experience absent a favorable above-listed air-source and water-source Floor Standing without Case: ARNU073CEU2, ARNU093CEU2, determination on its application for an units: interim waiver. DOE understands, ARNU123CEU2, ARNU153CEU2, however, that if it did not issue an Wall Mounted: ARNU073SEL2, ARNU183CFU2, and ARNU243CFU2, with interim waiver, LG’s products would ARNU093SEL2, ARNU123SEL2, nominally rated capacities of 7,500, 9,600, ARNU153SEL2, ARNU183S5L2, and 12,300, 15,400, 19,100, and 24,200 Btu/h not be tested and rated for energy ARNU243S5L2, with nominally rated cooling respectively. consumption in the same manner as capacities of 7,500, 9,600, 12,300, 15,400, Vertical/Horizontal Air Handler: equivalent products for which DOE 19,100, and 24,200 Btu/h respectively. ARNU183NJA2, ARNU243NJA2, previously granted waivers. Art Cool Mirror: ARNU073SE*2, ARNU303NJA2, ARNU363NJA2, Furthermore, DOE has determined that ARNU093SE*2, ARNU123SE*2, ARNU423NKA2, ARNU483NKA2, and it appears likely that LG’s petition for ARNU153SE*2, ARNU183S3*2, and ARNU543NKA2, with nominally rated waiver will be granted and that is ARNU243S3*2, with nominally rated cooling capacities of 19,100, 24,200, 28,000, 36,200, desirable for public policy reasons to capacities of 7,500, 9,600, 12,300, 15,400, 42,000, 48,100 and 54,000 Btu/h respectively. 19,100, and 24,200 Btu/h respectively. grant LG immediate relief pending a 4 Way Cassette: ARNU053TR*2, This interim waiver is issued on the determination on the petition for ARNU073TEC2, ARNU093TEC2, condition that the statements, waiver. DOE believes that it is likely ARNU093TN*2, ARNU123TEC2, representations, and documents LG’s petition for waiver for the new ARNU123TN*2, ARNU153TEC2, provided by the petitioner are valid. Multi V III multi-split models will be ARNU153TN*2, ARNU183TEC2, DOE may revoke or modify this interim granted because, as noted above, DOE ARNU183TM*2, ARNU243TPC2, waiver at any time if it determines the has previously granted a number of ARNU243TM*2, ARNU283TPC2, factual basis underlying the petition for waivers for similar product designs. The ARNU363TNC2, ARNU423TMC2, and ARNU483TMC2, with nominally rated waiver is incorrect or the results from two principal reasons supporting the cooling capacities of 5,300, 7,500, 9,600, the alternate test procedure are grant of the previous waivers also apply 9,600, 12,300, 12,300, 15,400, 15,400, 19,100, unrepresentative of the basic models’ to LG’s Multi V III products: (1) Test 19,100, 24,200, 24,200, 28,000, 36,200, true energy consumption characteristics. laboratories cannot test products with so 42,000, and 48,100 Btu/h respectively. DOE makes decisions on waivers and many indoor units; and (2) it is 2 Way Cassette: ARNU183TLC2 and interim waivers for only those models impractical to test so many ARNU243TLC2, with nominally rated specifically set out in the petition, not combinations of indoor units with each capacities of 19,100 and 24,200 Btu/h future models that may be manufactured respectively. outdoor unit. In addition, DOE believes 1 Way Cassette: ARNU073TJC2, by the petitioner. LG may submit a new that similar products should be tested ARNU093TJC2, and ARNU123TJC2, with or amended petition for waiver and and rated for energy consumption on a nominally rated capacities of 7,500, 9,600, request for grant of interim waiver, as comparable basis. For these same and 12,300 Btu/h respectively. appropriate, for additional models of

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commercial package air conditioners procedure will allow LG to test and system having all ducted indoor units. and heat pumps for which it seeks a make energy efficiency representations The rating given to any untested multi- waiver from the DOE test procedure. In for its Multi V III products. As stated split system combination having the addition, DOE notes that grant of an above, DOE has applied a similar same outdoor unit and a mix of non- interim waiver or waiver does not alternate test procedure to other waivers ducted and ducted indoor units is set release a petitioner from the for similar residential and commercial equal to the average of the ratings for the certification requirements set forth at 10 central air conditioners and heat pumps two required tested combinations. CFR part 429. manufactured by other manufacturers. See, e.g., 72 FR 17528, April 9, 2007 Alternate Test Procedure IV. Alternate Test Procedure (Mitsubishi); 76 FR 19069, April 6, 2011 (A) LG is not required to test the In responses to two petitions for (Daikin); 76 FR 19078, April 6, 2011 products with cooling capacities of waiver from Mitsubishi, DOE specified (Mitsubishi); 76 FR 31951, June 2, 2011 300,000 Btu/h and below listed in its an alternate test procedure to provide a (Carrier); 76 FR 50204, August 12, 2011 petition for waiver dated July 22, 2011, basis from which Mitsubishi could test (Fujitsu General Limited). according to the test procedure for and make valid energy efficiency The alternate test procedure in the commercial package air conditioners representations for its R410A CITY commercial multi-split waivers that and heat pumps prescribed by DOE at MULTI products, as well as for its R22 DOE granted to Mitsubishi and the other 10 CFR 431.96 (ARI Standard 340/360– multi-split products. Alternate test manufacturers listed above is similar to 2004 (incorporated by reference in 10 procedures related to the Mitsubishi ANSI/AHRI 1230–2010, except that, as CFR 431.95(b)(2)–(3)), but instead shall petitions were published in the Federal stated previously, it covers equipment use the alternate test procedure ANSI/ Register on April 9, 2007. See 72 FR with cooling capacities greater than AHRI 1230–2010. 17528 and 72 FR 17533. For reasons 300,000 Btu/hr while ANSI/AHRI 1230– (B) LG shall be required to test the similar to those published in these prior 2010 covers equipment with cooling equipment listed in its petition for notices, DOE believes that an alternate capacities only equal to or less than waiver dated July 22, 2011, with cooling test procedure is appropriate in this 300,000 Btu/hr. In addition, the earlier capacities above 300,000 Btu/h instance. alternate test procedure consisted of a according to the test procedures for DOE understands that existing testing definition of a ‘‘tested combination’’ and central air conditioners and heat pumps facilities have limited ability to test a prescription for representations. prescribed by DOE at 10 CFR 431.96, multiple indoor units simultaneously. ANSI/AHRI 1230–2010 also includes a except that LG shall test a ‘‘tested This limitation makes it impractical for definition of ‘‘tested combination,’’ and combination’’ selected in accordance manufacturers to test the large number the two definitions are identical in all with the provisions of subparagraph (C). of possible combinations of indoor and relevant respects. As described in the For every other system combination outdoor units for some variable following paragraph, the prescription refrigerant flow zoned systems. We using the same outdoor unit as the for representations in ANSI/AHRI is tested combination, LG shall make further note that after DOE granted a also similar to the prescription in the waiver for Mitsubishi’s R22 multi-split representations concerning the Multi V earlier alternate test procedure, but III equipment covered in this interim products, ARI formed a committee to requires separate representations for discuss testing issues and to develop a waiver according to the provisions of ducted, non-ducted and mixed units. subparagraph (D). testing protocol for variable refrigerant The earlier alternate test procedure flow systems. The committee has provides for efficiency rating of a non- (C) Tested combination. The term developed a test procedure which has tested combination in one of two ways: tested combination means a sample been adopted by AHRI—‘‘ANSI/AHRI (1) At an energy efficiency level basic model comprised of units that are 1230–2010: Performance Rating of determined using a DOE-approved production units, or are representative Variable Refrigerant Flow (VRF) Multi- alternative rating method; or (2) at the of production units, of the basic model Split Air-Conditioning and Heat Pump efficiency level of the tested being tested. For the purposes of this Equipment’’ and incorporated into combination utilizing the same outdoor waiver, the tested combination shall ASHRAE 90.1–2010. ANSI/AHRI 1230– unit. ANSI/AHRI 1230–2010 requires an have the following features: 2010 is consistent with the alternate test additional test and in this respect is (1) The basic model of a variable procedure established in the similar to the residential test procedure refrigerant flow system used as a tested commercial multi-split waivers that set forth in 10 CFR part 430, subpart B, combination shall consist of one DOE has granted to Mitsubishi and appendix M. Multi-split manufacturers outdoor unit, with one or more several other manufacturers. ANSI/ must test two or more combinations of compressors, that is matched with AHRI 1230–2010 uses a definition of indoor units with each outdoor unit. between two and five indoor units. (For ‘‘tested combination’’ that is The first system combination is tested systems with nominal cooling capacities substantially the same as the definition using only non-ducted indoor units that greater than 150,000 Btu/h, as many as in the alternate test procedure in those meet the definition of a tested eight indoor units may be used, to waivers. DOE prescribed ANSI/AHRI combination. The rating given to any enable testing of non-ducted indoor unit 1230–2010 in decision and orders untested multi-split system combination combinations.) For multi-split systems, granted to Carrier Corporation (76 FR having the same outdoor unit and all each of these indoor units shall be 31951, June 2, 2011) and Fujitsu General non-ducted indoor units is set equal to designed for individual operation. Limited (76 FR 50204, August 12, 2011). the rating of the tested system having all (2) The indoor units shall— Therefore, as a condition for granting non-ducted indoor units. The second (i) Represent the highest sales model this interim waiver to LG, DOE requires system combination is tested using only family or another indoor model family the use of ANSI/AHRI–1230–2010 as the ducted indoor units that meet the if the highest sales model family does alternate test procedure for units with definition of a tested combination. The not provide sufficient capacity (see ii); capacities at or below 300,000 Btu/hr rating given to any untested multi-split (ii) Together, have a nominal cooling and the alternate test procedure system combination having the same capacity that is between 95% and 105% specified in the Mitsubishi waiver for outdoor unit and all ducted indoor units of the nominal cooling capacity of the larger capacity units. This alternate test is set equal to the rating of the tested outdoor unit;

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(iii) Not, individually, have a nominal DC 20006. All submissions received procedure does not provide a method for cooling capacity that is greater than must include the agency name and case rating systems where the type and capacity 50% of the nominal cooling capacity of number for this proceeding. Submit of the indoor unit can be mixed in the same the outdoor unit; electronic comments in WordPerfect, system; and no testing laboratories can test (iv) Operate at fan speeds that are products with so many indoor units. See, Microsoft Word, Portable Document e.g., 75 Fed. Reg. 41845, 41848 (July 19, consistent with the manufacturer’s Format (PDF), or text (American 2010) (existing testing facilities ‘‘have a specifications; and Standard Code for Information limited ability to test multiple indoor units (v) Be subject to the same minimum Interchange (ASCII)) file format and simultaneously,’’ and ‘‘it is impractical to test external static pressure requirement avoid the use of special characters or some variable refrigerant flow zoned while being configurable to produce the any form of encryption. Wherever systems’’). same static pressure at the exit of each possible, include the electronic Waiver relief has been granted for many outlet plenum when manifolded as per signature of the author. DOE does not other comparable commercial multi-splits, section 2.4.1 of 10 CFR part 430, subpart including LG, Mitsubishi, Samsung, Fujitsu, accept telefacsimiles (faxes). Sanyo, Daikin, and Carrier. See 69 Fed. Reg. B, appendix M. According to 10 CFR 1004.11, any (D) Representations. In making 52660 (Aug. 27, 2004) (Mitsubishi); 70 Fed. person submitting information that he Reg. 9629 (Feb. 28, 2005) (Samsung); 71 Fed. representations about the energy or she believes to be confidential and Reg. 14858 (March 24, 2006) (Mitsubishi); 72 efficiency of its Multi V III variable exempt by law from public disclosure Fed. Reg. 17528 (April 9, 2007) (Mitsubishi); capacity multi-split heat pump products should submit two copies: one copy of id. 71387 (Dec. 17, 2007) (Samsung); id. for compliance, marketing, or other the document including all the 71383 (Dec. 17, 2007) (Fujitsu); 73 Fed. Reg. purposes, LG must fairly disclose the information believed to be confidential, 179 (Jan. 2, 2008) (Sanyo); id. 1207, 1213 results of testing under the DOE test and one copy of the document with the (Jan. 7, 2008) (Daikin); id. 39680 (July 10, procedure in a manner consistent with 2008) (Daikin); id. 75408 (Dec. 11, 2008) information believed to be confidential (Mitsubishi); 74 Fed. Reg. 15955 (April 8, the provisions outlined below: deleted. DOE will make its own (1) For Multi V III combinations tested 2009) (Daikin); id. 16373 (April 10, 2009) determination about the confidential (Daikin); id. 20688 (May 5, 2009) (LG); id. in accordance with this alternate test status of the information and treat it 66330 (Dec. 15, 2009) (LG); id. 66324 (Dec. procedure, LG may make according to its determination. 15, 2009) (Daikin); id. 66311, 66315 (Dec. 15, representations based on these test 2009) (Mitsubishi); 75 Fed. Reg. 4795 (Jan. Issued in Washington, DC, on August 23, results. 29, 2010) (Daikin); id. 13114 (March 18, 2011. (2) For Multi V III combinations that 2010) (Sanyo); id. 22581 (April 29, 2010) are not tested, LG may make Kathleen Hogan, (Daikin); id. 25224 (May 7, 2010) (Daikin); id. representations of non-tested Deputy Assistant Secretary for Energy 41845 (July 19, 2010) (Sanyo); 76 Fed. Reg. combinations at the same energy Efficiency, Office of Technology 19069 (April 6, 2011) (Daikin); id. 19078 efficiency level as the tested Development, Energy Efficiency and (April 6, 2011) (Mitsubishi); id. 19759 (April Renewable Energy. combination. The outdoor unit must be 8, 2011) (Carrier); id. 29733 (May 23, 2011) (LG); id. 31946 (June 2, 2011) (Fujitsu); id. Englewood Cliffs, NJ 07632 the one used in the tested combination. 31951 (June 2, 2011) (Carrier); id. 34685 (June July 22, 2011 The representations must be based on 14, 2011) (Daikin); and id. 40714 (July 11, the test results for the tested The Honorable Dr. Henry Kelly 2011) (Mitsubishi). As stated above, LG’s combination. The representations may Acting Assistant Secretary and Principal current request simply adds additional also be determined by an Alternative Deputy Assistant Secretary, Energy models to the waiver relief already granted to Rating Method approved by DOE. Efficiency and Renewable Energy LG. United States Department of Energy LG is a manufacturer of digital appliances, V. Summary and Request for Comments Forrestal Building as well as mobile communications, digital 1000 Independence Avenue, S.W. displays, and digital media products. Its Through today’s notice, DOE Washington, DC 20585–0121 announces receipt of the LG petition for appliances include air-conditioners, washing Re: Petition for Waiver and Application for waiver from the test procedures machines, clothes dryers, refrigerators, Interim Waiver, LG Electronics Multi V refrigerator-freezers, air cleaners, ovens, applicable to the Multi V III commercial III VRF Multi-Split Heat Recovery microwave ovens, dishwashers, and vacuum multi-split heat pump products Systems and Heat Pump Systems cleaners and are sold worldwide, including specified in LG’s petition. For the Dear Assistant Secretary Kelly: in the United States. LG’s U.S. operations are reasons articulated above, DOE also LG Electronics, Inc. (LG) respectfully LG Electronics USA, Inc., with headquarters grants LG an interim waiver from those submits this Petition for Waiver and at 1000 Sylvan Avenue, Englewood Cliffs, NJ procedures. As part of this notice, DOE Application for Interim Waiver, pursuant to 07632 (tel. 201–816–2000). Its worldwide is publishing LG’s petition for waiver in 10 C.F.R. § 431.401, for certain LG Multi V headquarters are located at LG Twin Towers its entirety. The petition contains no III variable refrigerant flow (VRF) multi-split 20, Yoido-dong, Youngdungpo-gu Seoul, confidential information. Furthermore, air-source heat recovery systems, specifically Korea 150–721 (tel. 011–82–2–3777–1114) the Multi V III heat recovery systems (3; URL: http.www.LGE.com. LG’s principal today’s notice includes an alternate test 208/230 V 60 Hz, and 3; 460 V 60 Hz), and brands include LG® and OEM brands, procedure that LG is required to follow LG Multi V III VRF multi-split air-source heat including GE® and Kenmore®. LG’s as a condition of its interim waiver. pump systems, specifically the Multi V III appliances are produced in Korea and DOE is interested in receiving heat pump systems (3; 208/230 V 60 Hz, and Mexico. comments on the issues addressed in 3; 460 V 60 Hz), listed in Appendix A LG’s Multi V VRF systems are beneficial this notice. Pursuant to 10 CFR hereto. This request adds models to the products, each consisting of a single outdoor 431.401(d), any person submitting waivers that DOE already has granted to LG unit, using a scroll type inverter compressor written comments must also send a for Multi V and Multi V II VRF multi-split with variable capacity, that can connect to copy of such comments to the systems. 76 Fed. Reg. 29733 (May 23, 2011) multiple indoor units and that uses VRF and petitioner, pursuant to 10 CFR (interim waiver); 74 Fed. Reg. 66330 (Dec. 15, control systems. (In certain high capacity 2009); id. 20688 (May 5, 2009) (interim applications [152,900 Btu/h and above], a 431.401(d). The contact information for waiver). consumer can choose between a system using the petitioner is: John I. Taylor, Vice Among other things, the applicable DOE a single outdoor unit and a system using two President, Government Relations and test procedure does not provide a method for or three outdoor units.) These multi-splits are Communications, LG Electronics USA, testing and rating a system that utilizes so intended to be used in zoned systems where Inc., 1776 K Street, NW., Washington, many indoor units; the applicable test an outdoor unit can be connected with up to

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between 13 and 61 separate indoor units, the testing of multi-splits when all indoor Electronics USA, Samsung Air Conditioning, which need not be the same models. The units are connected cannot be physically Fujitsu General Limited, SANYO North operating characteristics allow each indoor located in a single room. America Corp., Daikin AC (Americas), Inc., unit to have a different set temperature and —The test procedure provides for testing and Carrier Corporation. a different mode of operation (i.e., on/off/ ‘‘matched assemblies,’’ which does not LG also requests immediate relief by grant fan). All of the indoor units are capable of apply to LG Multi V VRF systems. Indoor of an interim waiver. Grant of an interim operating independently, with their own and outdoor coils in split systems are waiver is fully justified: temperature and fan speed setting. Based on typically balanced; that is, the capacity of —The petition for waiver is likely to be those controls, the outdoor unit will then the outdoor coil is equivalent to the granted, as evidenced not only by its determine the cooling or heating capacity capacity of the indoor coil. The test merits, but also because DOE has already delivered into the zones. The system procedure’s application to ‘‘matched granted waiver relief to LG, Mitsubishi, therefore offers great flexibility and assemblies’’ contemplates such a balance Samsung, Fujitsu, Sanyo, Daikin, and convenience to the consumer, permitting between indoor and outdoor coil capacity. Carrier for their commercial VRF multi- precise space conditioning control With the Multi V VRF systems, however, splits. In such instances, it is in the public throughout the building, and thus saving the sum of the capacity of the indoor units interest to have similar products tested and energy. The cooling capacities of the systems connected into the system can be as much rated for energy consumption on a are between 69,000 and 414,000 Btu/h. as 130 percent of the capacity of the comparable basis. The variable speed, constant speed or dual outdoor coil. Such unbalanced —Without waiver relief, LG will be at a compressors and the associated system combinations of LG indoor and outdoor competitive disadvantage in the market controls can direct refrigerant flow units are permitted by the zoning and suffer economic hardship. LG would throughout the system to precisely meet the characteristics of the system, the use of be placed in an untenable situation: the various heating or cooling loads required in electronic expansion valves to precisely Multi V VRF systems involved here would the conditioned areas. The compressor is control refrigerant flow to each indoor coil, be subject to a set of regulations that DOE capable of reducing its operating capacity to and the system intelligence for overall already acknowledges should not apply to as little as 10 percent of its rated capacity. system control. The test procedure such a product, while at the same time The outdoor fan motor also has a variable designed for ‘‘matched assemblies’’ other manufacturers are allowed to operate speed drive to properly match the outdoor therefore does not contemplate or address relieved from such regulations. coil to indoor loads. Zone diversity enables testing for substantially unbalanced zoning —Significant investment has already been the system to have a total connected indoor systems such as the LG Multi V VRF made in LG Multi V VRF systems. Lack of unit capacity of up to 130 percent of the systems. relief would not allow LG to recoup this capacity of the outdoor. —The indoor units are designed to operate at investment as it relates to the models As discussed above, up to between 13 and many different external static pressure involved here and would deny LG 61 indoor units can be matched with each values, which compounds the difficulty of related outdoor unit. Thus, for each outdoor anticipated sales revenue. This does not testing LG Multi V VRF systems. A test take into account significant losses in unit there is a multitude of possible facility could not maintain proper airflow combinations of indoor units that can be goodwill and brand acceptance. at several different external static pressure —The basic purpose of EPCA is to foster matched in a system configuration. And values for the many indoor units that since there are so many outdoor units and purchase of energy-efficient products, not would be connected to the outdoor unit. hinder such purchases. LG Multi V VRF indoor units, there is an enormous total of *** possible combinations. systems produce a benefit to consumers A waiver and interim waiver for the For all of these reasons, the existing test and are in the public interest. To encourage specified LG Multi V III VRF systems are procedures evaluate the LG Multi V VRF and foster the availability of these products warranted because test procedures under the systems in a manner so unrepresentative of is in the public interest. Standards Energy Policy and Conservation Act (EPCA), their true energy consumption characteristics programs should not be used as a means 42 U.S.C. § 6291 et seq., namely 10 C.F.R. as to provide materially inaccurate to block innovative, improved designs.2 § 431.96, evaluate the basic models in a comparative data and/or the basic models DOE’s rules should accommodate and manner so unrepresentative of their true contain one or more design characteristics encourage—not act to block—such a energy consumption characteristics as to that prevent testing of the basic model product. provide materially inaccurate comparative according to the prescribed test procedures. —Granting the interim waiver and waiver data, and/or the basic models contain one or Therefore, DOE should grant a waiver for the would also eliminate a non-tariff trade more design characteristics that prevent LG Multi V VRF systems set forth in barrier. testing of the basic model according to the Appendix A. See 10 C.F.R. § 431.401(a)(1). —Grant of relief would also help enhance prescribed test procedures. In such The waiver should continue until a test economic development and employment, circumstances DOE ‘‘will grant’’ waiver procedure can be developed and adopted that including not only LG Electronics USA’s relief. 10 C.F.R. §§ 431.401(e)(3), (f)(4). In that will provide the U.S. market with a fair and operations in New Jersey, Georgia, Texas, regard: accurate assessment of the LG Multi V VRF California, Illinois and Alabama, but also at —The test procedure provides for testing of system energy consumption and efficiency major national retailers and regional a pair of indoor and outdoor assemblies levels. LG intends to work with DOE, dealers that carry LG products. making up a typical split system, but does stakeholders, and the Air-Conditioning, Furthermore, continued employment not specify how LG Multi V VRF systems, Heating and Refrigeration Institute (AHRI) to creation and ongoing investments in its with so many combinations of indoor units develop the appropriate test procedure. marketing, sales and servicing activities for each outdoor unit, could be evaluated. There are no alternative test procedures will be fostered by approval of the interim The situation is further complicated by the known to LG that could evaluate these waiver. Conversely, denial of the requested fact that there are so many outdoor units. products in a representative manner (other relief would harm the company and would It is not practical to test each possible than perhaps the procedures provided by be anticompetitive. combination, and the test procedure DOE in its waiver decisions for comparable CONCLUSION provides no alternative rating method for products). LG respectfully requests that DOE grant a generating efficiency ratings for systems That a waiver is warranted is borne out by waiver and interim waiver from existing test with more than one indoor unit. Thus, the the fact that DOE has granted waiver relief to standards for LG Multi V III VRF multi-split test procedure does not contemplate, and LG, as well as to Mitsubishi, Samsung, systems set forth in Appendix A hereto until cannot practically be applied to, LG Multi Fujitsu, Sanyo, Daikin, and Carrier for such time as a representative test procedure V VRF systems. DOE has already comparable commercial multi-splits. is developed and adopted for such products. recognized this by granting waiver relief to Manufacturers of all other basic models LG, and to other manufacturers for marketed in the United States and known to 2 See FTC Advisory Opinion No. 457, TRRP comparable systems. LG to incorporate similar design 1718.20 (1971 Transfer Binder); 49 Fed. Reg. 32213 —Testing laboratories cannot test products characteristics as found in the LG Multi V (Aug. 13, 1984); 52 Fed. Reg. 49141, 49147–48 (Dec. with so many indoor units. In that regard, VRF systems include Mitsubishi Electric and 30, 1987).

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We would be pleased to discuss this Phone: 202–719–3490 request with DOE and provide further Fax: 847–941–8177 information as needed. Email: [email protected] We hereby certify that all manufacturers of Of counsel: domestically marketed units of the same John A. Hodges product type have been notified by letter of Wiley Rein LLP this petition and application, copies of which 1776 K Street NW letters are attached (Appendix B hereto). John I. Taylor Washington, DC 20006 Vice President Sincerely, Phone: 202–719–7000 Government Relations and Communications Fax: 202–719–7049 LG Electronics USA, Inc. Email: [email protected] 1776 K Street NW Washington, DC 20006 APPENDIX A

MULTI V III SERIES AIR-SOURCE HEAT PUMPS AND HEAT RECOVERY UNITS

Rated cooling capacity Model name Multi V III heat Multi V III heat Multi V III heat pump 3 phase recovery 3 Multi V III heat recovery 3 Btu/h 208/230 V 60 phase 208/230 pump 3 phase phase 460 V 60 Frame type Hz V 60 Hz 460 V 60 Hz Hz

69000 ...... ARUN072BT3 ... ARUB072BT3 ... ARUN072DT3 ... ARUB072DT3 ... Single 92000 ...... ARUN096BT3 ... ARUB096BT3 ... ARUN096DT3 ... ARUB096DT3. 114000 ...... ARUN121BT3 ... ARUB121BT3 ... ARUN121DT3 ... ARUB121DT3. 138000 ...... ARUN144BT3 ... ARUB144BT3 ... ARUN144DT3 ... ARUB144DT3. 160000 ...... ARUN168BT3 ... ARUB168BT3 ... ARUN168DT3 ... ARUB168DT3 ... Dual 184000 ...... ARUN192BT3 ... ARUB192BT3 ... ARUN192DT3 ... ARUB192DT3. 206000 ...... ARUN216BT3 ... ARUB216BT3 ... ARUN216DT3 ... ARUB216DT3. 228000 ...... ARUN240BT3 ... ARUB240BT3 ... ARUN240DT3 ... ARUB240DT3. 250000 ...... ARUN264BT3 ... ARUB264BT3 ... ARUN264DT3 ... ARUB264DT3. 274000 ...... ARUN288BT3 ... ARUB288BT3 ... ARUN288DT3 ... ARUB288DT3. 296000 ...... ARUN312BT3 ... ARUB312BT3 ... ARUN312DT3 ... ARUB312DT3 ... Triple 320000 ...... ARUN336BT3 ... ARUB336BT3 ... ARUN336DT3 ... ARUB336DT3. 342000 ...... ARUN360BT3 ... ARUB360BT3 ... ARUN360DT3 ... ARUB360DT3. 366000 ...... ARUN384BT3 ... ARUB384BT3 ... ARUN384DT3 ... ARUB384DT3. 390000 ...... ARUN408BT3 ... ARUB408BT3 ... ARUN408DT3 ... ARUB408DT3. 414000 ...... ARUN432BT3 ... ARUB432BT3 ... ARUN432DT3 ... ARUB432DT3.

COMPATIBLE INDOOR UNITS FOR THE ABOVE-LISTED MODELS [Shaded indoor units not previously listed in DOE waiver]

Indoor unit

Rated cooling capacity Wall mounted Art cool mirror Vertical/ 4 way cassette 2 way cassette 1 way cassette Ceiling Ceiling horizontal air concealed concealed handler duct—low static duct—built in

5300 ...... ARNU053TR*2 ...... 7500 ...... ARNU073SEL2 ARNU073SE*2 ...... ARNU073TEC2 ...... ARNU073TJC2 ARNU073B1G2 ARNU073B3G2 9600 ...... ARNU093SEL2 ARNU093SE*2 ...... ARNU093TEC2 ARNU093TN*2 ...... ARNU093TJC2 ARNU093B1G2 ARNU093B3G2 12300 ...... ARNU123SEL2 ARNU123SE*2 ...... ARNU123TEC2 ARNU123TN*2 ...... ARNU123TJC2 ARNU123B1G2 ARNU123B3G2 15400 ...... ARNU153SEL2 ARNU153SE*2 ...... ARNU153TEC2 ARNU153TN*2 ...... ARNU153B1G2 ARNU153B3G2 19100 ...... ARNU183S5L2 ARNU183S5*2 ARNU183NJA2 ARNU183TEC2 ARNU183TM*2 ARNU183TLC2 ...... ARNU183B2G2 ARNU183B4G2 24200 ...... ARNU243S5L2 ARNU243S5*2 ARNU243NJA2 ARNU243TPC2 ARNU243TM*2 ARNU243TLC2 ...... ARNU243B2G2 ARNU243B4G2 28000 ...... ARNU303NJA2 ARNU283TPC2 ...... 36200 ...... ARNU363NJA2 ARNU363TNC2 ...... 42000 ...... ARNU423NKA2 ARNU423TMC2 ...... 48100 ...... ARNU483NKA2 ARNU483TMC2 ...... 54000 ...... ARNU543NKA2 ...... 76400 ...... 95500 ......

Indoor unit

Rated cooling capacity Ceiling concealed duct—high static Ceiling & floor Ceiling Floor standing Floor standing suspended with case without case

7500 ...... ARNU073BHA2 ...... ARNU073CEA2 ARNU073CEU2 9600 ...... ARNU093BHA2 ...... ARNU093VEA2 ...... ARNU093CEA2 ARNU093CEU2 12300 ...... ARNU123BHA2 ...... ARNU123VEA2 ...... ARNU123CEA2 ARNU123CEU2 15400 ...... ARNU153BHA2 ARNU153BGA2 ...... ARNU183VJA2 ARNU153CEA2 ARNU153CEU2 19100 ...... ARNU183BHA2 ARNU183BGA2 ...... ARNU243VJA2 ARNU183CFA2 ARNU183CFU2 24200 ...... ARNU243BHA2 ARNU243BGA2 ...... ARNU243CFA2 ARNU243CFU2 28000 ...... ARNU283BGA2 ...... 36200 ...... ARNU363BGA2 ...... 42000 ...... ARNU423BGA2 ...... 48100 ...... ARNU483BGA2 ...... 54000 ...... 76400 ...... URNU763B8A2 ...... 95500 ...... URNU963B8A2 ......

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[FR Doc. 2011–22112 Filed 8–29–11; 8:45 am] Docket Numbers: RP11–2409–000. Docket Numbers: EG11–120–000. BILLING CODE 6450–01–P Applicants: White River Hub, LLC. Applicants: Pinnacle Wind, LLC. Description: White River Hub, LLC Description: Notice of Self- submits tariff filing per 154.204: Certification as an Exempt Wholesale DEPARTMENT OF ENERGY Inactive Meters/Facilities to be effective Generator of Pinnacle Wind, LLC. 9/21/2011. Filed Date: 08/22/2011. Federal Energy Regulatory Filed Date: 08/22/2011. Accession Number: 20110822–5213. Commission Accession Number: 20110822–5115. Comment Date: 5 p.m. Eastern Time Comment Date: 5 p.m. Eastern Time on Monday, September 12, 2011. Combined Notice of Filings on Tuesday, September 06, 2011. Take notice that the Commission Take notice that the Commission has Docket Numbers: RP11–2410–000. Applicants: Gulf States Transmission received the following electric rate received the following Natural Gas LLC. filings: Pipeline Rate and Refund Report filings: Description: Gulf States Transmission Docket Numbers: ER11–4336–002. Filings Instituting Proceedings LLC submits tariff filing per 154.402: Applicants: ISO New England Inc. Description: ISO New England Inc. Docket Numbers: RP11–2404–000. Gulf States Transmission LLC ACA submits tariff filing per 35.17(b): Errata Applicants: KO Transmission Tariff Update to be effective 10/1/2011. to Docket No. ER11–4336–001 to be Company. Filed Date: 08/22/2011. Accession Number: 20110822–5164. Description: KO Transmission effective 6/1/2015. Comment Date: 5 p.m. Eastern Time Company submits tariff filing per Filed Date: 08/22/2011. on Tuesday, September 06, 2011. Accession Number: 20110822–5084. 154.402: Annual Charge Adjustment Any person desiring to intervene or Filing to be effective 10/1/2011. Comment Date: 5 p.m. Eastern Time protest in any of the above proceedings on Monday, September 12, 2011. Filed Date: 08/22/2011. must file in accordance with Rules 211 Accession Number: 20110822–5059. Docket Numbers: ER11–4347–000. and 214 of the Commission’s Comment Date: 5 p.m. Eastern Time Applicants: ITC Midwest LLC. Regulations (18 CFR 385.211 and on Tuesday, September 06, 2011. Description: ITC Midwest LLC 385.214) on or before 5 p.m. Eastern submits tariff filing per 35.13(a)(2)(iii): Docket Numbers: RP11–2405–000. time on the specified comment date. Filing of Distribution-Transmission Applicants: Questar Overthrust Protests may be considered, but Agreement to be effective 10/22/2011. Pipeline Company. intervention is necessary to become a Description: Questar Overthrust Filed Date: 08/22/2011. party to the proceeding. Accession Number: 20110822–5086. Pipeline Company submits tariff filing The filings are accessible in the Comment Date: 5 p.m. Eastern Time per 154.204: Correction to Forms of Commission’s eLibrary system by on Monday, September 12, 2011. Agreement to be effective 9/23/2011. clicking on the links or querying the Filed Date: 08/22/2011. docket number. Docket Numbers: ER11–4348–000. Accession Number: 20110822–5111. eFiling is encouraged. More detailed Applicants: PJM Interconnection, Comment Date: 5 p.m. Eastern Time information relating to filing LLC. on Tuesday, September 06, 2011. requirements, interventions, protests, Description: PJM Interconnection, Docket Numbers: RP11–2406–000. and service can be found at: http:// LLC submits tariff filing per Applicants: Questar Overthrust www.ferc.gov/docs-filing/efiling/filing- 35.13(a)(2)(iii): Non-Queued Pipeline Company. req.pdf. For other information, call (866) Interconnection Service Agreement— Description: Questar Overthrust 208–3676 (toll free). For TTY, call (202) Original Service 2960 to be effective 7/ Pipeline Company submits tariff filing 502–8659. 21/2011. per 154.204: Inactive Meters/Facilities Filed Date: 08/22/2011. Dated: August 23, 2011. to be effective 9/21/2011. Accession Number: 20110822–5116. Filed Date: 08/22/2011. Nathaniel J. Davis, Sr., Comment Date: 5 p.m. Eastern Time Accession Number: 20110822–5112. Deputy Secretary. on Monday, September 12, 2011. Comment Date: 5 p.m. Eastern Time [FR Doc. 2011–22054 Filed 8–29–11; 8:45 am] on Tuesday, September 06, 2011. Docket Numbers: ER11–4349–000. BILLING CODE 6717–01–P Applicants: Southwest Power Pool, Docket Numbers: RP11–2407–000. Inc. Applicants: Questar Southern Trails Description: Southwest Power Pool, Pipeline Company. DEPARTMENT OF ENERGY Inc. submits tariff filing per Description: Questar Southern Trails 35.13(a)(2)(iii): 2233 Osage Wind/GRDA Pipeline Company submits tariff filing Federal Energy Regulatory Facilities Construction Agreement to be per 154.204: Inactive Meters/Facilities Commission effective 7/21/2011. to be effective 9/21/2011. Combined Notice of Filings #1 Filed Date: 08/22/2011. Filed Date: 08/22/2011. Accession Number: 20110822–5144. Accession Number: 20110822–5113. Take notice that the Commission Comment Date: 5 p.m. Eastern Time Comment Date: 5 p.m. Eastern Time received the following exempt on Monday, September 12, 2011. on Tuesday, September 06, 2011. wholesale generator filings: Docket Numbers: RP11–2408–000. Docket Numbers: EG11–119–000. Docket Numbers: ER11–4351–000. Applicants: White River Hub, LLC. Applicants: Copper Mountain Solar 1, Applicants: Pinnacle Wind, LLC. Description: White River Hub, LLC LLC. Description: Pinnacle Wind, LLC submits tariff filing per 154.204: Description: Copper Mountain Solar submits tariff filing per 35.12: Correction to Forms of Agreement to be 1, LLC Notice of Self-Certification of Application for Market-Based Rate effective 9/23/2011. Exempt Wholesale Generator Status. Authority to be effective 10/3/2011. Filed Date: 08/22/2011. Filed Date: 08/22/2011. Filed Date: 08/22/2011. Accession Number: 20110822–5114. Accession Number: 20110822–5079. Accession Number: 20110822–5166. Comment Date: 5 p.m. Eastern Time Comment Date: 5 p.m. Eastern Time Comment Date: 5 p.m. Eastern Time on Tuesday, September 06, 2011. on Monday, September 12, 2011. on Monday, September 12, 2011.

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Docket Numbers: ER11–4352–000. notice in the Federal Register of August automatically captured and included as Applicants: Arizona Public Service 2, 2011 soliciting stakeholder input part of the comment that is placed in the Company. regarding the efficacy and scope of the docket and made available on the Description: Arizona Public Service MSW Characterization Report called Internet. If you submit an electronic Company submits tariff filing per ‘‘Municipal Solid Waste in the United comment, EPA recommends that you 35.13(a)(2)(iii): Service Agreement No. States’’ as part of a broader discussion include your name and other contact 312, LGIA of Perrin Ranch Wind, LLC about sustainable materials information in the body of your to be effective 8/23/2011. management. This information will be comment and with any disk or CD–ROM Filed Date: 08/22/2011. used to develop new measurement you submit. If EPA cannot read your Accession Number: 20110822–5167. definitions and protocols for comment due to technical difficulties Comment Date: 5 p.m. Eastern Time measurement of these materials, as well and cannot contact you for clarification, on Monday, September 12, 2011. as the possible addition of construction EPA may not be able to consider your Docket Numbers: ER11–4353–000. and demolition (C&D) materials and comment. Electronic files should avoid Applicants: California Independent non-hazardous industrial materials to the use of special characters, any form System Operator Corporation. the list of materials addressed in future of encryption, and be free of any defects Description: California Independent efforts. This effort could lead to the or viruses. For additional information System Operator Corporation submits creation of a new measurement report about EPA’s public docket, visit the EPA tariff filing per 35.13(a)(2)(iii): 2011–08– that the EPA will make publicly Docket Center homepage at http:// 22 CAISO Regulation Energy available. This document is extending www.epa.gov/dockets/. Management Amendment to be effective the comment period from August 31, Docket: All documents in the docket 12/1/2011. are listed in the http:// Filed Date: 08/22/2011. 2011 to September 30, 2011. Accession Number: 20110822–5222. DATES: All written comments must be www.regulations.gov index. Although Comment Date: 5 p.m. Eastern Time received on or before September 30, listed in the index, some information is on Monday, September 12, 2011. 2011. not publicly available, e.g., CBI or other information whose disclosure is The filings are accessible in the ADDRESSES: Submit your comments, restricted by statute. Certain other Commission’s eLibrary system by identified by Docket ID No. EPA–HQ– material, such as copyrighted material, clicking on the links or querying the RCRA–2011–0178 by one of the will be publicly available only in hard docket number. following methods: Any person desiring to intervene or • copy. Publicly available docket http://www.regulations.gov. Follow materials are available either protest in any of the above proceedings the on-line instructions for submitting must file in accordance with Rules 211 electronically in http:// comments using the Docket ID No. EPA– www.regulations.gov or in hard copy at and 214 of the Commission’s HQ–RCRA–2011–0178. Regulations (18 CFR 385.211 and • the RCRA Docket, EPA/DC, EPA West, E-mail: [email protected]. Room 3334, 1301 Constitution Ave., 385.214) on or before 5 p.m. Eastern • Fax: 202–566–9744. NW., Washington, DC 20460. The Public time on the specified comment date. • Mail: RCRA Docket (28221T), Reading Room is open from 8:30 a.m. to Protests may be considered, but Environmental Protection Agency, 1200 4:30 p.m., Monday through Friday, intervention is necessary to become a Pennsylvania Ave., NW., Washington, excluding legal holidays. The telephone party to the proceeding. DC 20460–0001. eFiling is encouraged. More detailed • Hand Delivery: EPA West Building number for the Public Reading Room is information relating to filing Room 3334, 1301 Constitution Avenue, (202) 566–1744, and the telephone requirements, interventions, protests, NW., Washington, DC 20460. Such number for the RCRA Docket is (202) service, and qualifying facilities filings deliveries are only accepted during the 566–0270. can be found at: http://www.ferc.gov/ Docket’s normal hours of operation FOR FURTHER INFORMATION CONTACT: docs-filing/efiling/filing-req.pdf. For (8:30 a.m. to 4:30 p.m., Monday through Hope Pillsbury, Mail Code (5306P), other information, call (866) 208–3676 Friday, excluding legal holidays) and Office of Resource Conservation and (toll free). For TTY, call (202) 502–8659. special arrangements should be made Recovery, Environmental Protection Dated: August 23, 2011. for deliveries of boxed information. Agency, 1200 Pennsylvania Ave., NW., Nathaniel J. Davis, Sr., Instructions: Direct your comments to Washington, DC 20460–0001; telephone number: (703) 308–7258; Deputy Secretary. Docket ID No. EPA–HQ–RCRA–2011– [email protected]. [FR Doc. 2011–22092 Filed 8–29–11; 8:45 am] 0178. EPA’s policy is that all comments received will be included in the docket SUPPLEMENTARY INFORMATION BILLING CODE 6717–01–P : without change and may be made This document extends the public available on-line at http:// comment period established in the www.regulations.gov, including any Federal Register of August 2, 2011 (76 ENVIRONMENTAL PROTECTION personal information provided, unless FR 46290?) (FRL–9446–9). In that AGENCY the comment includes information document, EPA sought comments [EPA–HQ–RCRA–2011–0178; FRL–9457–5] claimed to be Confidential Business regarding the efficacy and scope of the Information (CBI) or other information MSW Characterization Report called EPA Seeking Input Materials whose disclosure is restricted by statute. ‘‘Municipal Solid Waste in the United Measurement; Municipal Solid Waste The http://www.regulations.gov Web States’’ as part of a broader discussion (MSW), Recycling, and Source site is an ‘‘anonymous access’’ system, about sustainable materials Reduction Measurement in the U.S. which means EPA will not know your management. Several requests were AGENCY: Environmental Protection identity or contact information unless received from potential commenters, to Agency (EPA). you provide it in the body of your extend the comment period by 30 days. ACTION: Extension of comment period. comment. If you send an e-mail EPA is hereby extending the comment comment directly to EPA without going period, which was set to end on August SUMMARY: The Environmental Protection through http://www.regulations.gov, 31, 2011, to September 30, 2011. EPA Agency (EPA or the Agency) issued a your e-mail address will be will consider all comments received by

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September 30, 2011 to be timely and proposed settlement includes a FEDERAL COMMUNICATIONS given full consideration. covenant not to sue the settling party COMMISSION To submit comments, please follow pursuant to Section 107(a) of CERCLA, [CC Docket No. 92–237; DA 11–1434] the detailed instructions as provided 42 U.S.C. 9607(a) and Section 7003 of under the ADDRESSES section of this RCRA, 42 U.S.C. 6973. Next Meeting of the North American notice. If you have questions, consult Numbering Council the person listed under FOR FURTHER For thirty (30) days following the date INFORMATION CONTACT. of publication of this notice, the Agency AGENCY: Federal Communications will receive written comments relating Commission. List of Subjects to the settlement. The Agency will ACTION: Notice. Environmental protection, municipal consider all comments received and solid waste (MSW) characterization, may modify or withdraw its consent to SUMMARY: In this document, the MSW management, recycling, the settlement if comments received Commission released a public notice measurement, data, data collection, disclose facts or considerations which announcing the meeting and agenda of construction and demolition (C&D) indicate that the settlement is the North American Numbering Council recycling, source reduction, life cycle, inappropriate, improper, or inadequate. (NANC). The intended effect of this life cycle systems approach, sustainable The Agency’s response to any comments action is to make the public aware of the materials management. received will be available for public NANC’s next meeting and agenda. Dated: August 18, 2011. inspection at the US EPA Region 1 DATES: Thursday, September 15, 2011, Suzanne Rudzinski, OSRR Records and Information Center, 9:30 a.m. Director, Office of Resource Conservation and 5 Post Office Square, Suite 100, Boston, ADDRESSES: Requests to make an oral Recovery, Office of Solid Waste and MA 02109. During the public comment statement or provide written comments Emergency Response. period, commenters may request an to the NANC should be sent to Deborah [FR Doc. 2011–22137 Filed 8–29–11; 8:45 am] opportunity for a public meeting in the Blue, Competition Policy Division, BILLING CODE 6560–50–P affected area in accordance with Section Wireline Competition Bureau, Federal 7003(d) of RCRA, 42 U.S.C. 6973(d). Communications Commission, Portals II, 445 Twelfth Street, SW., Room 5– ENVIRONMENTAL PROTECTION DATES: Comments must be submitted on C162, Washington, DC 20554. AGENCY or before September 29, 2011. FOR FURTHER INFORMATION CONTACT: [FRL–9456–9] ADDRESSES: Comments should be Deborah Blue, Special Assistant to the addressed to the Regional Hearing Clerk, Designated Federal Officer (DFO) at Proposed Administrative Settlement U.S. Environmental Protection Agency, (202) 418–1466 or Agreement and Order on Consent; In Region I, 5 Post Office Square, Suite [email protected]. The fax number Re: Ely Copper Mine Superfund Site, 100, Mailcode ORA18–1, Boston, MA is: (202) 418–1413. The TTY number is: Located in Vershire, VT 02109 and should refer to: In re: Ely (202) 418–0484. AGENCY: Environmental Protection Mine Forest, Inc., U.S. EPA Region 1 SUPPLEMENTARY INFORMATION: This is a Agency. Docket No. CERCLA–01–2011–0012. summary of the Commission’s ACTION: Notice of proposed settlement document in CC Docket No. 92–237, DA FOR FURTHER INFORMATION CONTACT: The agreement; request for public comment. 11–1434 released August 22, 2011. The proposed settlement and additional complete text in this document is SUMMARY: In accordance with Section background information relating to the available for public inspection and 122(i) of the Comprehensive settlement are available for public copying during normal business hours Environmental Response, inspection at the Vershire Town Hall, in the FCC Reference Information Compensation, and Liability Act, as 6894 VT Rt. 113, Vershire, VT or at the Center, Portals II, 445 12th Street, SW., amended (‘‘CERCLA’’), 42 U.S.C. US EPA Region 1 OSRR Records and Room CY–A257, Washington, DC 20554. 9622(i), and Section 7003(d) of the Information Center, 5 Post Office The document my also be purchased Resource Conservation and Recovery Square, Suite 100, Boston, MA 02109. In from the Commission’s duplicating Act (‘‘RCRA’’), 42 U.S.C. 9673(d), notice addition, a copy of the proposed contractor, Best Copy and Printing, Inc., is hereby given of a proposed settlement settlement agreement can be obtained 445 12th Street, SW., Room CY–B402, for recovery of past and projected future from Ann Gardner, U.S. Environmental Washington, DC 20554, telephone (800) response costs concerning the Ely Protection Agency, Region I, 5 Post 378–3160 or (202) 863–2893, facsimile Copper Mine Superfund Site in Office Square, Suite 100, Mailcode (202) 863–2898, or via the Internet at Vershire, Vermont with the following OES04–4, Boston, MA 02109–3912, or http://www.bcpiweb.com. It is available settling party: Ely Mine Forest, Inc. The on the Commission’s Web site at http: by e-mail at [email protected]. proposed settlement requires the //www.fcc.gov. settling party to hold all of its remaining Additional information on the Ely The North American Numbering cash accounts for purposes of paying Copper Mine Superfund Site can be Council (NANC) has scheduled a certain site-related expenses approved found through the US EPA Region I Web meeting to be held Thursday, September by EPA. In addition, the proposed site at http://www.epa.gov/region1/ 15, 2011, from 9:30 a.m. until 5 p.m. settlement requires the settling party to: cleanup/index.html. The meeting will be held at the Federal use best efforts to market and sell the Dated: May 17, 2011. Communications Commission, Portals site property, allow EPA to remove and Stanley D. Chin, II, 445 Twelfth Street, SW., Room TW– use borrow material located on the site C305, Washington, DC. This meeting is Acting Director, Office of Site Remediation property, provide EPA and their and Restoration, U.S. EPA, Region I. open to members of the general public. contractors access to the site property, The FCC will attempt to accommodate and prepare and record any documents [FR Doc. 2011–21991 Filed 8–29–11; 8:45 am] as many participants as possible. The necessary to implement institutional BILLING CODE 6560–50–P public may submit written statements to controls on the site property. The the NANC, which must be received two

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business days before the meeting. In Federal Communications Commission. STATUS: This meeting will be open to the addition, oral statements at the meeting Ann Stevens, public. by parties or entities not represented on Attorney, Wireline Competition Bureau. ITEMS TO BE DISCUSSED: the NANC will be permitted to the [FR Doc. 2011–22195 Filed 8–29–11; 8:45 am] Correction and Approval of the extent time permits. Such statements BILLING CODE 6712–01–P Minutes for the Meeting of August 4, will be limited to five minutes in length 2011. by any one party or entity, and requests Draft Advisory Opinion 2011–15: to make an oral statement must be FEDERAL DEPOSIT INSURANCE Abdul Karim Hassan, Esq. received two business days before the CORPORATION Draft Advisory Opinion 2011–17: meeting. Giffords for Congress. People With Disabilities: To request Notice to All Interested Parties of the Interpretive Rule on When Certain materials in accessible formats for Termination of the Receivership of Independent Expenditures are ‘‘Publicly people with disabilities (braille, large 10006—First Integrity Bank, Staples, Disseminated’’ for Reporting Purposes. print, electronic files, audio format), MN Proposed Final Audit Report on the send an e-mail to [email protected] or call United Association Political Education the Consumer and Governmental Affairs Notice Is Hereby Given that the Committee (A09–27). Bureau at 202–418–0530 (voice), 202– Federal Deposit Insurance Corporation Management and Administrative 418–0432 (tty). Reasonable (‘‘FDIC’’) as Receiver for First Integrity Matters. accommodations for people with Bank, Staples, MN (‘‘the Receiver’’) Individuals who plan to attend and disabilities are available upon request. intends to terminate its receivership for require special assistance, such as sign Include a description of the said institution. The FDIC was language interpretation or other accommodation you will need, appointed Receiver of First Integrity reasonable accommodations, should including as much detail as you can. Bank, Staples, MN on May 30, 2008. contact Shawn Woodhead Werth, Also include a way we can contact you The liquidation of the receivership Commission Secretary and Clerk, at if we need more information. Please assets has been completed. To the extent (202) 694–1040, at least 72 hours prior allow at least five days advance notice; permitted by available funds and in to the hearing date. last minute requests will be accepted, accordance with law, the Receiver will PERSON TO CONTACT FOR INFORMATION: but may be impossible to fill. be making a final dividend payment to Judith Ingram, Press Officer, Telephone: proven creditors. (202) 694–1220. Proposed Agenda: Thursday, Based upon the foregoing, the September 15, 2011, 9:30 a.m.* Receiver has determined that the Signed: 1. Announcements and Recent News. continued existence of the receivership Shawn Woodhead Werth, 2. Approval of Transcript Meeting of will serve no useful purpose. Secretary and Clerk of the Commission. May 17, 2011. Consequently, notice is given that the [FR Doc. 2011–22182 Filed 8–26–11; 11:15 am] 3. Report of the North American receivership shall be terminated, to be BILLING CODE 6715–01–P Numbering Plan Administrator effective no sooner than thirty days after (NANPA). the date of this Notice. If any person 4. Report of the National Thousands wishes to comment concerning the FEDERAL RESERVE SYSTEM Block Pooling Administrator (PA). termination of the receivership, such 5. Report of the Numbering Oversight comment must be made in writing and Change in Bank Control Notices; Working Group (NOWG). sent within thirty days of the date of Acquisitions of Shares of a Bank or this Notice to: Federal Deposit Bank Holding Company 6. Report of the North American Insurance Corporation, Division of Numbering Plan Billing and Collection Resolutions and Receiverships, The notificants listed below have (NANP B&C) Agent. Attention: Receivership Oversight applied under the Change in Bank 7. Report of the Billing and Collection Department 8.1, 1601 Bryan Street, Control Act (12 U.S.C. 1817(j)) and Working Group (B&C WG). Dallas, TX 75201. § 225.41 of the Board’s Regulation Y (12 8. Report of the North American No comments concerning the CFR 225.41) to acquire shares of a bank Portability Management LLC (NAPM termination of this receivership will be or bank holding company. The factors LLC). considered which are not sent within that are considered in acting on the 9. Report of the LNPA Selection this time frame. notices are set forth in paragraph 7 of Working Group (SWG). the Act (12 U.S.C. 1817(j)(7)). Federal Deposit Insurance Corporation. The notices are available for 10. Report of the Local Number Dated: August 25, 2011. immediate inspection at the Federal Portability Administration (LNPA) Robert E. Feldman, Reserve Bank indicated. The notices Working Group. Executive Secretary. also will be available for inspection at 11. Status of the Industry Numbering [FR Doc. 2011–22094 Filed 8–29–11; 8:45 am] the offices of the Board of Governors. Committee (INC) activities. BILLING CODE 6714–01–P Interested persons may express their 12. Report of the Future of Numbering views in writing to the Reserve Bank Working Group (FoN WG). indicated for that notice or to the offices 13. Summary of Action Items. FEDERAL ELECTION COMMISSION of the Board of Governors. Comments 14. Public Comments and must be received not later than Participation (5 minutes per speaker). Sunshine Act Notice September 13, 2011. 15. Other Business. A. Federal Reserve Bank of New York AGENCY: Federal Election Commission. (Ivan Hurwitz, Vice President) 33 Adjourn no later than 5 p.m. DATE AND TIME: Thursday, September 1, Liberty Street, New York, New York * The Agenda may be modified at the 2011 at 10 a.m. 10045–0001: discretion of the NANC Chairman PLACE: 999 E Street, NW., Washington, 1. Oaktree Capital Group Holdings with the approval of the DFO. DC (Ninth Floor). GP, LLC; Oaktree Capital Group

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Holdings, L.P.; Oaktree Capital Group, President) 1000 Peachtree Street, NE., acquiring 100 percent of the voting LLC; Oaktree AIF Holdings, Inc.; Atlanta, Georgia 30309: shares of the Edon State Bank Company Oaktree Holdings, LLC; Oaktree 1. Luis Enrique Cobo and Ana A. of Edon, Edon, Ohio. Holdings, Inc.; OCM Holdings I, LLC; Cobo, individually, and Terry Mark Board of Governors of the Federal Reserve Oaktree Capital Management, L.P.; Jones and April Jones, individually, all System, August 25, 2011. Oaktree AIF Investments, L.P.; Oaktree of Key West, Florida; to acquire Robert deV. Frierson, additional voting shares of First State Capital I, L.P.; Oaktree Fund GP I, L.P.; Deputy Secretary of the Board. Oaktree Fund GP III, L.P.; Oaktree Bank of the Florida Keys Holding Principal Fund V GP, Ltd.; Oaktree Company, and thereby indirectly [FR Doc. 2011–22123 Filed 8–29–11; 8:45 am] Fund GP AIF, LLC; Oaktree Principal acquire additional voting shares of First BILLING CODE 6210–01–P Fund V GP, L.P.; Oaktree Fund GP, LLC; State Bank of the Florida Keys, both in Key West, Florida. Oaktree Principal Fund V, L.P.; Oaktree FEDERAL RESERVE SYSTEM Principal Fund V (Parallel), L.P.; Board of Governors of the Federal Reserve Oaktree Fund AIF Series, L.P.—Series I; System, August 25, 2011. Notice of Proposals To Engage in Oaktree Principal Fund V (Delaware), Robert deV. Frierson, Permissible Nonbanking Activities or L.P.; Oaktree FF Investment Fund AIF Deputy Secretary of the Board. To Acquire Companies That Are (Delaware), L.P, all of Los Angeles, [FR Doc. 2011–22124 Filed 8–29–11; 8:45 am] Engaged in Permissible Nonbanking California; to gain control of First BILLING CODE 6210–01–P Activities BanCorp, and thereby indirectly gain control of FirstBank Puerto Rico, both in The companies listed in this notice San Juan, Puerto Rico. FEDERAL RESERVE SYSTEM have given notice under section 4 of the B. Federal Reserve Bank of Bank Holding Company Act (12 U.S.C. Minneapolis (Jacqueline G. King, Formations of, Acquisitions by, and 1843) (BHC Act) and Regulation Y, (12 Community Affairs Officer) 90 Mergers of Bank Holding Companies CFR part 225) to engage de novo, or to Hennepin Avenue, Minneapolis, acquire or control voting securities or The companies listed in this notice Minnesota 55480–0291: assets of a company, including the have applied to the Board for approval, companies listed below, that engages 1. Paul K. Steen, Edina, Minnesota, pursuant to the Bank Holding Company either directly or through a subsidiary or and James R. Steen, Fargo, North Act of 1956 (12 U.S.C. 1841 et seq.) other company, in a nonbanking activity Dakota; to each retain voting shares of (BHC Act), Regulation Y (12 CFR part that is listed in § 225.28 of Regulation Y Clinton Bancshares, Inc., and thereby 225), and all other applicable statutes (12 CFR 225.28) or that the Board has indirectly retain control of Clinton State and regulations to become a bank determined by Order to be closely Bank, both in Clinton, Minnesota. holding company and/or to acquire the related to banking and permissible for Board of Governors of the Federal Reserve assets or the ownership of, control of, or bank holding companies. Unless System, August 24, 2011. the power to vote shares of a bank or otherwise noted, these activities will be Robert deV. Frierson, bank holding company and all of the conducted throughout the United States. Deputy Secretary of the Board. banks and nonbanking companies Each notice is available for inspection [FR Doc. 2011–22010 Filed 8–29–11; 8:45 am] owned by the bank holding company, at the Federal Reserve Bank indicated. BILLING CODE 6210–01–P including the companies listed below. The applications listed below, as well The notice also will be available for as other related filings required by the inspection at the offices of the Board of FEDERAL RESERVE SYSTEM Board, are available for immediate Governors. Interested persons may inspection at the Federal Reserve Bank express their views in writing on the Change in Bank Control Notices; indicated. The application also will be question whether the proposal complies Acquisitions of Shares of a Bank or available for inspection at the offices of with the standards of section 4 of the Bank Holding Company the Board of Governors. Interested BHC Act. persons may express their views in Unless otherwise noted, comments The notificants listed below have writing on the standards enumerated in regarding the applications must be applied under the Change in Bank the BHC Act (12 U.S.C. 1842(c)). If the received at the Reserve Bank indicated Control Act (12 U.S.C. 1817(j)) and proposal also involves the acquisition of or the offices of the Board of Governors § 225.41 of the Board’s Regulation Y (12 a nonbanking company, the review also not later than September 13, 2011. CFR 225.41) to acquire shares of a bank includes whether the acquisition of the A. Federal Reserve Bank of Kansas or bank holding company. The factors nonbanking company complies with the City (Dennis Denney, Assistant Vice that are considered in acting on the standards in section 4 of the BHC Act President) 1 Memorial Drive, Kansas notices are set forth in paragraph 7 of (12 U.S.C. 1843). Unless otherwise City, Missouri 64198–0001: the Act (12 U.S.C. 1817(j)(7)). noted, nonbanking activities will be The notices are available for 1. Union State Banc Holding conducted throughout the United States. immediate inspection at the Federal Company, through the acquisition of the Unless otherwise noted, comments assets of Republican Valley Title, LLC, Reserve Bank indicated. The notices regarding each of these applications also will be available for inspection at both in Clay Center, Kansas; to engage must be received at the Reserve Bank in the sale of insurance in a town of less the offices of the Board of Governors. indicated or the offices of the Board of Interested persons may express their than 5,000, pursuant to section Governors not later than September 23, 225.28(b)(11)(iii)(A) of Regulation Y. views in writing to the Reserve Bank 2011. indicated for that notice or to the offices A. Federal Reserve Bank of Cleveland Board of Governors of the Federal Reserve System, August 24, 2011. of the Board of Governors. Comments (Nadine Wallman, Vice President) 1455 must be received not later than East Sixth Street, Cleveland, Ohio Robert deV. Frierson, September 14, 2011. 44101–2566: Deputy Secretary of the Board. A. Federal Reserve Bank of Atlanta 1. Edon Bancorp, Inc., Edon, Ohio; to [FR Doc. 2011–22011 Filed 8–29–11; 8:45 am] (Chapelle Davis, Assistant Vice become a bank holding company by BILLING CODE 6210–01–P

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GENERAL SERVICES Meeting Access: The teleconference DEPARTMENT OF HEALTH AND ADMINISTRATION meeting is open to the public; interested HUMAN SERVICES members of the public may listen to the [Notice–2011–03; Docket No. 2011–0006; PMAB’s discussion using 1 (888) 323– [Document Identifier: OS–0990–New; 30- Sequence 16] Day Notice] 9795 and passcode 7672250. Members The President’s Management Advisory of the public will not have the Agency Information Collection Board (PMAB); Notification of opportunity to ask questions or Request; 30-Day Public Comment Upcoming Public Advisory Meeting otherwise participate in the Request teleconference. However, members of AGENCY: Office of Executive Councils, the public wishing to comment on the AGENCY: Office of the Secretary, HHS. U. S. General Services Administration discussion or topics outlined in the In compliance with the requirement (GSA). Agenda should follow the steps detailed of section 3506(c)(2)(A) of the ACTION: Meeting Notice. in Procedures for Providing Public Paperwork Reduction Act of 1995, the Office of the Secretary (OS), Department SUMMARY: The President’s Management Comments below. Advisory Board (PMAB), a Federal Availability of Materials for the of Health and Human Services, is Advisory Committee established in Meeting: Please see the PMAB Web site publishing the following summary of a accordance with the Federal Advisory (http://www.whitehouse.gov/ proposed information collection request Committee Act (FACA), 5 U.S.C., App., administration/advisory-boards/pmab) for public comment. Interested persons are invited to send comments regarding and Executive Order 13538, will hold a for any available materials. this burden estimate or any other aspect public teleconference meeting on Procedures for Providing Public September 23, 2011. of this collection of information, Comments: In general, public statements including any of the following subjects: DATES: Effective date: August 30, 2011. will be posted on the White House Web (1) The necessity and utility of the Meeting date: The teleconference site (http://www.whitehouse.gov/ proposed information collection for the meeting will be held on Friday, administration/advisory-boards/pmab). proper performance of the agency’s September 23, 2011, beginning at 10:30 Non-electronic documents will be made functions; (2) the accuracy of the a.m. eastern time, ending no later than available for public inspection and estimated burden; (3) ways to enhance 12 p.m. copying in PMAB offices at GSA, 1776 the quality, utility, and clarity of the FOR FURTHER INFORMATION CONTACT: Mr. G Street NW., Washington, DC 20006, information to be collected; and (4) the Stephen Brockelman, Designated on official business days between the use of automated collection techniques Federal Officer, President’s Management hours of 10 a.m. and 5 p.m. eastern or other forms of information Advisory Board, Office of Executive time. You can make an appointment to technology to minimize the information Councils, General Services inspect statements by telephoning (202) collection burden. Administration, 1776 G Street NW., 501–1398. All statements, including To obtain copies of the supporting Washington, DC 20006, at attachments and other supporting statement and any related forms for the [email protected]. materials received, are part of the public proposed paperwork collections SUPPLEMENTARY INFORMATION: record and subject to public disclosure. referenced above, e-mail your request, Background: The PMAB was Any statements submitted in connection including your address, phone number, established to provide independent with the PMAB meeting will be made OMB number, and OS document advice and recommendations to the available to the public under the identifier, to President and the President’s provisions of the Federal Advisory [email protected], or call Management Council on a wide range of Committee Act. the Reports Clearance Office on (202) issues related to the development of The public is invited to submit 690–6162. Written comments and effective strategies for the written statements for this meeting to recommendations for the proposed implementation of best business the Advisory Committee prior to the information collections must be directed practices to improve Federal meeting no later than 5 p.m. on to the OS Paperwork Clearance Officer Government management and September 22, 2011, preferably earlier, at the above email address within 60- operation, with a particular focus on by either of the following methods: days. productivity and the application of Proposed Project: The Office of technology. Electronic Statements: Submit written Adolescent Health (OAH) Teen Agenda: The main purpose of this statements to Stephen Brockelman, Pregnancy Prevention Performance meeting is for the full PMAB to discuss Designated Federal Officer at Measure Collection—OMB No. OS– and vote on initial recommendations [email protected]; or 0990–NEW—Office of Adolescent presented by PMAB’s Information Paper Statements: Send paper Health and the Administration for Technology (IT) and Senior Executive statements in triplicate to Stephen Children Youth and Families. Service (SES) subcommittees. The Board Brockelman at President’s Management Abstract: The Office of Adolescent is examining recommendations and Advisory Board, Office of Executive Health (OAH) and the Administration leading business practices that have the Councils, General Services for Children, Youth and Families potential to improve government Administration, 1776 G Street, NW., (ACYF), under the U.S. Department of performance in the areas of IT portfolio Washington, DC 20006. Health and Human Services (HHS), are and project management, IT vendor funding a total of 107 grantees to performance management, SES Dated: August 22, 2011. conduct teen pregnancy prevention leadership development, and SES Robert Flaak, programs. Grantees are funded to either performance appraisal systems. The Director, Office of Committee and Regulatory replicate evidence-based teen pregnancy meeting minutes will be available after Management, General Services prevention programs (75 OAH grantees) the meeting on the PMAB Web site. Administration. or to implement research and http://www.whitehouse.gov/ [FR Doc. 2011–22149 Filed 8–29–11; 8:45 am] demonstration programs to test new and administration/advisory-boards/pmab. BILLING CODE 6820–BR–P innovative approaches to teen

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pregnancy prevention (19 OAH grantees settings), populations served (middle collection is important to OAH and and 13 ACYF grantees). Grants are school students, high school students, ACYF because it will provide the funded for 5 years at levels ranging from parents of teens) and content (e.g., youth agency with data both to effectively $400,000 to $4 million per year. development programs or sex education monitor these programs, and to comply Interventions for these different programs). Funding requirements for the with accountability and Federal programs vary widely in terms of grantees included the collection and performance requirements for the 1993 duration (from 1 day to 4 years), setting reporting of data for performance Government Performance and Results (schools, clinics, or community based measurement. The performance measure Act (Pub. L. 103–62).

ESTIMATED ANNUALIZED BURDEN TABLE

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

Perceived impact questions ...... Youth participating in programs ...... 100,000 1 5/60 8,333 Reporting form for reach ...... Grantee program staff ...... 107 2 4 856 Tier 1 A/B performance measure re- Grantee program staff—Tier 1 A/B .. 59 1 19 1121 porting form. Tier 1 C/D and Tier 2/PREIS per- Grantee program staff—Tier 1 C/D 48 1 21 1008 formance measure reporting form. and Tier 2/PREIS.

Total ...... 11,318

Mary Forbes, referenced above, e-mail your request, supporting the sustainability of the Office of the Secretary, Paperwork Reduction including your address, phone number, community-wide teen pregnancy Act Clearance Officer. OMB number, and OS document prevention effort. [FR Doc. 2011–22168 Filed 8–29–11; 8:45 am] identifier, to The main objective for the proposed BILLING CODE 4150–32–P [email protected], or call Outcome Evaluation of Teenage the Reports Clearance Office on (202) Pregnancy Prevention: Integrating 690–5683. Send written comments and Services, Programs, and Strategies DEPARTMENT OF HEALTH AND recommendations for the proposed through Community-wide Initiatives is HUMAN SERVICES information collections within 30 days to measure risk behaviors, pregnancies, of this notice directly to the OS OMB [Document Identifier: OS–0990–New; 30-day and use of contraceptives and family notice] Desk Officer; faxed to OMB at 202–395– planning services among youth. The 5806. data collection instrument for the Proposed Project: Outcome Evaluation Agency Information Collection proposed study is a modified version of of Teenage Pregnancy Prevention: Request. 30-Day Public Comment a recently approved survey (OMB No. Request Integrating Services, Programs, and Strategies through Community-wide 0970–0360 Expiration date 7/31/2013). AGENCY: Office of the Secretary, HHS. Initiatives—OMB No. 0990–NEW- Clearance is being requested to expand In compliance with the requirement Office of Adolescent Pregnancy the utilization of a modified version of of section 3506(c)(2)(A) of the Programs. the previously-approved instrument. Paperwork Reduction Act of 1995, the The Office of Adolescent Health and The Outcome Evaluation of Teenage Office of the Secretary (OS), Department the Centers for Disease Control and Pregnancy Prevention: Integrating of Health and Human Services, is Prevention (CDC) are working Services, Programs, and Strategies publishing the following summary of a collaboratively to address the high through Community-wide Initiatives proposed collection for public pregnancy rate of women between the will focus on the combined change of comment. Interested persons are invited ages of 15–19 by demonstrating the two proportions: (1) The proportion of to send comments regarding this burden effectiveness of innovative, multi- youth who have not engaged in sexual estimate or any other aspect of this component, community-wide initiatives intercourse during the past 12 months collection of information, including any in preventing teen pregnancy and and (2) the proportion of youth who of the following subjects: (1) The reducing rates of teen births in have engaged in sexual intercourse but necessity and utility of the proposed communities with the highest rates, have used contraception consistently information collection for the proper with a focus on reaching African during the past 12 months. To performance of the agency’s functions; American and Latino youth aged 15–19. determine if the change in this (2) the accuracy of the estimated Components of these efforts include (1) proportion of interest in the burden; (3) ways to enhance the quality, Implementing evidence-based or intervention community is significantly utility, and clarity of the information to evidence-informed prevention different from the control community is be collected; and (4) the use of programs; (2) linking teens to quality one of the most important parameters to automated collection techniques or health services; (3) educating be estimated. Power analysis other forms of information technology to stakeholders (community leaders, determined that 1,200 surveys per minimize the information collection parents and other constituents) about community will be sufficient to detect burden. relevant evidence-based or evidence- this difference. The precise number of To obtain copies of the supporting informed strategies to reduce teen youth surveyed will depend on the statement and any related forms for the pregnancy and data on needs and response rates, and will be between proposed paperwork collections resources in target communities; and (4) 1,200 and 1,500 per community.

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TABLE—ESTIMATED ANNUALIZED BURDEN

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

Evaluation of Adolescent Pregnancy Prevention Youth aged 15–19 ...... 9,000 1 45/60 6,750 Approaches Household Survey.

Mary Forbes, the Secretary, who will designate one or definitions related to quality, affordable Office of the Secretary, Paperwork Reduction more Board Members to decide each health care for all Americans. Act Clearance Officer. appeal. The Board’s decision on an Part II—Consumer Choices and [FR Doc. 2011–22166 Filed 8–29–11; 8:45 am] appeal will be final and binding unless Insurance Competition Through Health reopened and revised pursuant to 45 BILLING CODE 4150–32–P Benefit Exchanges CFR 149.610. Section 1103—The authorities Section 1311—The authorities DEPARTMENT OF HEALTH AND pursuant to section 1103 [42 U.S.C. pursuant to section 1311 [42 USC HUMAN SERVICES 18003], as amended, to establish a 18031], as amended, pertaining to mechanism, including an Internet Web affordable choices of health benefit Delegation of Authorities site, through which a resident of any plans, in particular, the American Notice is hereby given that I have State may identify affordable health Health Benefit Exchanges (AHBE). CMS delegated to the Administrator, Centers insurance coverage options in that State. will coordinate with the Department of Labor under section 1311(e)(3)(B) [42 for Medicare & Medicaid Services Subtitle C—Quality Health Insurance (CMS), or his or her successor, the USC 18031(e)(3)(B)]. Coverage for All Americans Section 1312—The authorities authorities vested in the Secretary for pursuant to section 1312 [42 USC the following provisions of Titles I, II, Part II—Other Provisions 18032], as amended, pertaining to and X of the Affordable Care Act, Section 1251—The authorities consumer choice, payment of premiums including Title XXVII of the Public pursuant to section 1251 [42 USC by qualified individuals, single risk Health Service Act insofar as such parts 18011], as amended, to preserve the pool, enrollment through agents or pertain to CMS’ mission, as described in right of individuals and groups to brokers, and qualified individuals and section F.00 of CMS’ Statement of maintain existing health insurance employers (access limited to citizens Organization, Functions, and coverage. and lawful residents). Delegations of Authority, last published Section 1252—The authorities Section 1313(a)—The authorities at 55 FR 9363 (March 13, 1990). pursuant to section 1252 [42 USC pursuant to section 1313(a) [42 USC 18012], as amended, to uniformly apply Title I—Quality, Affordable Health 18033(a)], as amended, pertaining to rate reforms to all health insurance Care for All Americans financial integrity involving accounting issuers and group health plans. for expenditures, investigations, audits, Subtitle B—Immediate Actions to Subtitle D—Available Coverage Choices pattern of abuse, protections against Preserve and Expand Coverage for All Americans fraud and abuse, and applying the False Section 1101—The authorities Claims Act. CMS will coordinate with Part I—Establishment of Qualified pursuant to section 1101 [42 U.S.C. the Office of the Inspector General to Health Plans 18001], as amended, to establish a investigate the affairs of an AHBE, to temporary high risk health insurance Section 1301—The authorities examine the properties and records of pool program to provide health pursuant to section 1301 [42 U.S.C. an AHBE, and to require periodic insurance coverage for eligible 18021], as amended, pertaining to reports in relation to activities individuals during the period beginning defining qualified health plans. undertaken by an AHBE under section on the date on which such program is Section 1302—The authorities 1313(a)(2) [42 USC 18033(a)(2)]. established and ending on January 1, pursuant to section 1302 [42 U.S.C. 2014. 18022], as amended, pertaining to Part III—State Flexibility Relating to Section 1102—The authorities essential health benefits requirements, Exchanges pursuant to section 1102 [42 U.S.C. including a certification from the Chief Section 1321—The authorities 18002], as amended, to establish a Actuary of the Centers for Medicare & pursuant to section 1321 [42 U.S.C. temporary reinsurance program to Medicaid Services that such essential 18041], as amended, pertaining to the provide reimbursement to participating health benefits meet the limitation State’s flexibility in operation and employment-based plans for a portion of described in Section 1302(b)(2) [42 enforcement of AHBE and related the cost of providing health insurance U.S.C. 18022(b)(2)]. requirements. CMS will consult with coverage to early retirees (and to the Section 1303—The authorities the National Association of Insurance eligible spouses, surviving spouses, and pursuant to section 1303 [42 U.S.C. Commissioners under section 1321(a)(2) dependents of such retirees) during the 18023], as amended, pertaining to State [42 U.S.C. 18041(a)(2)]. period beginning on the date on which opt-out of abortion coverage, special Sections 1322(a)–(b)(1) and (2), (c)–(g) such program is established and ending rules relating to coverage of abortion and (h)(1)—The authorities pursuant to on January 1, 2014. The authority to services, applying State and Federal sections 1322(a)–(b)(1) and (2), (c)–(g) accept and review appeals of adverse laws regarding abortion, and applying [42 USC 18042] and (h)(1) [26 U.S.C. reimbursement determinations under emergency services. 501(c)(29)], as amended, to establish the the reinsurance program is, however, Section 1304—The authorities Consumer Operated and Oriented Plan delegated to the Chair of the pursuant to section 1304 [42 U.S.C. Program to assist establishment and Departmental Appeals Board, Office of 18024], as amended, pertaining to operation of non-profit, member-run

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health insurance issuers. CMS will Association of Insurance Commissioners Section 1411—The authorities coordinate with the Department of the to publish regulations pursuant to pursuant to section 1411 [42 U.S.C. Treasury to establish criteria and section 1333(a)(1) [42 U.S.C. 18081], as amended, to determine procedures for tax exemption under 18053(a)(1)]. eligibility for exchange participation, section 501(c)(29) of the Internal premium tax credits and reduced cost- Part V—Reinsurance and Risk Revenue Code of 1986 [26 U.S.C. Adjustment sharing, and individual responsibility 501(c)(29)] for qualified nonprofit health exemptions. CMS will consult with: (1) insurance issuers. Section 1341—The authorities The Department of Homeland Security Section 1323—The authorities pursuant to section 1341 [42 U.S.C. pursuant to section 1411(b)(2)(B) [42 pursuant to section 1323 [42 U.S.C. 18061], as amended, pertaining to the U.S.C. 18081(b)(2)(B)]; 2) the 18043], as amended, to fund territories transitional reinsurance program for Departments of the Treasury, and that elect to establish an AHBE. individual and small group markets in Homeland Security, and the Social Section 1324—The authorities each State. CMS will coordinate with Security Administration pursuant to pursuant to section 1324 [42 U.S.C. the National Association of Insurance sections 1411(c)(4)(A) [42 U.S.C. 18044], as amended, pertaining to Commissioners to publish regulations 18081(c)(4)(A)] and 1411(f)(1) [42 U.S.C. health insurance coverage offered by a pursuant to section 1321(a) [42 U.S.C. 18081(f)(1)]; and 3) the Department of private health insurance issuer, which 18041]. the Treasury pursuant to section would not be subject to the Federal or Section 1342—The authorities 1411(i)(1) [42 U.S.C. 18081(i)(1)]. State laws described in section 1324(b) pursuant to section 1342 [42 U.S.C. Section 1412—The authorities [42 U.S.C. 18044(b)] if a qualified health 18062], as amended, to establish and pursuant to section 1412 [42 U.S.C. plan offered under the Consumer administer a program of risk corridors 18082), as amended, pertaining to Operated and Oriented Plan program under which a qualified health plan advance determinations made pursuant under section 1322 [42 U.S.C. 18042] or offered in the individual or small group to section 1411 [42 U.S.C. 18081] with a multi-State qualified health plan market shall participate in a payment respect to the income eligibility of under section 1334 [42 USC 18054] adjustment system based on the ratio of individuals enrolling in a qualified were not subject to such laws. the allowable costs of the health plan to health plan in the individual market the health plan’s aggregate premiums through the AHBE for the premium tax Part IV—State Flexibility to Establish based on the program for regional credit allowable pursuant to section Alternative Programs participating provider organizations 1401(a) [26 U.S.C. 36B] and the cost- Section 1331—The authorities under part D of Title XVIII of the Social sharing reductions under section 1402 pursuant to section 1331 [42 USC Security Act. 18051], as amended, to establish basic Section 1343(b)—The authorities [42 U.S.C. 18071]. CMS will consult health programs for low-income pursuant to section 1343(b) [42 U.S.C. with the Department of the Treasury. individuals not eligible for Medicaid, 18063(b)], as amended, to establish Section 1413—The authorities and allowing States the flexibility to criteria and methods used in carrying pursuant to section 1413 [42 U.S.C. establish alternative programs by out risk adjustment activities pursuant 18083), as amended, to streamline entering into contracts to offer one or to section 1343 [42 USC 18063] with procedures for enrollment through an more standard health plans providing at respect to health insurance plans and AHBE and State Medicaid, CHIP, and least the essential health benefits coverage. health subsidy programs. Section 1414(a)(1)—The authorities described in section 1302(b) [42 U.S.C. Subtitle E—Affordable Coverage pursuant to section 6103(l)(21) of the 18022(b)] to eligible individuals in lieu Choices for All Americans Internal Revenue Code of 1986 [26 of offering such individuals coverage U.S.C. 6103(l)(21)], as amended, through an Exchange. The Chief Actuary Part I—Premium Tax Credits and Cost- pertaining to disclosure of taxpayer in the Office of the Actuary, CMS, will Sharing Reductions return information and Social Security certify whether the methodology used to Subpart A—Premium Tax Credits and numbers. make determinations pursuant to Cost-Sharing Reductions Section 1414(a)(2)—The authorities section 1331(d)(3) (A)(iii) [42 U.S.C. Section 1401(a)—The authorities pursuant to section 205(c)(2)(C)(x) of the 18051(d)(3)(A)(iii)], and such pursuant to section 1401(a) [26 USC Social Security Act [42 U.S.C. determinations, meet the requirements 36B], as amended, pertaining to 405(c)(2)(C)(x)], as amended, to collect of section 1331(d)(3)(A)(ii) [42 U.S.C. refundable credit for coverage under a and use the names and Social Security 18051(d)(3)(A)(ii)] in consultation with qualified health plan. CMS will consult account numbers of individuals as the Office of Tax Analysis of the with the Department of the Treasury required to administer the provisions of Department of the Treasury. pursuant to the Internal Revenue Code Section 1332—The authorities the Social Security Act and of 1986 section 36B(e)(3) [26 U.S.C. amendments made by the Affordable pursuant to section 1332 [42 U.S.C. 36B(e)(3)] to prescribe rules setting forth 18052], as amended, pertaining to Care Act. the methods by which calculations of Section 1415—The authorities waivers for State innovations with family size and household income are pursuant to section 1415 [42 U.S.C. respect to health insurance coverage made, and carry out the activities set out 18084], as amended, pertaining to within the State for plan years pursuant to 26 U.S.C. 36B [26 U.S.C. premium tax credit and cost-sharing beginning on or after January 1, 2017. 36B], such as determinations of reduction payments disregarded for CMS will coordinate with the premiums. Federal and federally-assisted programs. Department of the Treasury to publish Section 1402—The authorities regulations pursuant to section pursuant to section 1402 [42 U.S.C. Subtitle F—Shared Responsibility for 1332(a)(4)(B) [42 U.S.C. 18052(a)(4)(B)]. 18071], as amended, pertaining to Health Care Section 1333—The authorities reduced cost-sharing for individuals pursuant to section 1333 [42 U.S.C. enrolling in qualified health plans. CMS Part I—Individual Responsibility 18053], as amended, pertaining to will consult with the Department of the Sections 1501(a) and (b)—The offering plans in more than one State. Treasury pursuant to section 1402(e)(3) authorities pursuant to section 1501(a) CMS will coordinate with the National [42 U.S.C. 18071(e)(3)]. [42 U.S.C. 18091(a)], as amended, and

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pursuant to section 1501(b) [26 U.S.C. (4) assisted or participated, or is about employer-sponsored coverage pursuant 5000A], as amended, to maintain to assist or participate, in such a to section 1302(b)(2)(A) [42 minimal essential coverage for health proceeding; or (5) objected to, or refused U.S.C.18022(b)(2)(A)] to determine the care, except for the last paragraph of 26 to participate in, any activity, policy, benefits typically covered by employers, U.S.C. 5000A(e)(4). practice, or assigned task that the including multi-employer plans and the employee (or other such person) authority to submit a report pursuant to Part II—Employer Responsibilities reasonably believed to be in violation of section 1302(b)(2)(B) [42 U.S.C. Section 1511—The authorities any provision of Title 29 of the United 18022(b)(2)(B)] to the appropriate pursuant to 29 USC 218A, as amended, States Code (or amendment), or any committees of Congress. to automatically enroll employees of order, rule, regulation, standard, or ban (2) Section 1311(e)(3)(D)—The large employers that have more than 200 pursuant to Title 29 of the United States authority to update and harmonize rules full-time employees, and that offer Code (or amendment). concerning the accurate and timely employees enrollment in 1 or more disclosure to participants by group health benefits plans (subject to any Title II—Role of Public Programs health plans of plan disclosure, plan waiting period authorized by law) and Subtitle C—Medicaid and CHIP terms and conditions, and periodic to continue the enrollment of current Enrollment Simplification financial disclosure with the standards employees in a health benefits plan Section 2201—The authority pursuant established pursuant to section offered through the employer. to section 2201 [42 U.S.C. 1396w–3, 1311(e)(3)(D) [42 U.S.C. 18031(e)(3)(A)]. Section 1512—The authorities (3) Sections 1322(b)(4)—The authority section 1943 of the Social Security Act], pursuant to 29 U.S.C. 218B, as to appoint 15 members to the Consumer as amended, pertaining to enrollment amended, to provide notice to Operated and Oriented Plan Advisory simplification and coordination with employees of coverage options. Board pursuant to section 1322(b)(4) [42 State Health Insurance Exchanges. Section 1513(a)—The authorities U.S.C. 18042(b)(4)]. pursuant to section 1513(a) [26 U.S.C. Subtitle K—Protections for American (4) Section 1332—The authorities 4980H], as amended, pertaining to Indians and Alaska Natives with respect to health insurance shared responsibility for employers Sections 2901(a) and (b)—The coverage within the State for plan years regarding health coverage. CMS will authorities pursuant to section 2901(a) beginning on or after January 1, 2014, consult with the Department of Labor and (b) [25 U.S.C. 1623(a) and (b)], as pursuant to section 1332(a)(2)(D) [42 pursuant to 26 U.S.C. 4980H(c)(4)(B) to amended, pertaining to special rules U.S.C. 18052(a)(2)(D)] including determine the hours of service of an relating to Indians. CMS will coordinate sections 36B [26 U.S.C. 36B], 4980H [26 employee necessary to qualify under 26 with the Indian Health Service pursuant U.S.C. 4980H], and 5000A [26 U.S.C. U.S.C. 4980H(c)(4) as a ‘‘full-time to section 2901(b) [25 U.S.C. 1623(b)]. 5000A] of the Internal Revenue Code of employee’’ for purposes of coverage 1986, pertaining to reports to Congress under the Affordable Care Act. Title X—Strengthening Quality, pursuant to section 1332(a)(4)(C) [42 Section 1514(a)—The authorities Affordable Health Care for All U.S.C. 18052(a)(4)(C)], and to notify the pursuant to section 6056 [26 U.S.C. Americans appropriate committees of Congress 6056] of the Internal Revenue Code of Section 10108(a)–(e)—The authorities pursuant to section 1332(d)(2)(B) [42 1986, as amended, to review the under section 10108(a)–(e) [42 USC U.S.C. 18052(d)(2)(B)]. accuracy of health insurance 18101(a)–(e)], as amended, pertaining to (5) Section 1411(i)(2)—The authority information provided by large an offering employer providing free under section 1411(i)(2) [42 U.S.C. employers who are required to report on choice vouchers to each qualified 18081(i)(2)] of the Affordable Care Act health insurance coverage. employee through an employer- to issue a report of the results of the Subtitle G—Miscellaneous Provisions sponsored health insurance plan. study conducted under section Title XXVII of the Public Health 1411(i)(1) [42 U.S.C. 18081(i)(1)], Section 1558—The authority pursuant Service Act, as amended, including the including any recommendations for to section 1558 [29 U.S.C. 218C], as authority to conduct studies and legislative changes to the Committees on amended, to prohibit employers from demonstration projects, as directed by Finance and Health, Education, Labor, discharging or in any manner Congress, relating to Title XXVII of the and Pensions of the Senate, and the discriminating against any employee Public Health Service Act. The Committees of Education and Labor and with respect to his or her compensation, delegation includes, but does not limit Ways and Means of the House of terms, conditions, or other privileges of the authority to, directing performance, Representatives. employment because the employee (or entering into contracts or cooperative (6) Section 1412(c)(2)—The authority an individual acting at the request of the agreements, making grants, approving under section 1412(c)(2) [42 U.S.C. employee) has: (1) Received a credit payments for contracts, cooperative 18082(c)(2)] to make advance payments pursuant to section 36B of the Internal agreements, and grants, and approving under section 1412 [42 U.S.C. 18082] of Revenue Code of 1986 or a subsidy authorized waivers of compliance with any premium tax credit allowed under pursuant to section 1402 of the certain requirements of Title XXVII of section 36B of the Internal Revenue Affordable Care Act; (2) provided, the Public Health Service Act when Code of 1986 [26 U.S.C. 36B] to the caused to be provided, or is about to such authorities are for the purpose of issuer of a qualified health plan on a provide or cause to be provided to the conducting studies and demonstration monthly basis. employer, the Federal Government, or projects. (7) Section 1414(a)(1)—The authority the attorney general of a State This delegation of authorities to prescribe regulations to disclose information relating to any violation of, excludes the authorities to issue return information indicating whether or any act or omission the employee regulations, to submit reports to the taxpayer is eligible for a tax credit reasonably believes to be a violation of, Congress, and the following authorities, or reduction (and the amount thereof) any provision of this title (or an as amended by the indicated sections of pursuant to 26 U.S.C. 6103(l)(21)(A)(v). amendment made by this title); (3) the Affordable Care Act: (8) Section 1501(b)—The authority to testified or is about to testify in a (1) Section 1302(b)(2)(A) and (B)— prescribe rules for the collection of the proceeding concerning such violation; The authority to conduct a survey of penalty imposed in cases where

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continuous periods include months in Department of Health and Human substance is available or in the process more than one taxable year pursuant to Services (HHS). of development. When adequate the last paragraph of 26 U.S.C. ACTION: Notice of availability. information is not available, ATSDR, in 5000A(e)(4). cooperation with the National This delegation of authorities SUMMARY: This notice announces the Toxicology Program (NTP), may plan a supersedes the authorities delegated availability of one toxicological profile, program of research designed to under Title XXVII of the Public Health prepared by ATSDR for the Department determine these health effects. of Defense, on Royal Demolition Service Act that were published in the Notice of the availability of the draft Federal Register notice on June 23, 1998 eXplosive (RDX), chemical name hexahydro-1,3,5-trinitro-1,3,5-triazine, profile for public review and comment (63 FR 34190). was published in the Federal Register This delegation of authorities is also known as cyclonite. on August 26, 2010, (75 FR 52535), with effective immediately. FOR FURTHER INFORMATION CONTACT: Ms. notice of a 90-day public comment These authorities may be re-delegated. Delores Grant, Division of Toxicology period starting from the actual release These authorities shall be exercised and Environmental Medicine, Agency date. Following the close of the under the Department’s policy on for Toxic Substances and Disease comment period, chemical-specific regulations and the existing delegation Registry, Mailstop F–62, 1600 Clifton comments were addressed, and, where of authority to approve and issue Road, NE., Atlanta, Georgia 30333, appropriate, changes were incorporated regulations. telephone (770) 488–3351. I hereby affirm and ratify any actions into each profile. The public comments SUPPLEMENTARY INFORMATION: The and other data submitted in response to taken by the Administrator, CMS, or his Superfund Amendments and or her subordinates, which involved the the Federal Register notice bears the Reauthorization Act (SARA) of 1986 docket control number ATSDR–266. exercise of the authorities under Titles (Pub. L. 99–499) amended the I, II, and X of the Affordable Care Act, This material is available for public Comprehensive Environmental inspection at the Agency for Toxic including Title XXVII of the Public Response, Compensation, and Liability Health Service Act delegated herein Substances and Disease Registry, 4700 Act (CERCLA or Superfund). Section Buford Highway, Building 106, Second prior to the effective date of this 211 of SARA also amended Title 10 of delegation of authorities. Floor, Chamblee, Georgia 30341 the U.S. Code, creating the Defense between 8 a.m. and 4:30 p.m., Monday Authority: 44 U.S.C. 3101. Environmental Restoration Program. through Friday, except legal holidays. Dated: August 2, 2011. Section 2704 of Title 10 of the U.S. Code Kathleen Sebelius, directs the Secretary of Defense to notify Availability Secretary. the Secretary of Health and Human Services (HHS) of not less than 25 of the This notice announces the availability [FR Doc. 2011–22042 Filed 8–29–11; 8:45 am] most commonly found unregulated of one updated final toxicological BILLING CODE 4120–01–P hazardous substances at defense profile, RDX, prepared by ATSDR for facilities. The Secretary of HHS is to the Department of Defense. Electronic prepare toxicological profiles of these access to this document is available at DEPARTMENT OF HEALTH AND the ATSDR Web site: http:// HUMAN SERVICES substances. Each profile is to include an examination, summary and www.atsdr.cdc.gov/toxprofiles/ index.asp. Agency for Toxic Substances and interpretation of available toxicological Disease Registry information and epidemiologic A printed copy of this toxicological evaluations. This information is used to profile is available through the U.S. [ATSDR–270] ascertain the level of significant human Department of Commerce, National Availability of Final Toxicological exposure for the substance and the Technical Information Service (NTIS), Profile for RDX associated health effects. The 5285 Port Royal Road, Springfield, toxicological profile includes a Virginia 22161, telephone 1–800–553– AGENCY: Agency for Toxic Substances determination of whether adequate 6847. There is a charge for this profile and Disease Registry (ATSDR), information on the health effects of each as determined by NTIS.

NTIS Order Hazardous substance No. CAS Number

RDX ...... PB2011–xxx 121–82–4

Dated: August 24, 2011. DEPARTMENT OF HEALTH AND 412 of the Act] for each State agency Ken Rose, HUMAN SERVICES requesting Federal funding for refugee Director, Office of Policy, Planning and resettlement under 8 U.S.C. 524 [Title Evaluation, National Center for Administration for Children and IV, Sec. 414 of the Act], including Environmental Health/Agency for Toxic Families Refugee Cash and Medical Assistance, Substances and Disease Registry. Refugee Social Services, and Targeted Proposed Information Collection [FR Doc. 2011–22080 Filed 8–29–11; 8:45 am] Activity; Comment Request Assistance program funding. The State BILLING CODE 4163–70–P Plan is a comprehensive narrative Title: ORR State Plan for Grants to description of the nature and scope of States for Refugee Resettlement. a States programs and provides OMB No. 0970–0351. assurances that the programs will be Description: A State Plan is required administered in conformity with the by 8 U.S.C. 1522 of the Immigration and specific requirements stipulated in 45 Nationality Act (the Act) [Title IV, Sec. CFR 400.4–400.9. The State Plan must

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include all applicable State procedures, all of the State plan requirements under that the approved plan is current and designations, and certifications for each Title IV of the Act and ORR regulations continues in effect, no later than 30 days requirement as well as supporting at 45 CFR part 400. after the beginning of the Federal fiscal documentation. A State may use a pre- There is no schedule for submission year. Consistent with regulations, if print format prepared by the Office of of this State Plan, as all States are States wish to revise or amend the plan, Refugee Resettlement (ORR) of the currently operating under an approved a revised plan or plan amendment must Administration for Children and plan and are in compliance with be submitted to ORR as described at 45 Families (ACF) or a different format, on regulations at 45 CFR 400.4 400.9. Per CFR 400.7 400.9. the condition that the format used meets 45 CFR 400.4(b), States need only certify Respondents:

ANNUAL BURDEN ESTIMATES

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

Title IV State Plan ...... 50 1 15 750

Estimated Total Annual Burden DEPARTMENT OF HEALTH AND dosage form as the ‘‘listed drug,’’ which Hours: 750. HUMAN SERVICES is a version of the drug that was In compliance with the requirements previously approved. ANDA applicants Food and Drug Administration of Section 3506(c)(2)(A) of the do not have to repeat the extensive Paperwork Reduction Act of 1995, the [Docket No. FDA–2011–P–0460] clinical testing otherwise necessary to gain approval of a new drug application Administration for Children and (NDA). The only clinical data required Families is soliciting public comment Determination That TALWIN COMPOUND (Aspirin; Pentazocine in an ANDA are data to show that the on the specific aspects of the Hydrochloride) Tablets, 325 Milligrams; drug that is the subject of the ANDA is information collection described above. Equivalent to 12.5 Milligram Base, bioequivalent to the listed drug. Copies of the proposed collection of Were Not Withdrawn From Sale for The 1984 amendments include what information can be obtained and Reasons of Safety or Effectiveness is now section 505(j)(7) of the Federal comments may be forwarded by writing Food, Drug, and Cosmetic Act (21 U.S.C. to the Administration for Children and AGENCY: Food and Drug Administration, 355(j)(7)), which requires FDA to Families, Office of Administration, HHS. publish a list of all approved drugs. Office of Information Services, 370 ACTION: Notice. FDA publishes this list as part of the L’Enfant Promenade, SW., Washington, ‘‘Approved Drug Products with DC 20447, Attn: ACF Reports Clearance SUMMARY: The Food and Drug Therapeutic Equivalence Evaluations,’’ Officer. E-mail address: Administration (FDA) has determined which is known generally as the [email protected]. All requests that TALWIN COMPOUND (aspirin; ‘‘Orange Book.’’ Under FDA regulations, should be identified by the title of the pentazocine hydrochloride (HCl)) drugs are removed from the list if the information collection. tablets, 325 milligrams (mg); equivalent Agency withdraws or suspends to (EQ) 12.5 mg base, were not approval of the drug’s NDA or ANDA The Department specifically requests withdrawn from sale for reasons of comments on: (a) Whether the proposed for reasons of safety or effectiveness or safety or effectiveness. This if FDA determines that the listed drug collection of information is necessary determination will allow FDA to was withdrawn from sale for reasons of for the proper performance of the approve abbreviated new drug safety or effectiveness (21 CFR 314.162). functions of the agency, including applications (ANDAs) for aspirin; A person may petition the Agency to whether the information shall have pentazocine HCl tablets, 325 mg; EQ determine, or the Agency may practical utility; (b) the accuracy of the 12.5 mg base, if all other legal and determine on its own initiative, whether agency’s estimate of the burden of the regulatory requirements are met. a listed drug was withdrawn from sale proposed collection of information; (c) FOR FURTHER INFORMATION CONTACT: Nam for reasons of safety or effectiveness. the quality, utility, and clarity of the Kim, Center for Drug Evaluation and This determination may be made at any information to be collected; and (d) Research, Food and Drug time after the drug has been withdrawn ways to minimize the burden of the Administration, 10903 New Hampshire from sale, but must be made prior to collection of information on Ave., Bldg. 51, rm. 6320, Silver Spring, approving an ANDA that refers to the respondents, including through the use MD 20993–0002, 301–796–3601. listed drug (§ 314.161 (21 CFR 314.161)). of automated collection techniques or SUPPLEMENTARY INFORMATION: In 1984, FDA may not approve an ANDA that other forms of information technology. Congress enacted the Drug Price does not refer to a listed drug. Consideration will be given to Competition and Patent Term TALWIN COMPOUND (aspirin; comments and suggestions submitted Restoration Act of 1984 (Pub. L. 98–417) pentazocine HCl) tablets, 325 mg; EQ within 60 days of this publication. (the 1984 amendments), which 12.5 mg base, are the subject of NDA authorized the approval of duplicate 016891, held by Sanofi-aventis U.S., and Robert Sargis, versions of drug products under an initially approved on November 12, Reports Clearance Officer. ANDA procedure. ANDA applicants 1975. TALWIN COMPOUND tablets are [FR Doc. 2011–22078 Filed 8–29–11; 8:45 am] must, with certain exceptions, show that indicated for the relief of moderate pain. BILLING CODE 4184–01–P the drug for which they are seeking TALWIN COMPOUND (aspirin; approval contains the same active pentazocine HCl) tablets, 325 mg; EQ ingredient in the same strength and 12.5 mg base, are currently listed in the

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‘‘Discontinued Drug Product List’’ DEPARTMENT OF HEALTH AND FDA publishes this list as part of the section of the Orange Book. HUMAN SERVICES ‘‘Approved Drug Products With Lachman Consultant Services, Inc., Therapeutic Equivalence Evaluations,’’ Food and Drug Administration submitted a citizen petition dated June which is known generally as the 7, 2011 (Docket No. FDA–2011–P– [Docket Nos. FDA–2011–P–0182 and FDA– ‘‘Orange Book.’’ Under FDA regulations, 0460), under 21 CFR 10.30, requesting 2011–P–0209] drugs are removed from the list if the Agency withdraws or suspends that the Agency determine whether Determination That OPANA ER approval of the drug’s NDA or ANDA TALWIN COMPOUND (aspirin; (Oxymorphone Hydrochloride) for reasons of safety or effectiveness or pentazocine HCl) tablets, 325 mg; EQ Extended-Release Tablets, 7.5 if FDA determines that the listed drug 12.5 mg base, have been voluntarily Milligrams and 15 Milligrams, Were Not was withdrawn from sale for reasons of withdrawn or withheld from sale for Withdrawn From Sale for Reasons of safety or effectiveness (21 CFR 314.162). reasons of safety or effectiveness. Safety or Effectiveness Under § 314.161(a) (21 CFR After considering the citizen petition 314.161(a)), the Agency must determine and reviewing Agency records and AGENCY: Food and Drug Administration, whether a listed drug was withdrawn based on the information we have at this HHS. from sale for reasons of safety or time, FDA has determined under ACTION: Notice. effectiveness: (1) Before an ANDA that § 314.161 that TALWIN COMPOUND refers to that listed drug may be SUMMARY: (aspirin; pentazocine HCl) tablets, 325 The Food and Drug approved; (2) whenever a listed drug is Administration (FDA) has determined mg; EQ 12.5 mg base, were not voluntarily withdrawn from sale and that OPANA ER (oxymorphone withdrawn for reasons of safety or ANDAs that refer to the listed drug have hydrochloride (HCl)) extended-release effectiveness. The petitioner has been approved; and (3) when a person tablets, 7.5 milligrams (mg) and 15 mg, identified no data or other information petitions for such a determination under were not withdrawn from sale for suggesting that TALWIN COMPOUND §§ 10.25(a) and 10.30 (21 CFR 10.25(a) reasons of safety or effectiveness. This and 10.30). Section 314.161(d) provides (aspirin; pentazocine HCl) tablets, 325 determination means that FDA will not mg; EQ 12.5 mg base, were withdrawn that if FDA determines that a listed drug begin procedures to withdraw approval was withdrawn from sale for reasons of for reasons of safety or effectiveness. We of abbreviated new drug applications have carefully reviewed our files for safety or effectiveness, the Agency will (ANDAs) that refer to these drug initiate proceedings that could result in records concerning the withdrawal of products, and it will allow FDA to TALWIN COMPOUND (aspirin; the withdrawal of approval of the continue to approve ANDAs for ANDAs that refer to the listed drug. pentazocine HCl) tablets, 325 mg; EQ oxymorphone HCl extended-release OPANA ER (oxymorphone HCl) 12.5 mg base, from sale. We have also tablets, 7.5 mg and 15 mg, if all other extended-release tablets, 7.5 mg and 15 independently evaluated relevant legal and regulatory requirements are mg, are the subject of NDA 021610, held literature and data for possible met. postmarketing adverse events. We have by Endo Pharmaceuticals, and initially found no information that would FOR FURTHER INFORMATION CONTACT: Nam approved on June 22, 2006. OPANA ER indicate that this product was Kim, Center for Drug Evaluation and is indicated for the relief of moderate to withdrawn from sale for reasons of Research, Food and Drug severe pain in patients requiring safety or effectiveness. Administration, 10903 New Hampshire continuous, around-the-clock opioid Ave., Bldg. 51, rm. 6320, Silver Spring, treatment for an extended period of Accordingly, the Agency will MD 20993–0002, 301–796–3601. time. continue to list TALWIN COMPOUND SUPPLEMENTARY INFORMATION: In 1984, OPANA ER (oxymorphone HCl) (aspirin; pentazocine HCl) tablets, 325 Congress enacted the Drug Price extended-release tablets, 7.5 mg and 15 mg; EQ 12.5 mg base, in the Competition and Patent Term mg, are currently listed in the ‘‘Discontinued Drug Product List’’ Restoration Act of 1984 (Pub. L. 98–417) ‘‘Discontinued Drug Product List’’ section of the Orange Book. The (the 1984 amendments), which section of the Orange Book. There are ‘‘Discontinued Drug Product List’’ authorized the approval of duplicate approved ANDAs for oxymorphone HCl delineates, among other items, drug versions of drug products under an extended-release tablets, 7.5 mg and 15 products that have been discontinued ANDA procedure. ANDA applicants mg; these ANDAs are listed in the from marketing for reasons other than must, with certain exceptions, show that Orange Book. The other strengths of safety or effectiveness. ANDAs that refer the drug for which they are seeking OPANA ER—both lower and higher to TALWIN COMPOUND (aspirin; approval contains the same active strengths than 7.5 mg and 15 mg— pentazocine HCl) tablets, 325 mg; EQ ingredient in the same strength and continue to be marketed. 12.5 mg base, may be approved by the dosage form as the ‘‘listed drug,’’ which Watson Laboratories, Inc., submitted a Agency as long as they meet all other is a version of the drug that was citizen petition dated March 21, 2011 legal and regulatory requirements for previously approved. ANDA applicants (Docket No. FDA–2011–P–0182), under the approval of ANDAs. If FDA do not have to repeat the extensive § 10.30, requesting that the Agency determines that labeling for this drug clinical testing otherwise necessary to determine whether OPANA ER product should be revised to meet gain approval of a new drug application (oxymorphone HCl) extended-release current standards, the Agency will (NDA). The only clinical data required tablets, 7.5 mg and 15 mg, were advise ANDA applicants to submit such in an ANDA are data to show that the voluntarily withdrawn from sale for labeling. drug that is the subject of the ANDA is reasons of safety or effectiveness. In Dated: August 25, 2011. bioequivalent to the listed drug. addition, K&L Gates submitted a citizen The 1984 amendments include what petition dated March 25, 2011 (Docket Leslie Kux, is now section 505(j)(7) of the Federal No. FDA–2011–P–0209), under § 10.30, Acting Assistant Commissioner for Policy. Food, Drug, and Cosmetic Act (21 U.S.C. requesting that the Agency determine [FR Doc. 2011–22145 Filed 8–29–11; 8:45 am] 355(j)(7)), which requires FDA to that OPANA ER (oxymorphone HCl) BILLING CODE 4160–01–P publish a list of all approved drugs. extended-release tablets, 7.5 mg and 15

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mg, were not discontinued from sale for DEPARTMENT OF HEALTH AND FOR FURTHER INFORMATION CONTACT: reasons of safety or effectiveness. HUMAN SERVICES Russell Wesdyk, Center for Drug After considering the citizen petitions Evaluation and Research, Food and Food and Drug Administration and reviewing Agency records and Drug Administration, 10903 New Hampshire Ave., Bldg. 51, rm. 4182, based on the information we have at this [Docket No. FDA–2011–D–0595] Silver Spring, MD 20993–0002, 301– time, FDA has determined under 796–2400. § 314.161 that OPANA ER Draft Guidance for Industry on Tablet SUPPLEMENTARY INFORMATION: (oxymorphone HCl) extended-release Scoring: Nomenclature, Labeling, and tablets, 7.5 mg and 15 mg, were not Data for Evaluation; Availability I. Background withdrawn for reasons of safety or AGENCY: Food and Drug Administration, FDA is announcing the availability of effectiveness. The petitioners have HHS. a draft guidance for industry entitled identified no data or other information ACTION: Notice. ‘‘Tablet Scoring: Nomenclature, suggesting that OPANA ER Labeling, and Data for Evaluation.’’ This (oxymorphone HCl) extended-release SUMMARY: The Food and Drug draft guidance provides tablets, 7.5 mg and 15 mg, were Administration (FDA) is announcing the recommendations to sponsors of NDAs withdrawn for reasons of safety or availability of a draft guidance for and ANDAs regarding what criteria effectiveness. We have carefully industry entitled ‘‘Tablet Scoring: should be met to facilitate the reviewed our files for records Nomenclature, Labeling, and Data for evaluation and labeling of tablets that concerning the withdrawal of OPANA Evaluation.’’ This draft guidance have been scored. (A scoring feature ER (oxymorphone HCl) extended-release provides recommendations to sponsors facilitates tablet splitting, which is the tablets, 7.5 mg and 15 mg, from sale. We of new drug applications (NDAs) and practice of breaking or cutting a higher- have also independently evaluated abbreviated new drug applications strength tablet into smaller portions.) relevant literature and data for possible (ANDAs) regarding what criteria should Specifically, this draft guidance be met to facilitate the evaluation and recommends: postmarketing adverse events. In • Guidelines to follow, data to addition, we have considered that the labeling of tablets that have been scored. (A scoring feature facilitates tablet provide, and criteria to meet and detail 7.5 mg and 15 mg strengths are splitting, which is the practice of in an application to approve a scored bracketed by other strengths that are breaking or cutting a higher-strength tablet. still being marketed. We have found no • tablet into smaller portions.) Nomenclature and labeling for information that would indicate that Specifically, this draft guidance approved scored tablets. OPANA ER (oxymorphone HCl) recommends guidelines to follow, data The Agency has previously extended-release tablets, 7.5 mg and 15 to provide, and criteria to meet and considered tablet scoring as an issue mg, were withdrawn from sale for detail in an application to approve a when determining whether a generic reasons of safety or effectiveness. scored tablet; and nomenclature and drug product is the same as the reference listed drug (RLD). One Accordingly, the Agency will labeling for approved scored tablets. characteristic of a tablet dosage form is continue to list OPANA ER This guidance does not address specific finished-product release testing, that it may be manufactured with a (oxymorphone HCl) extended-release score or scores. This characteristic is tablets, 7.5 mg and 15 mg, in the where additional requirements may be appropriate for scored tablets. useful because the score can be used to ‘‘Discontinued Drug Product List’’ facilitate the splitting of the tablet into section of the Orange Book. The DATES: Although you can comment on fractions when less than a full tablet is ‘‘Discontinued Drug Product List’’ any guidance at any time (see 21 CFR desired for a dose. Although there are delineates, among other items, drug 10.115(g)(5)), to ensure that the Agency no standards or regulatory requirements products that have been discontinued considers your comment on this draft that specifically address scoring of from marketing for reasons other than guidance before it begins work on the tablets, the Agency recognizes the need safety or effectiveness. FDA will not final version of the guidance, submit for consistent scoring between a generic begin procedures to withdraw approval either electronic or written comments product and its RLD. of ANDAs that refer to these drug on the draft guidance by November 28, Consistent scoring ensures that the products. Additional ANDAs that refer 2011. patient is able to adjust the dose, by to OPANA ER (oxymorphone HCl) ADDRESSES: Submit written requests for splitting the tablet, in the same manner extended-release tablets, 7.5 mg and 15 single copies of the draft guidance to the as the RLD. This enables the patient to mg, may be approved by the Agency as Division of Drug Information, Center for switch between products made by long as they meet all other legal and Drug Evaluation and Research, Food different manufacturers without regulatory requirements for the approval and Drug Administration, 10903 New encountering problems related to the of ANDAs. If FDA determines that Hampshire Ave., Bldg. 51, rm. 2201, dose. In addition, consistent scoring Silver Spring, MD 20993–0002. Send labeling for this drug product should be ensures that neither the generic product one self-addressed adhesive label to revised to meet current standards, the nor the RLD has an advantage in the assist that office in processing your marketplace because one is scored and Agency will advise ANDA applicants to requests. See the SUPPLEMENTARY one is not. submit such labeling. INFORMATION section for electronic CDER’s Drug Safety Oversight Board Dated: August 25, 2011. access to the draft guidance document. considered the practice of tablet Leslie Kux, Submit electronic comments on the splitting at its October 2009 and Acting Assistant Commissioner for Policy. draft guidance to http:// November 2010 meetings. During those www.regulations.gov. Submit written meetings, they discussed how insurance [FR Doc. 2011–22143 Filed 8–29–11; 8:45 am] comments to the Division of Dockets companies and doctors are increasingly BILLING CODE 4160–01–P Management (HFA–305), Food and Drug recommending that patients split Administration, 5630 Fishers Lane, rm. tablets, either to adjust the patients’ 1061, Rockville, MD 20852. dose or as a cost-saving measure.

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Because of this, the Agency conducted comments. It is no longer necessary to product applications, submitted after internal research on tablet splitting and send two copies of mailed comments. September 27, 2007, upon FDA concluded that in some cases, there are Identify comments with the docket approval of such applications. The possible safety issues, especially when number found in brackets in the amount of the fee to be submitted to tablets are not scored or evaluated for heading of this document. Received FDA with applications using a priority splitting. The Agency’s concerns with comments may be seen in the Division review voucher is determined each FY splitting a tablet included variations in of Dockets Management between 9 a.m. based on the average cost incurred by the tablet content, weight, and 4 p.m., Monday through Friday. FDA in the review of a human drug disintegration, or dissolution, which can III. The Paperwork Reduction Act of application subject to priority review in affect how much drug is present in a 1995 the previous FY. This notice establishes split tablet and available for absorption. the priority review fee rate for FY 2012. This draft guidance refers to In addition, there may be stability issues FOR FURTHER INFORMATION CONTACT: previously approved collections of with splitting tablets. David Miller, Office of Financial information found in FDA regulations. Tablet splitting also is addressed in Management (HFA–100), Food and Drug These collections of information are pharmacopeial standards. The European Administration, 1350 Picard Dr., subject to review by the Office of Pharmacopeia currently applies Rockville, MD 20850, 301–796–7103. Management and Budget (OMB) under accuracy of subdivision standards for SUPPLEMENTARY INFORMATION: scored tablets—and has at various times the Paperwork Reduction Act of 1995 also included standards for content (44 U.S.C. 3501–3520). The collections I. Background of information in 21 CFR 201.57, 314.50, uniformity, weight variation, and loss of Section 1102 (under title XI) of and 314.70 have been approved under mass—while the United States FDAAA (Pub. L. 110–85) added new OMB control numbers 0910–0572 (for Pharmacopeia published a Stimuli section 524 to the FD&C Act (21 U.S.C. section 201.57) and 0910–0001 (for part article in 2009 proposing criteria for loss 360n). In section 524, Congress 314). of mass and accuracy of subdivision for encouraged development of new drug split tablets.1 IV. Electronic Access and biological products for prevention As an outgrowth of these discussions Persons with access to the Internet and treatment of certain tropical and developments, FDA is providing may obtain the document at either diseases by offering additional recommendations for application http://www.fda.gov/Drugs/Guidance incentives for obtaining FDA approval content regarding the scientific basis for ComplianceRegulatoryInformation/ of such products. Under section 524, the functional scores on solid oral dosage Guidances/default.htm or http:// sponsor of an eligible human drug form products to ensure the quality of www.regulations.gov. application submitted after September both NDA and ANDA scored tablet 27, 2007, for a qualified tropical disease products. To accomplish this, the Dated: August 25, 2011. (as defined in section 524(a)(3)), shall Agency has developed consistent and Leslie Kux, receive a priority review voucher upon meaningful criteria by which scored Acting Assistant Commissioner for Policy. approval of the tropical disease product tablets can be evaluated and labeled. [FR Doc. 2011–22146 Filed 8–29–11; 8:45 am] application. The recipient of a priority The criteria are as follows: (1) Provide BILLING CODE 4160–01–P review voucher may either use the a harmonized approach to chemistry, voucher with a future submission to manufacturing, and controls reviews of FDA under section 505(b)(1) of the scored tablets; (2) ensure consistency in DEPARTMENT OF HEALTH AND FD&C Act (21 U.S.C. 355(b)(1)) or nomenclature (e.g., score versus bisect) HUMAN SERVICES section 351 of the Public Health Service and labeling; and (3) provide Food and Drug Administration Act (21 U.S.C. 262), or transfer information through product labeling or (including by sale) the voucher to other means to healthcare providers. [Docket No. FDA–2011–N–0594] another party that may then use it. A This draft guidance is being issued priority review is a review conducted consistent with FDA’s good guidance Fee for Using a Priority Review with a Prescription Drug User Fee Act practices regulation (21 CFR 10.115). Voucher in Fiscal Year 2012 (PDUFA) goal date of 6 months. The draft guidance, when finalized, will AGENCY: Food and Drug Administration, The applicant that uses a priority represent the Agency’s current thinking HHS. review voucher is entitled to a priority on tablet scoring: nomenclature, ACTION: Notice. review but must pay FDA a priority labeling, and data for evaluation. It does review user fee in addition to any other not create or confer any rights for or on SUMMARY: The Food and Drug fee required by PDUFA. FDA has any person and does not operate to bind Administration (FDA) is announcing the published a draft guidance on its Web FDA or the public. An alternative fee rates for using a tropical disease site about how this priority review approach may be used if such approach priority review voucher for fiscal year voucher program will operate (available satisfies the requirements of the (FY) 2012. The Federal Food, Drug, and at: http://www.fda.gov/downloads/ applicable statutes and regulations. Cosmetic Act (the FD&C Act), as Drugs/GuidanceCompliance II. Comments amended by the Food and Drug RegulatoryInformation/Guidances/ Administration Amendments Act of ucm080599.pdf). Interested persons may submit to the 2007 (FDAAA), authorizes FDA to This notice establishes the priority Division of Dockets Management (see determine and collect priority review review fee rate for FY 2012 of ADDRESSES) either electronic or written user fees for certain applications for $5,280,000 and outlines FDA’s process comments regarding this document. It is approval of drug or biological products for implementing the collection of the only necessary to send one set of when those applications use a priority priority review user fees. This rate is review voucher awarded by the effective on October 1, 2011, and will 1 Geoff Green et al., November-December 2009, 35(6), ‘‘Pharmacopeial Standards for the Secretary of Health and Human remain in effect through September 30, Subdivision Characteristics of Scored Tablets,’’ Services. These vouchers are awarded to 2012, for applications submitted with a Pharmacopeial Forum. the sponsors of certain tropical disease priority review voucher. The payment of

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this priority review user fee is required year.’’ However, we expect all such drug IND in FY 2010 was $362,102. The in addition to the payment of any other applications would contain clinical standard lifetime cost of a biologic IND fee that would normally apply to such data. The standard cost application review in FY 2010 was $791,916. an application under PDUFA before categories with clinical data that FDA Because there were 8 priority NDAs and FDA will consider the application does publish each year are: (1) New 5 priority BLAs received in FY 2010, the complete and acceptable for filing. drug applications (NDAs) for a new following formula below estimates the II. Priority Review User Fee for FY molecular entity (NME) with clinical average cost of the IND review phase of 2012 data, and (2) biologic license an application: applications (BLAs). Under section 524(c)(2) of the FD&C (8 NDA * $362,102) + (5 BLAs * The worksheets for standard costs for $791,916) = $6,856,396 Act, the amount of the priority review FY 2010, the latest year for which user fee is to be determined each FY standard cost data are available, show a This is the full cost of the IND review based on the average cost incurred by standard cost of $4,316,567 for an NDA associated with the 13 priority review FDA in the review of a human drug with clinical data and $6,081,461 for a applications received in FY 2010. application subject to priority review in BLA. Based on these standard costs, the Dividing $6,856,000 (rounded to the the previous FY. total cost to review the 33 applications nearest thousand dollars) by 13 (the A priority review is a review in these two categories in FY 2010 (9 total number of priority review conducted with a PDUFA goal date of 6 BLAs and 24 NDAs with clinical data) applications received in FY 2010), months. Normally, an application for a was $158,331,000, rounded to the yields an average IND review phase cost Center for Drug Evaluation and Research nearest thousand dollars. (Note: No of $527,000 (rounded to the nearest (CDER) product will qualify for a investigational new drug (IND) review thousand dollars) per priority review priority review if FDA determines that costs are included in this amount; they application. the product, if approved, would provide will be calculated separately and added Adding the cost of the NDA/BLA safe and effective therapy where no in the next paragraph.) Records acquired priority review calculated above, satisfactory alternative therapy exists or from CDER and CBER by the Office of $6,339,000, to the cost of the IND review would be a significant improvement Policy and Planning (OPP), Economics phase of $527,000, results in an compared to marketed products, Staff, indicate that a total of 13 of these estimated average cost for priority including non-drug products and/or applications (8 NDAs [excluding the review for an application received in FY therapies, in the treatment, diagnosis, or President’s Emergency Plan for Aids 2010 of $6,866,000. prevention of a disease. A Center for Relief NDAs] and 5 BLAs) received Biologics Evaluation and Research Section 524 of the FD&C Act specifies priority review, which would mean that (CBER) product will qualify for a that the fee amount should be based on the remaining 20 received standard priority review if FDA determines that the average cost incurred by the Agency reviews. Because a priority review the product, if approved, would be a for a priority review in the previous FY. compresses a review that ordinarily significant improvement in the safety or FDA is setting fees for FY 2012, and the takes 10 months into 6 months, OPP effectiveness of the treatment, diagnosis, previous FY is FY 2011. However, the estimates that a multiplier of 1.67 (10 or prevention of a serious or life- FY 2011 submission cohort has not been threatening disease. FDA has committed months divided by 6 months) should be closed out yet, and the cost data for FY to a goal to review and act on 90 percent applied to non-priority review costs in 2011 are not complete. The latest year of the applications that have been estimating the effort and cost of a for which FDA has data is FY 2010. granted priority review status no later priority review as compared to a Accordingly FDA will adjust the FY than 6 months after receipt. An standard review. This multiplier is 2010 cost figure above by the average application that does not receive a consistent with published research on amount by which FDA’s average salary priority designation will receive a this subject. In the article ‘‘Developing and benefit costs increased in the 5 standard review. Under the goals Drugs for Developing Countries,’’ years prior to FY 2011, to adjust the FY identified in the letters referenced in published in Health Affairs, Volume 25, 2010 amount for cost increases in FY section 101(c) of FDAAA, FDA commits Number 2, in 2006, the analysis by 2011. That figure, also published in the to a goal to review and act on 90 percent David B. Ridley, Henry G. Grabowski, Federal Register of August 1, 2011 (76 of standard applications within 10 and Jeffrey L. Moe supports a priority FR 45831), setting PDUFA fees for FY months of the date of receipt. A priority review multiplier in the range of 1.48 to 2012, is 3.72 percent. Increasing the FY review involves a more intensive level 2.35. The multiplier derived by FDA 2010 average priority review cost figure of effort and a higher level of resources falls well below the mid-point of this of $6,866,000 by 3.72 percent results in than a standard review. range. Using FY 2010 figures, the costs an estimated cost of $7,121,000 Section 524 of the FD&C Act specifies of a priority and standard review are (rounded to the nearest thousand that the fee amount should be based on estimated using the following formula: dollars). the average cost incurred by the Agency (13 a * 1.67) + (20 a) = $158,331,000 FDA will deduct from this amount the for a priority review in the previous FY. where ‘‘a’’ is the cost of a standard PDUFA fee that must also be paid (in Because FDA has never tracked the cost review and ‘‘a times 1.67’’ is the cost of addition to the priority review fee) of reviewing applications that get a priority review. Using this formula, when an NDA or BLA with clinical data priority review as a separate cost subset, the cost of a standard review for NMEs is submitted in FY 2012. That amount, FDA estimated this cost based on other is calculated to be $3,796,000 (rounded also published in the Federal Register data that the Agency has tracked and to the nearest thousand dollars) and the of August 1, 2011, is $1,841,500. The kept. FDA started by using data that the cost of a priority review for NMEs is difference, rounded to the nearest Agency estimates and publishes on its 1.67 times that amount, or $6,339,000 thousand dollars, is $5,280,000. This is Web site each year—standard costs for (rounded to the nearest thousand the priority review user fee amount for review. FDA does not publish a dollars). FY 2012 that must be submitted with a standard cost for ‘‘the review of a Next, the cost of the IND review phase priority review voucher in FY 2012, in human drug application subject to for these applications is calculated. The addition to any PDUFA fee that is priority review in the previous fiscal standard lifetime cost of reviewing a required for such an application.

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III. Priority Review Fee Schedule for office box number (P.O. Box 979107) MD 20993, 301–796–8660, e-mail: FY 2012 must be written on the check. The tax [email protected]. The fee rate for FY 2012 is set out in identification number of the Food and SUPPLEMENTARY INFORMATION: FDA table 1 of this document: Drug Administration is 53–0196965. publishes the generic name and/or trade Wire transfer payments may also be name of a drug on its Web site at http:// TABLE 1—PRIORITY REVIEW used. Please reference your unique user www.fda.gov/orphan after it designates fee ID number when completing your SCHEDULE FOR FY 2012 a drug as an orphan drug. It has come transfer. The originating financial to our attention that a small subset of Fee rate for institution may charge a wire transfer drugs that have received orphan Fee category FY 2012 fee. Please ask your financial institution designation were published on our about the fee and include it with your public database with non-informative Applications Submitted With a payment to ensure that your fee is fully code names. After careful consideration Priority Review Voucher in paid. The account information is as of this matter, we have concluded that Addition to the Normal follows: New York Federal Reserve PDUFA Fee ...... $5,280,000 the Orphan Drug Act mandates that Bank, U.S. Dept. of Treasury, TREAS FDA identify to the public products that NYC, 33 Liberty St., New York, NY have received orphan-drug designation. IV. Implementation of Priority Review 10045, Acct. No.: 75060099, Routing If a drug has no generic or trade name, Fee No.: 021030004, Swift: FRNYUS33, publishing a non-informative code name Under section 524(c)(4)(A) of the Beneficiary: FDA, 1350 Piccard Dr., for that drug does not meet the statutory FD&C Act, the priority review user fee Rockville, MD 20850. notice requirement because the public is due upon submission of the Dated: August 24, 2011. would not be able to identify the drug application for which the priority Leslie Kux, that has received orphan designation. review voucher is used. Section Acting Assistant Commissioner for Policy. In addition to issuing this notice, FDA 524(c)(4)(B) specifies that the has mailed letters to affected sponsors at [FR Doc. 2011–22062 Filed 8–29–11; 8:45 am] application will be considered their last known address and has posted incomplete if the priority review user BILLING CODE 4160–01–P notification on its Web site at http:// fee and all other applicable user fees are www.fda.gov/ForIndustry/Developing not paid in accordance with FDA DEPARTMENT OF HEALTH AND ProductsforRareDiseasesConditions/ payment procedures. FDA may not grant HUMAN SERVICES HowtoapplyforOrphanProduct a waiver, exemption, reduction, or Designation/ucm267378.htm. We refund of any fees due and payable Food and Drug Administration informed sponsors that, on our Web site, under this section of the FD&C Act, and we have replaced all non-informative FDA may not collect priority review [Docket No. FDA–2011–N–0607] code names with descriptive identifiers. voucher fees prior to a relevant We asked that these sponsors notify us appropriation for fees for that FY. FDA’s Public Database of Products within 20 days of the date of the letter Beginning with FDA’s appropriation for With Orphan-Drug Designation: if they believe that their product’s FY 2009, the annual appropriation Replacing Non-Informative Code current identifier did not accurately language states specifically that Names With Descriptive Identifiers identify their product to the public. ‘‘priority review user fees authorized by Despite reasonable efforts, we were 21 U.S.C. 360n (section 524 of the FD&C AGENCY: Food and Drug Administration, unable to notify a small proportion of Act) may be credited to this account, to HHS. affected sponsors. It appears that some remain available until expended.’’ (Pub. ACTION: Notice. sponsors may have gone out of business L. 111–8, Section 5, Division A, Title or may have transferred ownership of, VI). SUMMARY: The Food and Drug or beneficial interest in, orphan-drug The priority review fee established in Administration (FDA), Office of Orphan designation without informing FDA. the new fee schedule must be paid for Products Development, is announcing (We remind sponsors of their any application that is received after that it has replaced non-informative obligations to notify us of any change in September 30, 2011, and submitted with code names with descriptive identifiers ownership of orphan-drug designation, a priority review voucher. This fee must on its public database of products that under 21 CFR 316.27, and to submit be paid in addition to any other fee due have received orphan-drug designation. brief progress reports to us on an annual under PDUFA. Payment must be made The Orphan Drug Act mandates that basis, under 21 CFR 316.30.) in U.S. currency by check, bank draft, or FDA provide notice to the public Through this document, FDA seeks to U.S. postal money order payable to the respecting the designation of a drug as inform sponsors whom the Agency has order of the Food and Drug an orphan-drug. FDA typically provides not otherwise been able to notify that, Administration. The user fee public notice by publishing a drug’s under the Orphan Drug Act’s notice identification (ID) number should be generic or trade name upon orphan requirements, all non-informative codes included on the check, followed by the designation. Where a designated drug in our public orphan drug designations words ‘‘Priority Review.’’ Payments can does not have a generic or trade name, database have been replaced with be mailed to: Food and Drug publishing a non-informative code name corresponding informative identifiers. Administration, P.O. Box 979107, St. does not meet the statutory disclosure If you believe this notice applies to Louis, MO 63197–9000. requirement because the public would you, please visit our Web site at If checks are sent by a courier that not be able to identify the drug that has http://www.fda.gov/orphan. Under requests a street address, the courier can received orphan designation. ‘‘Resources for You,’’ click on the deliver the checks to: U.S. Bank, FOR FURTHER INFORMATION CONTACT: ‘‘Search for Orphan Drug Designations Attention: Government Lockbox 979107, Jeffrey Fritsch, Office of Orphan and Approvals’’ and enter your product. 1005 Convention Plaza, St. Louis, MO Products Development, Food and Drug If you believe that your product’s 63101. (Note: This U.S. Bank address is Administration, 10903 New Hampshire current identifier does not accurately for courier delivery only.) The FDA post Ave., Bldg. 32, rm. 5276, Silver Spring, identify your product to the public,

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please promptly contact Jeffrey Fritsch FOR FURTHER INFORMATION CONTACT: data collection instrument up for (see FOR FURTHER INFORMATION CONTACT). Ronald Munia, Director, Division of comment. Dated: August 25, 2011. Community Resettlement, Office of Approval of this information Refugee Resettlement, 901 D Street, collection will allow SAMHSA to Leslie Kux, SW., Washington, DC 20047. Telephone: continue to meet Government Acting Assistant Commissioner for Policy. 202–401–4559. E-mail: Performance and Results Act of 1993 [FR Doc. 2011–22144 Filed 8–29–11; 8:45 am] [email protected]. (GPRA) reporting requirements that BILLING CODE 4160–01–P Dated: August 24, 2011. quantify the effects and Eskinder Negash, accomplishments of its discretionary grant programs which are consistent Director, Office of Refugee Resettlement. DEPARTMENT OF HEALTH AND with OMB guidance. HUMAN SERVICES [FR Doc. 2011–22196 Filed 8–29–11; 8:45 am] CSAT has increased the number of BILLING CODE 4120–27–P questions in the instrument to satisfy Office of Refugee Resettlement reporting needs. The following paragraphs present a description of the Award of an Urgent Single-Source DEPARTMENT OF HEALTH AND changes made to the information Grant to Survivors of Torture HUMAN SERVICES International (SOTI) in San Diego, CA; collection. These questions will be Correction Substance Abuse and Mental Health contained in new sections in the GPRA Services Administration tool. Section H. Violence and Trauma— AGENCY: Office of Refugee Resettlement, CSAT proposes to add the following 6 ACF, HHS. Agency Information Collection items in a new section entitled ACTION: Notice; correction. Activities: Submission for OMB ‘‘Violence and Trauma’’. Review; Comment Request 1. Have you ever experienced violence or CFDA Number: 93.604. trauma in any setting (including community Periodically, the Substance Abuse and SUMMARY: The Office of Refugee or school violence; domestic violence; Mental Health Services Administration physical, psychological, or sexual Resettlement, ACF, HHS published a (SAMHSA) will publish a summary of maltreatment/assault within or outside of the document in the Federal Register of information collection requests under family; natural disaster; terrorism; neglect; or August 16, 2011 (76 FR 50744), OMB review, in compliance with the traumatic grief)? No, (skip to next section) concerning the issuance of an urgent Paperwork Reduction Act (44 U.S.C. 2. Did any of these experiences feel so single-source grant to Survivors of Chapter 35). To request a copy of these frightening, horrible, or upsetting that in the Torture, International (SOTI), San past and/or the present that you: documents, call the SAMHSA Reports 2a. Have had nightmares about it or Diego, CA. The document contained Clearance Officer on (240) 276–1243. incorrect information in citing the thought about it when you did not want to? 2b. Tried hard not to think about it or went statutory authority for making this Project: Services Accountability Improvement System—(OMB No. 0930– out of your way to avoid situations that award. remind you of it? Correction: In the Federal Register of 0208)—Revision 2c. Were constantly on guard, watchful, or August 16, 2011 (76 FR 50744), ORR This revised instrument will allow easily startled? omitted the primary authority for SAMHSA to collect information on two 2d. Felt numb and detached from others, issuing this award. The notice should new strategic initiatives—Trauma and activities, or your surroundings? have included the following: Awards Violence and Military Families. The new 3. In the past 30 days, how often have you been hit, kicked, slapped, or otherwise announced in this notice are authorized items will be added to the Services physically hurt? by the Torture Victims Relief Act Accountability Improvement System • (TVRA) of 1998,’’ Public Law 105–320 (SAIS), which is a real-time, Experiences with Violence and (22 U.S.C. 2152 note), reauthorized by performance management system that Trauma—One of SAMHSA’s 10 Public Law 109–165 in January 2006. captures information on the substance Strategic Initiatives is trauma and Section 5 (a) of the TVRA of 1998 abuse treatment and mental health violence. In order to capture this provides for ‘‘Assistance for Treatment services delivered in the United States. information, CSAT is adding six new of Torture Victims. — The Secretary of A wide range of client and program questions to be asked of respondents. Health and Human Services may information is captured through SAIS This information will help in provide grants to programs in the for approximately 600 grantees. SAMHSA’s overall goal of reducing the United States to cover the cost of the Substance abuse treatment facilities behavioral health impacts of violence following services: (1) Services for the submit their data on a monthly and even and trauma by encouraging substance rehabilitation of victims of torture, a weekly basis to ensure that SAIS is an abuse treatment programs to focus on including treatment of the physical and accurate, up-to-date reflection on the trauma-informed services. psychological effects of torture. (2) scope of services delivered and Section L. Military Family and Social and legal services for victims of characteristics of the treatment Deployment—CSAT proposes to add the torture. (3) Research and training for population. Over 30 reports on grantee following 6 new items in a new section health care providers outside of performance are readily available on the entitled ‘‘Military Family and treatment centers, or programs for the SAIS website. The reports inform staff Deployment’’. purpose of enabling such providers to on the grantees’ ability to serve their 1. Have you ever served in the Armed provide the services described in target populations and meet their client Forces, in the Reserves, or the National paragraph (1).’’ And by Section 412 and budget targets. SAIS data allow Guard [select all that apply]? No, (Skip to #2) (c)(1)(A) of the Immigration and grantees information that can guide 1b. Are you currently on active duty in the Armed Forces, in the Reserves, or the Nationality Act (INA) (8 U.S.C. modifications to their service array. National Guard [select all that apply]? 1522(c)(1)(A), as amended, and the With the addition of new questions 1c. Have you ever been deployed to a Refugee Assistance Extension Act of regarding military families, experiences combat zone? 1986, Public Law 99–605, Nov 6, 1986, with trauma, and experiences with 2. Is anyone in your family or someone 100 Stat. 3449. violence GFA, there is a proposed new close to you on active duty in the Armed

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Forces, in the Reserves, or the National including PTSD, Depression, or suicidal CSAT and the grantees to monitor these Guard, or separated or retired from Armed thoughts Æ clients and explore whether special Forces, Reserves, or the National Guard? No, Died or was killed services or programs are needed to treat (Skip to next section) • Veteran Family Status and Areas of them for substance abuse and other 3. What is the relationship of that person Deployment—SAMHSA is also related issues. Identification of veteran (Service Member) to you? interested in collecting data on active status and other military family issues 3b. Has the Service Member experienced duty and veteran military members. will also allow coordination between any of the following (check all that apply): Collection of these data will allow SAMHSA and other Federal agencies in Æ Deployed in support of Combat CSAT to identify the number of veterans Operations (e.g. Iraq or Afghanistan) order to provide a full range of services served, deployment status and location, to veterans. CSAT will also be able to Æ Was physically injured during Combat and family veteran status in conjunction monitor their outcomes and activities Operations with the types of services they may Æ per the NOMS. The total annual burden Developed combat stress symptoms/ receive. Identifying a client’s veteran difficulties adjusting following deployment, status and deployment area allows estimate is shown below:

ESTIMATES OF ANNUALIZED HOUR BURDEN 1—CSAT GPRA CLIENT OUTCOME MEASURES FOR DISCRETIONARY PROGRAMS

Responses Center/form/respondent type Number of per Total Hours per response Total hour Added burden 2 respondents respondent responses burden proportion

Clients: Adolescents ...... 3,900 4 15,600 .5 ...... 7,800 .34 Adults: General (non ATR or 28,000 3 84,000 .5...... 42,000 .34 SBIRT). ATR ...... 53,333 3 159,999 .5 ...... 80,000 .34 SBIRT 4 Screening Only 150,618 1 150,618 .13 ...... 19,580 0 SBIRT Brief Intervention 27,679 3 83,037 .20 ...... 16,607 0 SBIRT Brief Tx & Refer 9,200 3 27,600 .5...... 13,800 .34 to Tx.

Client Subtotal ...... 272,730 ...... 520,854 ...... 179,787 ......

Data Extract 5 and Upload: Adolescent Records ...... 44 grants 44 × 4 176 .18...... 32 ...... Adult Records: General (non ATR or 528 grants 70 × 3 210 .18...... 38 ...... SBIRT). ATR Data Extract ...... 53,333 3 160,000 .16 ...... 25,600 ...... ATR Upload 6 ...... 24 grants 3 160,000 1 hr. per 6,000 records ...... 27 ...... SBIRT Screening Only 9 grants 21,517 × 1 21,517 .07...... 1,506 ...... Data Extract. SBIRT Brief Intervention 9 grants 3,954 × 3 11,862 .10...... 1,186 ...... Data Extract. SBIRT Brief Tx&Refer to 9 grants 1,314 × 3 3,942 .18...... 710 ...... Tx Data Extract. SBIRT Upload 7 ...... 7 grants ...... 171,639 1 hr. per 6,000 records ...... 29 ......

Data Extract and 53,856 ...... 529,382 ...... 29,134 ...... Upload Subtotal.

Total ...... 326,586 ...... 1,050,236 ...... 208,921 ...... NOTES: 1 This table represents the maximum additional burden if adult respondents, for the discretionary services programs including ATR, provide three sets of responses/data and if CSAT adolescent respondents, provide four sets of responses/data. 2 Added burden proportion is an adjustment reflecting customary and usual business practices programs engage in (e.g., they already collect the data items). 3 Estimate based on 2010 hourly wave of $19.97 for U.S. workforce eligible from the Bureau of Labor Statistics. 4 Screening, Brief Intervention, Treatment and Referral (SBIRT) grant program: * 27,679 Brief Intervention (BI) respondents complete sections A & B of the GPRA instrument, all of these items are asked during a customary and usual intake process resulting in zero burden; and * 9,200 Brief Treatment (BT) & Referral to Treatment (RT) respondents complete all sections of the GPRA instrument. 5 Data Extract by Grants: Grant burden for capturing customary and usual data. 6 Upload: all 24 ATR grants upload data. 7 Upload: 7 of the 9 SBIRT grants upload data; the other 2 grants conduct direct data entry.

Based on current funding and 2012 include: the Access to Recovery 2 of Juvenile Justice and Delinquency planned fiscal year 2010 notice of (ATR2), ATR3, Addictions Treatment Prevention—Brief Intervention and funding announcements (NOFA), the for Homeless; Adult Criminal Justice Referral to Treatment (OJJDP–BIRT); CSAT programs that will use these Treatment; Assertive Adolescent Family OJJDP-Juvenile Drug Court (OJJDP–JDC); measures in fiscal years 2010 through Treatment; HIV/AIDS Outreach; Office Offender Re-entry Program; Pregnant

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and Postpartum Women; Recovery information collection requests under 1b. Are you currently on active duty Community Services Program— OMB review, in compliance with the in the Armed Forces, in the Reserves, or Services; Recovery Oriented Systems of Paperwork Reduction Act (44 U.S.C. the National Guard [select all that Care; Screening and Brief Intervention Chapter 35). To request a copy of these apply]? and Referral to Treatment (SBIRT), documents, call the SAMHSA Reports 1c. Have you ever been deployed to a Targeted Capacity Expansion (TCE); Clearance Officer on (240) 276–1243. combat zone? TCE/HIV; Treatment Drug Court; and 2. Is anyone in your family or the Youth Offender Reentry Program. Project: National Outcome Measures someone close to you on active duty in SAMHSA uses the performance (NOMs) for Substance Abuse the Armed Forces, in the Reserves, or measures to report on the performance Prevention—(OMB No. 0930–0230)— the National Guard, or separated or of its discretionary services grant Revision retired from Armed Forces, Reserves, or programs. The performance measures This revised instrument will allow the National Guard? No, (Skip to next information is used by individuals at SAMHSA to collect information on a section) three different levels: the SAMHSA new strategic initiative—Military 3. What is the relationship of that administrator and staff, the Center Families. The new items will be added person (Service Member) to you? administrators and government project to the Center for Substance Abuse 3b. Has the Service Member officers, and grantees Prevention’s (CSAP) National Outcome experienced any of the following (check SAMHSA and its Centers will use the Measures for Substance Abuse all that apply): Æ data for annual reporting required by Prevention (NOMs). Data are collected Deployed in support of Combat GPRA and for NOMs comparing from SAMHSA/CSAP grants and Operations (e.g. Iraq or Afghanistan) Æ baseline with discharge and follow-up contracts where community and Was physically Injured during data. GPRA requires that SAMHSA’s combat Operations participant outcomes are assessed. The Æ report for each fiscal year include actual analysis of these data helps determine Developed combat stress results of performance monitoring for whether progress is being made in symptoms/difficulties adjusting the three preceding fiscal years. The achieving SAMHSA/CSAP’s mission. following deployment, including PTSD, additional information collected Depression, or suicidal thoughts The primary purpose of this system is Æ through this process will allow to promote the use among SAMHSA/ Died or was killed SAMHSA to report on the results of CSAP grantees and contractors of Youth these performance outcomes as well as common National Outcome Measures 1. Is anyone in your family or be consistent with the specific recommended by SAMHSA/CSAP with someone close to you on active duty in performance domains that SAMHSA is significant input from panels of experts the Armed Forces, in the Reserves, or implementing as the NOMs, to assess and state representatives. the accountability and performance of the National Guard, or separated or With the addition of new questions retired from Armed Forces, Reserves, or its discretionary and formula grant regarding military families, there is a programs. the National Guard? No, (Skip to next proposed new data collection section) Written comments and instrument up for comment. Approval recommendations concerning the 2. What is the relationship of that of this information collection will allow person (Service Member) to you? proposed information collection should SAMHSA to continue to meet be sent by September 29, 2011 to: 2b. Has the Service Member Government Performance and Results experienced any of the following (check SAMHSA Desk Officer, Human Act of 1993 (GPRA) reporting Resources and Housing Branch, Office all that apply): requirements that quantify the effects Æ Deployed in support of Combat of Management and Budget, New and accomplishments of its Executive Office Building, Room 10235, Operations (e.g. Iraq or Afghanistan) discretionary grant programs which are Æ Was physically Injured during Washington, DC 20503; due to potential consistent with OMB guidance, and delays in OMB’s receipt and processing combat Operations address goals and objectives outlined in Æ Developed combat stress of mail sent through the U.S. Postal the Office of National Drug Control Service, respondents are encouraged to symptoms/difficulties adjusting Policy’s Performance Measures of following deployment, including PTSD, submit comments by fax to: 202–395– Effectiveness. 7285. Depression, or suicidal thoughts CSAP has increased the number of o Died or was killed Rose Shannon, questions in the instrument to satisfy • Veteran Family Status and Areas of Director, Division of Executive reporting needs. The following Deployment—SAMHSA is interested in Correspondence. paragraphs present a description of the collecting data on active duty and [FR Doc. 2011–22095 Filed 8–29–11; 8:45 am] changes made to the information veteran military members. Collection of BILLING CODE 4162–20–P collection. These questions will be these data will allow CSAP to identify contained in new sections in the the number of veterans served, Services tool. deployment status and location, and DEPARTMENT OF HEALTH AND Military Family and Deployment— family veteran status in conjunction HUMAN SERVICES CSAP proposes to add the following 6 with the types of services they may new items in the adult tool and 3 new receive. Identifying a participant’s Substance Abuse and Mental Health items in the youth tool in a new section veteran status and deployment area Services Administration entitled ‘‘Military Family and allows CSAP and the grantees to Agency Information Collection Deployment.’’ monitor these participants and explore whether special services or programs are Activities: Submission for OMB Adult Review; Comment Request needed to treat them for substance abuse 1. Have you ever served in the Armed and other related issues. Identification Periodically, the Substance Abuse and Forces, in the Reserves, or the National of veteran status and other military Mental Health Services Administration Guard [select all that apply]? No, (Skip family issues will also allow (SAMHSA) will publish a summary of to #2) coordination between SAMHSA and

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other Federal agencies in order to veterans. CSAP will also be able to per the NOMS. The total annual burden provide a full range of services to monitor their outcomes and activities estimate is shown below:

Responses SAMHSA/CSAP program Number of Number of per Hours/ Total hours grantees respondents respondent response

FY 11

Science/Services: Fetal Alcohol ...... 23 4,800 3 0.4 5,760 Capacity: HIV/Targeted Capacity ...... 122 31,964 3 0.83 79,590 SPF SIG ...... 51 ...... 0 ...... SPF SIG/Community Level * ...... 765 1 0.83 635 SPF SIG/Program Level * ...... 19,125 3 0.4 22,950 PFS ...... 5 ...... 0 ...... PFS/Community Level * ...... 75 1 0.83 62 PFS/Program Level * ...... 1,875 3 0.4 2,250 PPC ...... N/A N/A N/A N/A N/A

FY 12

Science/Services: Fetal Alcohol ...... 23 4,800 3 0.4 5,760 Capacity: HIV/Targeted Capacity ...... 122 31,964 3 0.83 79,590 SPF SIG ...... 51 ...... 0 ...... SPF SIG/Community Level * ...... 765 1 0.83 635 SPF SIG/Program Level * ...... 19,125 3 0.4 22,950 PFS ...... 10 ...... 0 ...... PFS/Community Level * ...... 150 1 0.83 125 PFS/Program Level * ...... 3,750 3 0.4 4,500 PPC ...... 50 25,000 1 0.83 20,750

FY 13

Science/Services: Fetal Alcohol ...... 23 4,800 3 0.4 5,760 Capacity: HIV/Targeted Capacity ...... 122 31,964 3 0.83 79,590 SPF SIG ...... 35 ...... 0 ...... SPF SIG/Community Level * ...... 525 1 0.83 436 SPF SIG/Program Level * ...... 13,125 3 0.4 15,750 PFS ...... 15 ...... 0 ...... PFS/Community Level * ...... 225 1 0.83 187 PFS/Program Level * ...... 5,625 3 0.4 6,750 PPC ...... 50 25,000 1 0.83 20,750 Annual Average ...... 11,271 ...... 18,739 * The Strategic Prevention Framework State Incentive Grant (SPF SIG) and Partnerships for Success (PFS) have a three level evaluation: The Grantee, Community and Program Level. The Grantee level data will be pre-populated by SAMHSA. The use of the Community Level instrument is optional as they relate to targeted interventions implemented during the reporting period. At the program level, items will be selected in line with direct services implemented.

Written comments and submit comments by fax to: 202–395– DEPARTMENT OF HEALTH AND recommendations concerning the 7285. HUMAN SERVICES proposed information collection should Rose Shannon, be sent by September 29, 2011 to: Substance Abuse and Mental Health SAMHSA Desk Officer, Human Director, Division of Executive Services Administration Resources and Housing Branch, Office Correspondence. Agency Information Collection of Management and Budget, New [FR Doc. 2011–22097 Filed 8–29–11; 8:45 am] Activities: Submission for OMB Executive Office Building, Room 10235, BILLING CODE 4162–20–P Review; Comment Request Washington, DC 20503; due to potential delays in OMB’s receipt and processing Periodically, the Substance Abuse and of mail sent through the U.S. Postal Mental Health Services Administration Service, respondents are encouraged to (SAMHSA) will publish a summary of information collection requests under OMB review, in compliance with the Paperwork Reduction Act (44 U.S.C. Chapter 35). To request a copy of these documents, call the SAMHSA Reports Clearance Officer on (240) 276–1243.

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Project: Transformation Accountability 1. Have you ever experienced violence or 2. Is anyone in your family or someone Reporting System—(OMB No. 0930– trauma in any setting (including community close to you on active duty in the Armed 0285)—Revision or school violence; domestic violence; Forces, in the Reserves, or the National physical, psychological, or sexual Guard, or separated or retired from Armed This revised instrument will allow maltreatment/assault within or outside of the Forces, Reserves, or the National Guard? No, SAMHSA to collect information on two family; natural disaster; terrorism; neglect; or (Skip to next section) new strategic initiatives—Trauma and traumatic grief)? No, (skip to next section) 3. What is the relationship of that person 2. Did any of these experiences feel so Violence and Military Families. The new (Service Member) to you? frightening, horrible, or upsetting that in the 3b. Has the Service Member experienced items will be added to the past and/or the present that you: Transformation Accountability (TRAC) any of the following (check all that apply): 2a. Have had nightmares about it or Æ Deployed in support of Combat Reporting System is a real-time, thought about it when you did not want to? Operations (e.g. Iraq or Afghanistan) 2b. Tried hard not to think about it or went performance management system that Æ Was physically Injured during combat out of your way to avoid situations that captures information on mental health Operations remind you of it? services delivered in the United States. Æ Developed combat stress symptoms/ 2c. Were constantly on guard, watchful, or A wide range of client and program easily startled? difficulties adjusting following deployment, information is captured through TRAC 2d. Felt numb and detached from others, including PTSD, Depression, or suicidal for approximately 400 grantees. thoughts activities, or your surroundings? Æ With the addition of new questions 3. In the past 30 days, how often have you Died or was killed been hit, kicked, slapped, or otherwise regarding military families, experiences • Veteran Family Status and Areas of with trauma, and experiences with physically hurt? • Deployment—SAMHSA is also violence GFA, there is a proposed new Experiences With Violence and interested in collecting data on active data collection instrument up for Trauma—One of SAMHSA’s 10 duty and veteran military members. comment. Approval of this information Strategic Initiatives is trauma and Collection of these data will allow collection will allow SAMHSA to violence. In order to capture this CMHS to identify the number of continue to meet Government information, CMHS is adding six new veterans served, deployment status and Performance and Results Act of 1993 questions to be asked of respondents. location, and family veteran status in (GPRA) reporting requirements that This information will help in conjunction with the types of services quantify the effects and SAMHSA’s overall goal of reducing the they may receive. Identifying a client’s accomplishments of its discretionary behavioral health impacts of violence veteran status and deployment area grant programs which are consistent and trauma by encouraging substance allows CMHS and the grantees to with OMB guidance. abuse treatment programs to focus on monitor these clients and explore CMHS has increased the number of trauma-informed services. whether special services or programs are questions in the instrument to satisfy Military Family and Deployment— needed to treat them for substance abuse reporting needs. The following CMHS proposes to add the following 6 and other related issues. Identification paragraphs present a description of the new items in a new section entitled of veteran status and other military changes made to the information ‘‘Military Family and Deployment’’. family issues will also allow collection. These questions will be 1. Have you ever served in the Armed coordination between SAMHSA and contained in new sections in the Forces, in the Reserves, or the National other Federal agencies in order to Services tool. Guard [select all that apply]? No, (Skip to #2) provide a full range of services to 1b. Are you currently on active duty in the Violence and Trauma—CMHS Armed Forces, in the Reserves, or the veterans. CMHS will also be able to proposes to add the following 6 items in National Guard [select all that apply]? monitor their outcomes and activities a new section entitled ‘‘Violence and 1c. Have you ever been deployed to a per the NOMS. The total annual burden Trauma’’. combat zone? estimate is shown below:

ESTIMATES OF ANNUALIZED HOUR BURDEN—CMHS CLIENT OUTCOME MEASURES FOR DISCRETIONARY PROGRAMS

Responses Type of response Number of per Total Hours per Total hour Hourly wage Total hour cost respondents respondent responses response burden cost

Client-level baseline interview ...... 15,681 1 15,681 0 .48 7,527 1 $15 $112,905 Client-level 6-month reassessment inter- view ...... 10,646 1 10,646 0 .367 3,907 15 58,605 Client-level discharge interview 2 ...... 4,508 1 4,508 0.367 1,655 15 24,825 Client-level baseline chart abstraction ..... 2,352 1 2,352 0 .1 235 15 3,525 Client-level reassess- ment chart abstrac- tion 3 ...... 9,017 1 9,017 0 .1 902 15 13,530

Client-level Subtotal 4 15,681 ...... 15,681 ...... 14,226 15 213,390

Infrastructure develop- ment, prevention, and mental health promotion quarterly record abstraction ... 942 4 3,768 4 15,072 5 35 527,520

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ESTIMATES OF ANNUALIZED HOUR BURDEN—CMHS CLIENT OUTCOME MEASURES FOR DISCRETIONARY PROGRAMS— Continued

Responses Type of response Number of per Total Hours per Total hour Hourly wage Total hour cost respondents respondent responses response burden cost

Total ...... 16,623 ...... 29,298 ...... 740,910 1 Based on minimum wage. 2 Based on an estimate that it will be possible to conduct discharge interviews on 40 percent of those who leave the program. 3 Chart abstraction will be conducted on 100 percent of those discharged. 4 This is the maximum additional burden if all consumers complete the baseline and periodic reassessment interviews. 5 To be completed by grantee Project Directors, hence the higher hourly wage.

Written comments and records has been updated to include Emergency Family Registry and Locator recommendations concerning the Law Enforcement Officials in categories (NEFRLS) System of Records,’’ 74 FR proposed information collection should of records, individuals, routine uses, 48767, September 29, 2009. be sent by September 29, 2011 to: and record source categories. This The DHS/FEMA NEFRLS System of SAMHSA Desk Officer, Human updated system will be included in the Records collects information from Law Resources and Housing Branch, Office Department of Homeland Security’s Enforcement Officials (LEOs) for the of Management and Budget, New inventory of record systems. purpose of responding to a Missing Executive Office Building, Room 10235, DATES: Submit comments on or before Persons Report. The information Washington, DC 20503; due to potential September 29, 2011. This new system collected from LEOs is to facilitate delays in OMB’s receipt and processing will be effective September 29, 2011. identity verification and their status as of mail sent through the U.S. Postal ADDRESSES: You may submit comments, a member of law enforcement. Service, respondents are encouraged to identified by docket number DHS– During Hurricane Katrina, displaced submit comments by fax to: 202–395– 2011–0045 by one of the following individuals experienced numerous 7285. methods: difficulties in reuniting with family • Rose Shannon, Federal e-Rulemaking Portal: members after the disaster. As a result, http://www.regulations.gov. Follow the Director, Division of Executive Congress mandated in Section 689c of Correspondence. instructions for submitting comments. the Post-Katrina Emergency • Fax: 703–483–2999. Management Reform Act (PKEMRA) of [FR Doc. 2011–22096 Filed 8–29–11; 8:45 am] • Mail: Mary Ellen Callahan, Chief 2006, Public Law 109–295, that FEMA BILLING CODE 4162–20–P Privacy Officer, Privacy Office, establish NEFRLS. FEMA has the Department of Homeland Security, discretionary authority to activate Washington, DC 20528. NEFRLS to help reunify families • DEPARTMENT OF HOMELAND Instructions: All submissions separated after an emergency or disaster SECURITY received must include the agency name declared by the President as defined in and docket number for this rulemaking. Office of the Secretary the Robert T. Stafford Disaster Relief All comments received will be posted and Emergency Assistance Act, [Docket No. DHS–2011–0045] without change to http:// 42 U.S.C. 5121–5207. www.regulations.gov, including any The collection of a LEO’s indentifying Privacy Act of 1974; Department of personal information provided. information increased the amount of Homeland Security/Federal Emergency • Docket: For access to the docket to identifying information collected and Management Agency—001 National read background documents or maintained by the DHS/FEMA–001 Emergency Family Registry and comments received go to http:// NEFRLS System of Records. Information Locator System of Records www.regulations.gov. collected is stored on FEMA secured AGENCY: Privacy Office, DHS. FOR FURTHER INFORMATION CONTACT: For servers, and/or stored in locked cabinets general questions please contact: Dr. ACTION: Notice of Privacy Act system of with secured facility access controls. records. Lesia Banks, (202–212–4491), Acting Previously, the DHS/FEMA–001 Privacy Officer, Federal Emergency NEFRLS System of Records only SUMMARY: In accordance with the Management Agency, 500 C Street, NW., allowed two groups of individuals Privacy Act of 1974, the Department of Washington, DC 20475. For privacy limited access. The groups were: Homeland Security proposes to update issues please contact: Mary Ellen (1) Registrants: displaced individuals and reissue a current Department of Callahan (703–235–0780), Chief Privacy registered in the system; and Homeland Security system of records Officer, Privacy Office, Department of (2) searchers: individuals who are titled, ‘‘Department of Homeland Homeland Security, Washington, DC searching for family or household Security/Federal Emergency 20528. members who registered in the system. Management Agency—001 National SUPPLEMENTARY INFORMATION: The DHS/FEMA–001 NEFRLS System of Emergency Family Registry and Locator Records now allows FEMA NEFRLS System of Records.’’ This system of I. Background Administrators to have limited access to records allows the Department of In accordance with the Privacy Act of records for the purpose of sharing Homeland Security/Federal Emergency 1974, 5 U.S.C. 552a, the Department of registrants’ information with LEOs Management Agency to collect and Homeland Security (DHS) Federal pursuant to an official missing persons maintain records on adults displaced Emergency Management Agency report. This increases the likelihood of from their homes or pre-disaster (FEMA) proposes to update and reissue reunifying family and friends displaced location after a Presidentially-declared a current DHS/FEMA system of records by a Presidentially-declared emergency emergency or disaster. This system of titled, ‘‘DHS/FEMA–001 National or disaster.

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The following categories are being travelling with the registrant or who • Phone; updated: Categories of individuals is lived in the pre-disaster residence • Alternate Phone; updated to clarify and specifically immediately preceding the disaster; and • E-mail; include LEOs; Categories of Records is searchers who are searching for missing • Date of Birth; updated to include LEO indentifying family or household members. • Identity Authentication Approval or information (such as Badge Number) Searchers are permitted to view Nonapproval (the fact of the and LEO verification indicators; Routine personal information and/or messages of authentication is maintained, but the Uses is updated to clearly identify certain registrant(s) upon designation by answers to the questions provided to the sharing with Federal, state, local, tribal, the registrant(s). third party organization are not territorial, international, or foreign Federal, state, local, tribal, territorial, maintained by DHS/FEMA); and LEOs; and Records Source Categories is international, or foreign Law • System Specific Username and updated to include LEOs as a source. Enforcement Officials (LEOs) that are Password. This updated system will be included searching for missing persons that may Information about a LEO collected by in DHS’s inventory of record systems. have been displaced by a Presidentially- a FEMA NEFRLS Administrator for declared disaster or emergency pursuant verification and status: II. Privacy Act to an Official Missing Persons Report. • Law Enforcement Official’s Title; The Privacy Act embodies fair • First Name; CATEGORIES OF RECORDS IN THE SYSTEM: information practice principles in a • Last Name; statutory framework governing the Information about the individual • Gender; means by which the U.S. Government registering in NEFRLS as a registrant • Badge number/Law Enforcement collects, maintains, uses, and consists of: License ID Number; • disseminates individuals’ records. The Authenticated Individual’s Full • Agency Name; Privacy Act applies to information that Name; • City; is maintained in a ‘‘system of records.’’ • Date of Birth; • • County/Parish; A ‘‘system of records’’ is a group of any Gender; • State; records under the control of an agency • Current Phone; • • Zip Code; for which information is retrieved by Alternate Phone; • Contact Phone; the name of an individual or by some • Current Address; • • Contact E-mail; identifying number, symbol, or other Pre-Disaster Address; • Supervisor Name; • Name and Type of Current identifying particular assigned to the • Supervisor Contact Number; Location; (i.e. shelter, hotel, or family/ individual. In the Privacy Act, an • Supervisor Contact E-mail; friend’s home); individual is defined to encompass U.S. • Agency City; • Traveling with Pets (Yes or No); citizens and lawful permanent • Agency County/Parish; • Identity Authentication Approval or residents. As a matter of policy, DHS • Agency State; and Nonapproval (the fact of the extends administrative Privacy Act • Verification Data. The verification authentication is maintained, but the protections to all individuals where process below indicates that there is a answers to the questions provided to the systems of records maintain information confirmed box to be checked for third party organization are not on U.S. citizens, lawful permanent successful verification. residents, and visitors. maintained by DHS/FEMA); • Below is the description of the DHS/ System Specific Username and AUTHORITY FOR MAINTENANCE OF THE SYSTEM: FEMA–001 NEFRLS System of Records. Password; and • Section 689c of the Post-Katrina In accordance with 5 U.S.C. 552a(r), Personal Message (may consist of Emergency Management Reform Act of DHS has provided a report of this up to 300 characters intended for 2006, Public Law 109–295 and the system of records to the Office of designated family or household Robert T. Stafford Disaster Relief and Management and Budget and to members to read). Emergency Assistance Act, as amended, Congress. Information about the family/ 42 U.S.C. 5121–5207. household members traveling with the SYSTEM OF RECORDS registrant in NEFRLS consists of: PURPOSE(S): DHS/FEMA–001 • Family/Household Members’ Full The purpose of this system is to Name; reunify families and household SYSTEM NAME: • Gender; members following a Presidentially- DHS/FEMA–001 National Emergency • Current Phone; declared disaster or emergency. To • Family Registry and Locator System Alternate Phone; families using NEFRLS, the registrant, • (NEFRLS) System of Records. Current Address; and searcher must acknowledge that the • Pre-Disaster address; SECURITY CLASSIFICATION: information in NEFRLS may be • Name and type of current location; Unclassified. disclosed to searchers upon request, to (i.e., shelter, hotel, or family/friend’s Federal, state, local, tribal, territorial, SYSTEM LOCATION: home); international, or foreign agencies • Traveling with Pets (Yes or No); Records are maintained at FEMA • including LEO as well as voluntary Headquarters in Washington, DC and Personal Message: (may consist of agencies. field offices. up to 300 characters for listed, designated family, or household ROUTINE USES OF RECORDS MAINTAINED IN THE CATEGORIES OF INDIVIDUALS COVERED BY THE members to read.) SYSTEM, INCLUDING CATEGORIES OF USERS AND SYSTEM: Information about the individual THE PURPOSES OF SUCH USES: Registrants (adult individual(s)) who searching NEFRLS for a registrant or In addition to those disclosures have been displaced by a Presidentially- family/household member (searcher) generally permitted under 5 U.S.C. declared disaster or emergency and who consists of: 552a(b) of the Privacy Act, all or a voluntarily register in NEFRLS; family • Searching Individual’s Full Name; portion of the records or information or household members who are • Permanent Address; contained in this system may be

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disclosed outside DHS as a routine use contract, service, grant, cooperative POLICIES AND PRACTICES FOR STORING, pursuant to 5 U.S.C. 552a(b)(3) as agreement, or other assignment for DHS, RETRIEVING, ACCESSING, RETAINING, AND follows: when necessary to accomplish an DISPOSING OF RECORDS IN THE SYSTEM: A. To the Department of Justice (DOJ), agency function related to this system of STORAGE: including U.S. Attorney Offices, or other records. Individuals provided Records in this system are stored Federal agency conducting litigation or information under this routine use are electronically or on paper in secure in proceedings before any court, subject to the same Privacy Act facilities in a locked drawer behind a adjudicative or administrative body, requirements and limitations on locked door. The records are stored on when it is necessary to the litigation and disclosure as are applicable to DHS magnetic disc, tape, digital media, and one of the following is a party to the officers and employees. CD–ROM. litigation or has an interest in such G. To an appropriate Federal, state, litigation: RETRIEVABILITY: 1. DHS or any component thereof; local, tribal, territorial, international, or 2. Any employee of DHS in his/her foreign law enforcement agency or other Records may be retrieved by name, official capacity; appropriate authority charged with address, and phone number of the individual registering or searching in 3. Any employee of DHS in his/her investigating or prosecuting a violation the National Emergency Family Registry individual capacity where DOJ or DHS or enforcing or implementing a law, and Locator System. has agreed to represent the employee; or rule, regulation, or order, where a 4. The U.S. or any agency thereof, is record, either on its face or in SAFEGUARDS: a party to the litigation or has an interest conjunction with other information, Records in this system are in such litigation, and DHS determines indicates a violation or potential that the records are both relevant and safeguarded in accordance with violation of law, which includes applicable rules and policies, including necessary to the litigation and the use of criminal, civil, or regulatory violations such records is compatible with the all applicable DHS automated systems and such disclosure is proper and purpose for which DHS collected the security and access policies. Strict consistent with the official duties of the records. controls have been imposed to minimize B. To a congressional office from the person making the disclosure. the risk of compromising the record of an individual in response to H. To appropriate authorized Federal, information that is being stored. Access an inquiry from that congressional office state, local, tribal, territorial, to the computer system containing the made at the request of the individual to international, or foreign law records in this system is limited to those whom the record pertains. enforcement officers charged with individuals who have a need to know C. To the National Archives and investigating the whereabouts or the information for the performance of their official duties and who have Records Administration (NARA) or locating missing persons. other Federal government agencies appropriate clearances or permissions. I. To the National Center for Missing pursuant to records management RETENTION AND DISPOSAL: inspections being conducted under the and Exploited Children and voluntary authority of 44 U.S.C. 2904 and 2906. organizations as defined in 44 CFR In accordance with the FEMA Records D. To an agency, organization, or 206.2(a)(27) that have an established Schedule (FRS) and NARA Disposition individual for the purpose of performing disaster assistance program to address Authority number N1–311–09–1, audit or oversight operations as the disaster-related unmet needs of records and reports related to and authorized by law, but only such disaster victims, are actively involved in regarding registrations and searchers in information as is necessary and relevant the recovery efforts of the disaster, and NEFRLS performed by a displaced to such audit or oversight function. either have a national membership, in person, Call Center Operator on behalf E. To appropriate agencies, entities, good standing, with the National of a displaced person, or family and and persons when: Voluntary Organizations Active in friends will be cut off 60 days after the 1. DHS suspects or has confirmed that Disaster, or are participating in the last edit to the record and destroyed/ the security or confidentiality of disaster’s Long-Term Recovery deleted three years after the cutoff. information in the system of records has Committee for the express purpose of Additionally, in compliance with FRS been compromised; reunifying families. and NARA Disposition Authority 2. DHS has determined that as a result number N1–311–04–5, Item 3, records of the suspected or confirmed J. To Federal, state, local, tribal, in this system associated with a compromise there is a risk of harm to territorial, international, or foreign domestic catastrophic event will have economic or property interests, identity agencies that coordinate with FEMA permanent value. A catastrophic event theft or fraud, or harm to the security or under the National Response may be any natural or manmade integrity of this system or other systems Framework (an integrated plan incident, including terrorism, which or programs (whether maintained by explaining how the Federal government results in extraordinary levels of mass DHS or another agency or entity) or will interact with and support state, casualties, damage, or disruption harm to the individual that rely upon local, tribal, territorial, and non- severely affecting the population, the compromised information; and governmental entities during a infrastructure, environment, economy, 3. The disclosure made to such Presidentially-declared disaster or national morale, and/or government agencies, entities, and persons is emergency) for the purpose of assisting functions. A catastrophic event could reasonably necessary to assist in with the investigation on the result in sustained national impacts connection with DHS’s efforts to whereabouts of or locating missing over a prolonged period of time; almost respond to the suspected or confirmed persons. immediately exceeds resources compromise and prevent, minimize, or normally available to state, local, tribal, remedy such harm. DISCLOSURE TO CONSUMER REPORTING territorial and private-sector authorities F. To contractors and their agents, AGENCIES: in the impacted area; and significantly grantees, experts, consultants, and interrupts governmental operations and others performing or working on a None. emergency services to such an extent

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that national security could be RECORD SOURCE CATEGORIES: Department of Homeland Security, threatened. Records are obtained from registrants Washington, DC 20528. of NEFRLS and individuals searching • Instructions: All submissions SYSTEM MANAGER AND ADDRESS: NEFRLS, LEOs, and the third party received must include the agency name Deputy Director, Individual authentication service indicating an and docket number for this rulemaking. Assistance, Disaster Assistance individual has been approved or not All comments received will be posted Directorate, Federal Emergency approved. without change to http:// Management Agency, 500 C Street, SW., www.regulations.gov, including any EXEMPTIONS CLAIMED FOR THE SYSTEM: Washington, DC 20472. personal information provided. None. • Docket: For access to the docket to NOTIFICATION PROCEDURE: Dated: July 25, 2011. read background documents or Individuals seeking notification of Mary Ellen Callahan, comments received go to http:// and access to any record contained in Chief Privacy Officer, Department of www.regulations.gov. this system of records, or seeking to Homeland Security. FOR FURTHER INFORMATION CONTACT: For contest its content, may submit a [FR Doc. 2011–22167 Filed 8–29–11; 8:45 am] questions please contact: Mary Ellen request in writing to FEMA’s FOIA BILLING CODE 9110–17–P Callahan (703–235–0780), Chief Privacy Officer, 500 C Street, SW., Attn: FOIA Officer, Privacy Office, Department of Coordinator, Washington, DC 20472. Homeland Security, Washington, DC When seeking records about yourself DEPARTMENT OF HOMELAND 20528. from this system of records or any other SECURITY SUPPLEMENTARY INFORMATION: Departmental system of records your request must conform with the Privacy Office of the Secretary I. Background Act regulations set forth in 6 CFR part [Docket No. DHS–2011–0081] In accordance with the Privacy Act of 5. You must first verify your identity, 1974, 5 U.S.C. 552a, the Department of Privacy Act of 1974; Department of meaning that you must provide your full Homeland Security (DHS) Office of Homeland Security ALL—034 name, current address and date and Health Affairs (OHA) proposes to Emergency Care Medical Records place of birth. You must sign your establish a new DHS system of records System of Records Notice request, and your signature must either titled, ‘‘DHS/ALL—034 Emergency Care be notarized or submitted under AGENCY: Privacy Office, DHS. Medical Records.’’ 28 U.S.C. 1746, a law that permits The Assistant Secretary for Health statements to be made under penalty of ACTION: Notice of Privacy Act system of records. Affairs and Chief Medical Officer perjury as a substitute for notarization. (ASHA/CMO) exercises oversight over While no specific form is required, you SUMMARY: In accordance with the all medical and public health activities may obtain forms for this purpose from Privacy Act of 1974, the Department of of DHS, with the exception of U.S. Coast the Chief Privacy Officer and Chief Homeland Security proposes to Guard (USCG) medical and public Freedom of Information Act Officer, establish a new Department of health activities. Throughout its http://www.dhs.gov or 1–866–431–0486. Homeland Security system of records components, the DHS workforce In addition you should provide the titled, ‘‘Department of Homeland includes approximately 3,500 following: Security/ALL—034 Emergency Care Emergency Medical Service (EMS) • An explanation of why you believe Medical Records System of Records healthcare providers rendering the Department would have information Notice.’’ This system of records will emergency medical care in the pre- on you; allow the Department of Homeland hospital environment, primarily to DHS • Identify which component(s) of the Security Office of Health Affairs to employees and, when necessary, to Department you believe may have the collect and maintain records on individuals encountered in the course of information about you; individuals who receive emergency care duty in need of emergency care. These • Specify when you believe the from Department Emergency Medical DHS EMS healthcare providers are records would have been created; Services providers. Individuals in this employed by the following DHS • Provide any other information that system include anyone who experiences components: U.S. Customs and Border will help the FOIA staff determine a medical emergency and is treated by Protection (CBP), U.S. Immigration and which DHS component agency may an on-duty Departmental Emergency Customs Enforcement (ICE), the United have responsive records; and Medical Services medical care provider. States Secret Service (USSS), • If your request is seeking records This newly established system will be Transportation Security Administration pertaining to another living individual, included in the Department of (TSA), U.S. Citizenship and you must include a statement from that Homeland Security’s inventory of Immigration Services (USCIS), Federal individual certifying his/her agreement record systems. Law Enforcement Training Center for you to access his/her records. DATES: Submit comments on or before (FLETC), Federal Emergency Without this bulleted information the September 29, 2011. This new system Management Agency (FEMA), and component(s) may not be able to will be effective September 29, 2011. Science & Technology Directorate (S&T). conduct an effective search, and your ADDRESSES: You may submit comments, OHA administers oversight of DHS request may be denied due to lack of identified by docket number DHS– EMS healthcare providers through its specificity or lack of compliance with 2011–0081 by one of the following Medical Quality Management (MQM) applicable regulations. methods: program, to ensure DHS EMS providers • Federal e-Rulemaking Portal: deliver consistent, quality medical care. RECORD ACCESS PROCEDURES: http://www.regulations.gov. Follow the To support MQM, OHA operates the See ‘‘Notification procedure’’ above. instructions for submitting comments. electronic Patient Care Record (ePCR), • Fax: 703–483–2999. an electronic encounter-based database CONTESTING RECORD PROCEDURES: • Mail: Mary Ellen Callahan, Chief designed for EMS management. After See ‘‘Notification procedure’’ above. Privacy Officer, Privacy Office, administering emergency care, DHS

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EMS medical care providers manually medical record management) within records under the control of an agency enter emergency medical care DHS. The responsibility of MQM for which information is retrieved by information into ePCR. ePCR captures necessitates a patient care reporting the name of an individual or by some all aspects of patient care, from the system to gather records of pre-hospital identifying number, symbol, or other initial dispatch of a vehicle and emergency medical care rendered by identifying particular assigned to the personnel to a designated site, DHS employees, as part of their official individual. In the Privacy Act, an demographics, vital signs (initial DHS duties. individual is defined to encompass U.S. assessment), treatment, and transfer of Due to the sensitive and private citizens and lawful permanent care and/or patient transport. The nature of patient medical records, ePCR residents. As a matter of policy, DHS system captures patient data such as has been evaluated to identify risks and extends administrative Privacy Act name, date of birth, and medical corresponding mitigation strategies. protections to all individuals where information. Concurrent with the Risks may include unauthorized systems of records maintain information publication of this notice, DHS is disclosures, incorrect data entry, on U.S. citizens, lawful permanent publishing a Privacy Impact Assessment software viruses, unauthorized access to residents, and visitors. (PIA) describing the ePCR system. This the system, sharing of data with private Below is the description of the DHS/ PIA will be available at the DHS Privacy sector entities, and data security OHA–002 Emergency Care Medical Office Web site at http://www.dhs.gov/ breaches. Mitigation activities involve Records System of Records. privacy. ePCR improves MQM at the privacy and security awareness training In accordance with 5 U.S.C. 552a(r), Department by allowing OHA to track for all users, enforcement of role-based DHS has provided a report of this and trend data quality, including access to varied aspects of ePCR (e.g., system of records to the Office of documentation review, clinical end-users have access only to their Management and Budget and to performance, and performance component-specific patient data and Congress. improvement initiatives. This system any other patient encounter reports for assists OHA in assessing overall quality which they have been identified as III. Health Insurance Portability and of care provided while ensuring that a providing care). Accountability Act high standard of care is continually met. Designated persons (Component For this collection of health This includes electronic data in ePCR Medical Director, Component EMS information, OHA and participating operated by OHA as well as those same Coordinators, and ePCR Administrator) components are not subject to the EMS encounter records when kept by within the components will have full provisions of the Health Insurance the EMS provider, in paper form. administrative review access to all Portability and Accountability Act Individuals covered by this system records for quality assurance purposes. (HIPAA) of 1996 regulation, ‘‘Standards include members of the public who are The OHA Medical Quality Management for Privacy of Individually Identifiable treated by on-duty DHS Emergency Branch and the OHA Medical First Health Information’’ (Privacy Rule), 45 Medical Services (EMS) healthcare Responder Coordination Branch will CFR parts 160 and 164. OHA does not provider. When patients are DHS or have rights to run ad hoc reports and meet the statutory definition of a other federal employees, their records query data as it relates to quality covered entity under HIPAA, 42 U.S.C. are considered part of the OPM/GOVT– assurance tracking and trending 1320d–1. Because OHA and 10—Employee Medical File System indicators (completeness of record, participating components are not a Records, 71 FR 3560 (Jun. 19, 2006.) adherence to standards of care/protocols covered entity, the restrictions When patients are not Federal and training) on all component data. prescribed by the HIPAA Privacy Rule employees, such as members of the Audit logs are periodically reviewed for are not applicable. public, their records are considered part inconsistencies. Any inconsistencies are of this system. immediately addressed through the SYSTEM OF RECORDS OHA has primary responsibility Component Medical Director, EMS Department of Homeland Security (DHS)/ within the Department for ‘‘ensuring coordinators, or Component Information Office of Health Affairs (OHA)—002 internal and external coordination of all Technology (IT) and Security Emergency Care Medical Records (ECMR) medical preparedness and response Compliance Officer to correct or resolve activities of the Department, including any issues and concerns. The purpose of SYSTEM NAME: training, exercises, and equipment ePCR is to support OHA’s MQM DHS/OHA—002 Emergency Care support.’’ See Section 516(c)(3) of the program, and this purpose is supported Medical Records. Post Katrina Emergency Management by routine uses for sharing this data for SECURITY CLASSIFICATION: and Reform Act, Public Law109–295, 6 notification of medical hazard, worker’s Unclassified. U.S.C. 321e(c). In addition, the compensation claims, through formal Secretary has delegated to OHA legal channels, and other limited SYSTEM LOCATION: responsibility for providing oversight administrative purposes. Records are maintained in the for all medical and health activities of This newly established system will be electronic Patient Care Record (ePCR) the Department. See DHS Delegation to included in DHS’s inventory of record system at the OHA Headquarters in the Assistant Secretary of Health Affairs systems. Washington, DC. and Chief Medical Officer, No. 5001 (signed July 28, 2008). As per internal II. Privacy Act CATEGORIES OF INDIVIDUALS COVERED BY THE DHS directive, OHA ensures the MQM The Privacy Act embodies fair SYSTEM: program is appropriately implemented information practice principles in a Individuals covered by this system within the department and that health statutory framework governing the include members of the public, care service standards are consistently means by which the U.S. Government including federal contractors, who are applied across the department. This collects, maintains, uses, and treated by an on-duty DHS Emergency includes exercising oversight for disseminates individuals’ records. The Medical Services (EMS) healthcare development of quality assurance Privacy Act applies to information that provider. When patients are DHS or activities (quality improvement, risk is maintained in a ‘‘system of records.’’ other federal employees, their records management documentation, and A ‘‘system of records’’ is a group of any are considered part of the OPM/GOVT–

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10—Employee Medical File System consistent quality medical care and DHS or another agency or entity) or Records, 71 FR 35360 (Jun. 19, 2006.) standardize the documentation of care harm to the individual that rely upon rendered by DHS EMS medical care the compromised information; and CATEGORIES OF RECORDS IN THE SYSTEM: providers in diverse environments. 3. The disclosure made to such • Patient name. • agencies, entities, and persons is Patient case/identification number ROUTINE USES OF RECORDS MAINTAINED IN THE reasonably necessary to assist in (not Social Security Number). SYSTEM, INCLUDING CATEGORIES OF USERS AND connection with DHS’s efforts to • THE PURPOSES OF SUCH USES: Account of the illness or injury. respond to the suspected or confirmed • Date of birth and age. In addition to those disclosures • compromise and prevent, minimize, or Gender. generally permitted under 5 U.S.C. • remedy such harm. Location. 552a(b) of the Privacy Act, all or a • Address (residential or business, if/ F. To contractors and their agents, portion of the records or information grantees, experts, consultants, and as relevant). contained in this system may be • Type of injury. others performing or working on a • Current medications. disclosed outside DHS as a routine use contract, service, grant, cooperative • Allergies. pursuant to 5 U.S.C. 552a(b)(3) as agreement, or other assignment for DHS, • Past medical history. follows: when necessary to accomplish an • Assessment of injury. A. To the Department of Justice (DOJ), agency function related to this system of • Chief complaint. including U.S. Attorney Offices, or other records. Individuals provided • Vital signs. federal agency conducting litigation or information under this routine use are • Treatment provided and/or in proceedings before any court, subject to the same Privacy Act procedures. adjudicative or administrative body, requirements and limitations on • Transfer of care, refusal of care, when it is necessary to the litigation and disclosure as are applicable to DHS and/or transportation mode and one of the following is a party to the officers and employees. destination. litigation or has an interest in such G. To appropriate federal, State, local, • Medication dispensed. litigation: • tribal, or foreign governmental agencies Discharge instructions for follow-on 1. DHS or any component thereof; or multilateral governmental care. 2. Any employee of DHS in his/her • organizations for the purpose of If necessary, patient’s guardian or official capacity; protecting the vital interests of a data legal representative. 3. Any employee of DHS in his/her subject or other persons or to comply • Patient’s health insurance individual capacity where DOJ or DHS with laws governing reporting of information, if any. has agreed to represent the employee; or communicable disease, including to AUTHORITY FOR MAINTENANCE OF THE SYSTEM: 4. The U.S. or any agency thereof, is assist such agencies or organizations in OHA has primary responsibility a party to the litigation or has an interest preventing exposure to or transmission within the Department for ‘‘ensuring in such litigation, and DHS determines of a communicable or quarantinable internal and external coordination of all that the records are both relevant and disease or to combat other significant medical preparedness and response necessary to the litigation and the use of public health threats; appropriate notice activities of the Department, including such records is compatible with the will be provided of any identified health training, exercises, and equipment purpose for which DHS collected the threat or risk. support.’’ See Section 516(c)(3) of the records. H. To hospitals, physicians, medical Post Katrina Emergency Management B. To a congressional office from the laboratories and testing facilities, and and Reform Act, Pub. L. 109–295, record of an individual in response to other medical service providers, for the 6 U.S.C. 321e(c). In addition, the an inquiry from that congressional office purpose of diagnosing and treating Secretary has delegated to OHA made at the request of the individual to medical conditions or arranging the care responsibility for providing oversight whom the record pertains. of patients who have been treated by for all medical and health activities of C. To the National Archives and DHS EMS providers. the Department. See DHS Delegation to Records Administration (NARA) or I. To foreign governments for the the Assistant Secretary of Health Affairs other federal government agencies purpose of coordinating and conducting and Chief Medical Officer, No. 5001 pursuant to records management the removal or return of aliens from the (signed July 28, 2008). As per internal inspections being conducted under the United States to other nations when DHS directive, OHA ensures the MQM authority of 44 U.S.C. 2904 and 2906. disclosure of information about the program is appropriately implemented D. To an agency, organization, or alien’s health is necessary or advisable within the department and that health individual for the purpose of performing to safeguard the public health, to care service standards are consistently audit or oversight operations as facilitate transportation of the alien, to applied across the department. This authorized by law, but only such obtain travel documents for the alien, to includes exercising oversight for information as is necessary and relevant ensure continuity of medical care for the development of quality assurance to such audit or oversight function. alien, or is otherwise required by activities (quality improvement, risk E. To appropriate agencies, entities, international agreement or law. management documentation, and and persons when: J. To immediate family members and medical record management) within 1. DHS suspects or has confirmed that attorneys or other agents acting on DHS. The responsibility of MQM the security or confidentiality of behalf of a patient to assist those necessitates a patient care reporting information in the system of records has individuals in determining the current system to gather records of pre-hospital been compromised; medical condition and/or location of a emergency medical care rendered by 2. DHS has determined that as a result patient to whom DHS has provided DHS employees, as part of their official of the suspected or confirmed emergency medical care, provided they DHS duties. compromise there is a risk of harm to can present adequate verification of a economic or property interests, identity familial or agency relationship with the PURPOSE(S): theft or fraud, or harm to the security or patient. The purpose of this system is to integrity of this system or other systems K. To independent standardization support MQM oversight to ensure or programs (whether maintained by and medical quality management

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repositories, such as the National Health Affairs, Department of Homeland psychological records, the decision to Emergency Medical Services Security, Washington, DC 20528. release directly to the individual, or to Information System (NEMSIS), in de- withhold direct release, shall be made NOTIFICATION PROCEDURE: identified, aggregate form only, to by a medical practitioner. Where the promote DHS compliance with Individuals seeking notification of medical practitioner has ruled that emergency medical care industry and access to any record contained in direct release will cause harm to the standards and best practices. this system of records, or seeking to individual who is requesting access, L. To any person who is responsible contest its content, may submit a normal release through the individual’s for the care of the individual, to the request in writing to the Headquarters chosen medical practitioner will be extent necessary to assure payment of FOIA Officer, whose contact recommended. Final review and benefits to which the individual is information can be found at http:// decision on appeals of disapprovals of entitled, when an individual to whom a www.dhs.gov/foia under ‘‘contacts.’’ If direct release will rest with the General record pertains is mentally incompetent an individual believes more than one Counsel. or under other legal disability. component maintains Privacy Act RECORD ACCESS PROCEDURES: M. To the patient’s health insurance records concerning him or her the company to facilitate any payment and individual may submit the request to See ‘‘Notification procedure’’ above. billing negotiations between the patient, the Chief Privacy Officer and Chief CONTESTING RECORD PROCEDURES: Freedom of Information Act Officer, the insurance carrier and the agency. See ‘‘Notification procedure’’ above. Department of Homeland Security, 245 DISCLOSURE TO CONSUMER REPORTING Murray Drive, SW., Building 410, RECORD SOURCE CATEGORIES: AGENCIES: STOP–0655, Washington, DC 20528. Records are obtained from DHS EMS None. When seeking records about yourself medical care providers and their from this system of records or any other POLICIES AND PRACTICES FOR STORING, patients, either in the care and custody RETRIEVING, ACCESSING, RETAINING, AND Departmental system of records your of the Department, at the DHS DISPOSING OF RECORDS IN THE SYSTEM: request must conform with the Privacy workplace, or in conjunction with a Act regulations set forth in 6 CFR part medical emergency where an on-duty STORAGE: 5. You must first verify your identity, DHS EMS is the medical care provider. Records in this system are stored meaning that you must provide your full electronically or on paper in secure name, current address and date and EXEMPTIONS CLAIMED FOR THE SYSTEM: facilities in a locked drawer behind a place of birth. You must sign your None. locked door. The records are stored on request, and your signature must either Dated: August 23, 2011. magnetic disc, tape, digital media, and be notarized or submitted under 28 Mary Ellen Callahan, CD–ROM. U.S.C. 1746, a law that permits Chief Privacy Officer, Department of RETRIEVABILITY: statements to be made under penalty of Homeland Security. perjury as a substitute for notarization. Records may be retrieved by any of [FR Doc. 2011–22169 Filed 8–29–11; 8:45 am] While no specific form is required, you the fields listed in the Categories of BILLING CODE 4410–9K–P may obtain forms for this purpose from Records listed above. the Chief Privacy Officer and Chief SAFEGUARDS: Freedom of Information Act Officer, DEPARTMENT OF HOMELAND Records in this system are http://www.dhs.gov or 1–866–431–0486. SECURITY safeguarded in accordance with In addition you should provide the applicable rules and policies, including following: Coast Guard • all applicable DHS automated systems An explanation of why you believe [Docket No. USCG–2011–0821] security and access policies. Strict the Department would have information controls have been imposed to minimize on you; Merchant Mariner Medical Advisory • the risk of compromising the Identify which component(s) of the Committee information that is being stored. Access Department you believe may have the AGENCY: Coast Guard, DHS. to the computer system containing the information about you; • ACTION: records in this system is limited to those Specify when you believe the Notice of federal advisory records would have been created; committee meeting. individuals who have a need to know • the information for the performance of Provide any other information that will help the FOIA staff determine SUMMARY: The Merchant Mariner their official duties and who have Medical Advisory Committee appropriate clearances or permissions. which DHS component agency may have responsive records; and (MMMAC) will hold its inaugural RETENTION AND DISPOSAL: • If your request is seeking records meeting starting Monday, September 19, and ending Wednesday September 21, Based on the most conservative pertaining to another living individual, 2011. The meetings will be open to the industry standards advised to you must include a statement from that public. implement Medical Quality individual certifying his/her agreement Management, OHA will propose a for you to access his/her records. DATES: MMMAC will meet on Monday, retention schedule of ten (10) years from Without this bulleted information the September 19, Tuesday, September 20, the date of the EMS provider encounter. component(s) may not be able to and Wednesday, September 21, 2011 Records will be retained pending the conduct an effective search, and your from 8:30 a.m. to 4:30 p.m. Please note final approval by the National Archives request may be denied due to lack of that the meeting may close early if the and Records Administration of this specificity or lack of compliance with committee has completed its business. records schedule. applicable regulations. Consistent with ADDRESSES: The meeting will be held at 6 CFR 5.22(f) Release of Medical the Calhoon Marine Engineers SYSTEM MANAGER AND ADDRESS: Records, and pursuant to 5 U.S.C. Beneficial Association (MEBA) Director, Workforce Health and 552a(f)(3), where requests are made for Engineering School at 27050 Saint Medical Support Division, Office of access to medical records, including Michaels Road, Easton, MD 21601.

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For information on facilities or Alternate Designated Federal Officer —Aging Mariners—Presentation to services for individuals with disabilities (ADFO), at telephone 202–372–1128 or address the committee on the or to request special assistance at the e-mail [email protected]. If you concerns with aging mariners. meeting, contact Anne Higgins, MEBA have questions about the MEBA facility, Discuss/Present how medical issues School Executive Assistant, 410–822– contact Anne Higgins, MEBA School impact mariners as they age and the 9600 Extension 338 as soon as possible. Executive Assistant, at telephone 410– aged mariner is normally your more To facilitate public participation, we 822–9600 Extension 338 or e-mail competent mariner. are inviting public comment on the [email protected]. If you have (8) Acceptance of task statements by issues to be considered by the questions on viewing or submitting committee and establishment of work committee as listed in the ‘‘Summary’’ material to the docket, call Renee V. groups; section below. Comments must be Wright, Program Manager, Docket submitted in writing to the Coast Guard Operations, telephone 202–366–9826. Day 2 on or before September 12, 2011 and SUPPLEMENTARY INFORMATION: Notice of Work groups meetings on tasks must be identified by USCG–2011–0821 this meeting is given under the Federal accepted by the committee. and may be submitted by one of the Advisory Committee Act, 5 U.S.C. App. Day 3 following methods: (Pub. L. 92–463). The MMMAC is • Federal eRulemaking Portal: http:// authorized by section 210 of the Coast (1) Report of working groups; www.regulations.gov. Follow the Guard Authorization Act of 2010 (Pub. (2) Public comments/presentations; instructions for submitting comments L. 111–281) and the Committee’s and (preferred method to avoid delays in purpose is to advise the Secretary on (3) Closing remarks/plans for next processing). matters related to medical certification meeting. • Fax: 202–372–1918. determinations for issuance of merchant Dated: August 24, 2011. • Mail: Docket Management Facility mariner credentials; medical standards J. A. Watson, (M–30), U.S. Department of and guidelines for the physical Rear Admiral, U.S. Coast Guard, Director of Transportation, West Building Ground qualifications of operators of Prevention Policy. Floor, Room W12–140, 1200 New Jersey commercial vessels; medical examiner [FR Doc. 2011–22197 Filed 8–29–11; 8:45 am] Avenue, SE., Washington, DC 20590– education; and medical research. 0001. BILLING CODE 9110–04–P • Hand delivery: Same as mail Agenda address above, between 9 a.m. and Day 1 DEPARTMENT OF HOMELAND 5 p.m., Monday through Friday, except (1) Opening comments by Designated SECURITY Federal Holidays. The telephone Federal Officer (DFO), Captain E. P. number is 202–366–9329. Christensen; Federal Emergency Management Instructions: All submissions received (2) Introduction and swearing in of Agency must include the words ‘‘Department of the new members; Homeland Security’’ and the docket [Internal Agency Docket No. FEMA–4007– (3) Remarks from Coast Guard DR; Docket ID FEMA–2011–0001] number for this action. Comments Leadership, Rear Admiral J. A. Watson; received will be posted without (4) Staff Administration issues; Wyoming; Major Disaster and Related alteration at http://www.regulations.gov, (5) Designation of the Chair and Vice- Determinations including any personal information Chair; AGENCY: Federal Emergency provided. You may review a Privacy Act (6) Public Comments/Presentations; Management Agency, DHS. notice regarding our public dockets in and the January 17, 2008, issue of the (7) Presentation of Issues and Tasks ACTION: Notice. Federal Register (73 FR 3316). (Order of Presentations TBD); SUMMARY: This is a notice of the Docket: For access to the docket to —Briefing the committee on the Coast read background documents or Presidential declaration of a major Guard’s Mariner Credentialing disaster for the State of Wyoming comments related to this notice, go to Program and mariner evaluation http://www.regulations.gov. (FEMA–4007–DR), dated July 22, 2011, process. and related determinations. Two public comment periods will be —Report of maritime casualties with a DATES: Effective Date: July 22, 2011. held during the meeting. The first nexus to mariner medical issues. public comment period will be held on —Form CG–719K & CG–719K/E— FOR FURTHER INFORMATION CONTACT: Day 1 September 19, 2011 prior to the Review of the forms used by Peggy Miller, Office of Response and presentation of issues and task and the physicians for documenting the Recovery, Federal Emergency second comment period will be held on medical/fitness exams of merchant Management Agency, 500 C Street, SW., Day 3, September 21, 2011 from 10:00 mariners and discussion of Washington, DC 20472, (202) 646–3886. to 11:00 a.m. Speakers are requested to recommendations for improvement. SUPPLEMENTARY INFORMATION: Notice is limit their comments to 3 minutes. —Review of the most common mariner hereby given that, in a letter dated July Please note that the public comment medical conditions leading to the 22, 2011, the President issued a major period may end before the time denial of a mariner’s application and disaster declaration under the authority indicated, following the last call for discussion of applicable standards or of the Robert T. Stafford Disaster Relief comments. Additionally, public guidance. and Emergency Assistance Act, 42 comment will be sought throughout the —Revising the Medical and Physical U.S.C. 5121 et seq. (the ‘‘Stafford Act’’), meeting as specific tasks and issues are Evaluation Guidelines for Merchant as follows: discussed by the committee. Contact the Mariner Credentials, Navigation. individual listed below to register as a I have determined that the damage in —and Vessel Inspection Circular No. certain areas of the State of Wyoming speaker. 04–08 (NVIC 04–08). resulting from severe storms, flooding, and FOR FURTHER INFORMATION CONTACT: —Discussion of the development of landslides during the period of May 18 to Lieutenant Dylan McCall, the MMMAC Designated Medical Examiners. July 8, 2011, is of sufficient severity and

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magnitude to warrant a major disaster DEPARTMENT OF HOMELAND The Federal Emergency Management declaration under the Robert T. Stafford SECURITY Agency (FEMA) hereby gives notice that Disaster Relief and Emergency Assistance pursuant to the authority vested in the Act, 42 U.S.C. 5121 et seq. (the ‘‘Stafford Federal Emergency Management Administrator, under Executive Order Act’’). Therefore, I declare that such a major Agency 12148, as amended, Elizabeth Turner, of disaster exists in the State of Wyoming. FEMA is appointed to act as the Federal In order to provide Federal assistance, you [Internal Agency Docket No. FEMA–4012– DR; Docket ID FEMA–2011–0001] Coordinating Officer for this major are hereby authorized to allocate from funds disaster. available for these purposes such amounts as The following areas of the State of you find necessary for Federal disaster Missouri; Major Disaster and Related Determinations Missouri have been designated as assistance and administrative expenses. adversely affected by this major disaster: You are authorized to provide Public AGENCY: Federal Emergency Andrew, Atchison, Buchanan, Holt, Assistance in the designated areas and Management Agency, DHS. Hazard Mitigation throughout the State. Lafayette, and Platte Counties for Individual Consistent with the requirement that Federal ACTION: Notice. Assistance. assistance is supplemental, any Federal All counties and the Independent City of SUMMARY: This is a notice of the St. Louis in the State of Missouri are eligible funds provided under the Stafford Act for Presidential declaration of a major to apply for assistance under the Hazard Public Assistance and Hazard Mitigation will disaster for the State of Missouri Mitigation Grant Program. be limited to 75 percent of the total eligible (FEMA–4012–DR), dated August 12, costs. (The following Catalog of Federal Domestic Assistance Numbers (CFDA) are to be used Further, you are authorized to make 2011, and related determinations. DATES: Effective Date: August 12, 2011. for reporting and drawing funds: 97.030, changes to this declaration for the approved Community Disaster Loans; 97.031, Cora assistance to the extent allowable under the FOR FURTHER INFORMATION CONTACT: Brown Fund; 97.032, Crisis Counseling; Stafford Act. Peggy Miller, Office of Response and 97.033, Disaster Legal Services; 97.034, Recovery, Federal Emergency Disaster Unemployment Assistance (DUA); The Federal Emergency Management Management Agency, 500 C Street, SW., 97.046, Fire Management Assistance Grant; Agency (FEMA) hereby gives notice that Washington, DC 20472, (202) 646–3886. 97.048, Disaster Housing Assistance to pursuant to the authority vested in the Individuals and Households In Presidentially SUPPLEMENTARY INFORMATION: Notice is Administrator, under Executive Order Declared Disaster Areas; 97.049, 12148, as amended, Mark H. Armstrong, hereby given that, in a letter dated Presidentially Declared Disaster Assistance— of FEMA is appointed to act as the August 12, 2011, the President issued a Disaster Housing Operations for Individuals Federal Coordinating Officer for this major disaster declaration under the and Households; 97.050, Presidentially major disaster. authority of the Robert T. Stafford Declared Disaster Assistance to Individuals Disaster Relief and Emergency and Households—Other Needs; 97.036, The following areas of the State of Assistance Act, 42 U.S.C. 5121 et seq. Disaster Grants—Public Assistance Wyoming have been designated as (the ‘‘Stafford Act’’), as follows: (Presidentially Declared Disasters); 97.039, adversely affected by this major disaster: Hazard Mitigation Grant.) I have determined that the damage in Albany, Big Horn, Carbon, Crook, Fremont, certain areas of the State of Missouri W. Craig Fugate, Goshen, Johnson, Lincoln, Platte, Sheridan, resulting from flooding during the period of Administrator, Federal Emergency Sublette, Teton, Uinta, Washakie, and June 1 to August 1, 2011, is of sufficient Management Agency. Weston Counties and the Wind River Indian severity and magnitude to warrant a major [FR Doc. 2011–22175 Filed 8–29–11; 8:45 am] Reservation for Public Assistance. disaster declaration under the Robert T. BILLING CODE 9111–23–P All counties and Indian Tribes within the Stafford Disaster Relief and Emergency State of Wyoming are eligible to apply for Assistance Act, 42 U.S.C. 5121 et seq. (the ‘‘Stafford Act’’). Therefore, I declare that such assistance under the Hazard Mitigation Grant DEPARTMENT OF HOMELAND Program. a major disaster exists in the State of Missouri. SECURITY (The following Catalog of Federal Domestic In order to provide Federal assistance, you Assistance Numbers (CFDA) are to be used are hereby authorized to allocate from funds Federal Emergency Management for reporting and drawing funds: 97.030, available for these purposes such amounts as Agency Community Disaster Loans; 97.031, Cora you find necessary for Federal disaster [Internal Agency Docket No. FEMA–4011– Brown Fund; 97.032, Crisis Counseling; assistance and administrative expenses. DR; Docket ID FEMA–2011–0001] 97.033, Disaster Legal Services; 97.034, You are authorized to provide Individual Assistance in the designated areas and Disaster Unemployment Assistance (DUA); Utah; Major Disaster and Related 97.046, Fire Management Assistance Grant; Hazard Mitigation throughout the State. Determinations 97.048, Disaster Housing Assistance to Consistent with the requirement that Federal Individuals and Households in Presidentially assistance is supplemental, any Federal AGENCY: Federal Emergency funds provided under the Stafford Act for Declared Disaster Areas; 97.049, Management Agency, DHS. Presidentially Declared Disaster Assistance— Hazard Mitigation and Other Needs ACTION: Notice. Disaster Housing Operations for Individuals Assistance will be limited to 75 percent of and Households; 97.050, Presidentially the total eligible costs. Further, you are authorized to make SUMMARY: This is a notice of the Declared Disaster Assistance to Individuals changes to this declaration for the approved Presidential declaration of a major and Households—Other Needs; 97.036, assistance to the extent allowable under the disaster for the State of Utah (FEMA– Disaster Grants—Public Assistance Stafford Act. 4011–DR), dated August 8, 2011, and (Presidentially Declared Disasters); 97.039, related determinations. Hazard Mitigation Grant.) The time period prescribed for the implementation of section 310(a), DATES: Effective Date: August 8, 2011. W. Craig Fugate, Priority to Certain Applications for FOR FURTHER INFORMATION CONTACT: Administrator, Federal Emergency Public Facility and Public Housing Peggy Miller, Office of Response and Management Agency. Assistance, 42 U.S.C. 5153, shall be for Recovery, Federal Emergency [FR Doc. 2011–22170 Filed 8–29–11; 8:45 am] a period not to exceed six months after Management Agency, 500 C Street, SW., BILLING CODE 9111–23–P the date of this declaration. Washington, DC 20472, (202) 646–3886.

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SUPPLEMENTARY INFORMATION: Notice is Disaster Grants—Public Assistance assistance to the extent allowable under the hereby given that, in a letter dated (Presidentially Declared Disasters); 97.039, Stafford Act. Hazard Mitigation Grant.) August 8, 2011, the President issued a The Federal Emergency Management major disaster declaration under the W. Craig Fugate, Agency (FEMA) hereby gives notice that authority of the Robert T. Stafford Administrator, Federal Emergency pursuant to the authority vested in the Disaster Relief and Emergency Management Agency. Administrator, under Executive Order Assistance Act, 42 U.S.C. 5121 et seq. [FR Doc. 2011–22179 Filed 8–29–11; 8:45 am] 12148, as amended, Bradley Harris, of (the ‘‘Stafford Act’’), as follows: BILLING CODE 9111–23–P FEMA is appointed to act as the Federal I have determined that the damage in Coordinating Officer for this major certain areas of the State of Utah resulting disaster. from flooding during the period of April 18 DEPARTMENT OF HOMELAND The following areas of the State of to July 16, 2011, is of sufficient severity and SECURITY Kansas have been designated as magnitude to warrant a major disaster adversely affected by this major disaster: declaration under the Robert T. Stafford Federal Emergency Management Disaster Relief and Emergency Assistance Agency Barton, Clay, Cloud, Hamilton, Jewell, Act, 42 U.S.C. 5121 et seq. (the ‘‘Stafford Lincoln, Logan, Lyon, Marion, Mitchell, Act’’). Therefore, I declare that such a major [Internal Agency Docket No. FEMA–4010– Morton, Osage, Osborne, Ottawa, disaster exists in the State of Utah. DR; Docket ID FEMA–2011–0001] Pottawatomie, Republic, Riley, Rooks, Rush, In order to provide Federal assistance, you Russell, Sherman, Smith, Stafford, Stanton, are hereby authorized to allocate from funds Kansas; Major Disaster and Related and Washington Counties for Public available for these purposes such amounts as Determinations Assistance. you find necessary for Federal disaster All counties within the State of Kansas are assistance and administrative expenses. AGENCY: Federal Emergency eligible to apply for assistance under the You are authorized to provide Public Management Agency, DHS. Hazard Mitigation Grant Program. Assistance in the designated areas and ACTION: Notice. The following Catalog of Federal Domestic Hazard Mitigation throughout the State. Assistance Numbers (CFDA) are to be used Consistent with the requirement that Federal SUMMARY: This is a notice of the for reporting and drawing funds: 97.030, assistance is supplemental, any Federal Presidential declaration of a major Community Disaster Loans; 97.031, Cora funds provided under the Stafford Act for disaster for the State of Kansas (FEMA– Brown Fund; 97.032, Crisis Counseling; Public Assistance and Hazard Mitigation will 97.033, Disaster Legal Services; 97.034, be limited to 75 percent of the total eligible 4010–DR), dated July 29, 2011, and related determinations. Disaster Unemployment Assistance (DUA); costs. 97.046, Fire Management Assistance Grant; Further, you are authorized to make DATES: Effective Date: July 29, 2011. 97.048, Disaster Housing Assistance to changes to this declaration for the approved FOR FURTHER INFORMATION CONTACT: Individuals and Households In Presidentially assistance to the extent allowable under the Peggy Miller, Office of Response and Declared Disaster Areas; 97.049, Stafford Act. Recovery, Federal Emergency Presidentially Declared Disaster Assistance— The Federal Emergency Management Management Agency, 500 C Street, SW., Disaster Housing Operations for Individuals Agency (FEMA) hereby gives notice that Washington, DC 20472, (202) 646–3886. and Households; 97.050, Presidentially pursuant to the authority vested in the Declared Disaster Assistance to Individuals SUPPLEMENTARY INFORMATION: Notice is and Households—Other Needs; 97.036, Administrator, under Executive Order hereby given that, in a letter dated July Disaster Grants—Public Assistance 12148, as amended, Mark H. Landry, of 29, 2011, the President issued a major (Presidentially Declared Disasters); 97.039, FEMA is appointed to act as the Federal disaster declaration under the authority Hazard Mitigation Grant. Coordinating Officer for this major of the Robert T. Stafford Disaster Relief W. Craig Fugate, disaster. and Emergency Assistance Act, The following areas of the State of 42 U.S.C. 5121 et seq. (the ‘‘Stafford Administrator, Federal Emergency Management Agency. Utah have been designated as adversely Act’’), as follows: affected by this major disaster: [FR Doc. 2011–22184 Filed 8–29–11; 8:45 am] I have determined that the damage in BILLING CODE 9111–23–P Beaver, Box Elder, Cache, Daggett, Duchesne, certain areas of the State of Kansas resulting Emery, Millard, Morgan, Piute, Salt Lake, from severe storms, straight-line winds, Sanpete, Sevier, Summit, Tooele, Uintah, tornadoes, and flooding during the period of Utah, Wasatch, and Weber Counties and the May 19 to June 4, 2011, is of sufficient DEPARTMENT OF HOMELAND Uintah and Ouray Indian Reservation for severity and magnitude to warrant a major SECURITY Public Assistance. disaster declaration under the Robert T. All counties and Indian Tribes within the Stafford Disaster Relief and Emergency Federal Emergency Management State of Utah are eligible to apply for Assistance Act, 42 U.S.C. 5121 et seq. (the Agency assistance under the Hazard Mitigation Grant ‘‘Stafford Act’’). Therefore, I declare that such Program. a major disaster exists in the State of Kansas. [Internal Agency Docket No. FEMA–4013– (The following Catalog of Federal Domestic In order to provide Federal assistance, you DR; Docket ID FEMA–2011–0001] Assistance Numbers (CFDA) are to be used are hereby authorized to allocate from funds for reporting and drawing funds: 97.030, available for these purposes such amounts as Nebraska; Major Disaster and Related Community Disaster Loans; 97.031, Cora you find necessary for Federal disaster Determinations Brown Fund; 97.032, Crisis Counseling; assistance and administrative expenses. 97.033, Disaster Legal Services; 97.034, You are authorized to provide Public AGENCY: Federal Emergency Disaster Unemployment Assistance (DUA); Assistance in the designated areas and Management Agency, DHS. 97.046, Fire Management Assistance Grant; Hazard Mitigation throughout the State. ACTION: Notice. 97.048, Disaster Housing Assistance to Consistent with the requirement that Federal Individuals and Households in Presidentially assistance is supplemental, any Federal SUMMARY: This is a notice of the Declared Disaster Areas; 97.049, funds provided under the Stafford Act for Presidential declaration of a major Presidentially Declared Disaster Assistance— Public Assistance and Hazard Mitigation will disaster for the State of Nebraska Disaster Housing Operations for Individuals be limited to 75 percent of the total eligible and Households; 97.050, Presidentially costs. (FEMA–4013–DR), dated August 12, Declared Disaster Assistance to Individuals Further, you are authorized to make 2011, and related determinations. and Households—Other Needs; 97.036, changes to this declaration for the approved DATES: Effective Date: August 12, 2011.

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FOR FURTHER INFORMATION CONTACT: All counties within the State of Nebraska Stafford Disaster Relief and Emergency Peggy Miller, Office of Response and are eligible to apply for assistance under the Assistance Act, 42 U.S.C. 5121 et seq. (the Recovery, Federal Emergency Hazard Mitigation Grant Program. ‘‘Stafford Act’’). Therefore, I declare that such Management Agency, 500 C Street, SW., The following Catalog of Federal Domestic a major disaster exists in the State of Washington, DC 20472, (202) 646–3886. Assistance Numbers (CFDA) are to be used Nebraska. for reporting and drawing funds: 97.030, In order to provide Federal assistance, you SUPPLEMENTARY INFORMATION: Notice is Community Disaster Loans; 97.031, Cora hereby given that, in a letter dated are hereby authorized to allocate from funds Brown Fund; 97.032, Crisis Counseling; available for these purposes such amounts as August 12, 2011, the President issued a 97.033, Disaster Legal Services; 97.034, you find necessary for Federal disaster major disaster declaration under the Disaster Unemployment Assistance (DUA); authority of the Robert T. Stafford 97.046, Fire Management Assistance Grant; assistance and administrative expenses. Disaster Relief and Emergency 97.048, Disaster Housing Assistance to You are authorized to provide Public Assistance Act, 42 U.S.C. 5121 et seq. Individuals and Households In Presidentially Assistance in the designated areas and Hazard Mitigation throughout the State. (the ‘‘Stafford Act’’), as follows: Declared Disaster Areas; 97.049, Presidentially Declared Disaster Assistance— Consistent with the requirement that Federal I have determined that the damage in Disaster Housing Operations for Individuals assistance is supplemental, any Federal certain areas of the State of Nebraska and Households; 97.050, Presidentially funds provided under the Stafford Act for resulting from flooding during the period of Declared Disaster Assistance to Individuals Public Assistance and Hazard Mitigation will May 24 to August 1, 2011, is of sufficient and Households—Other Needs; 97.036, be limited to 75 percent of the total eligible severity and magnitude to warrant a major Disaster Grants—Public Assistance costs. disaster declaration under the Robert T. (Presidentially Declared Disasters); 97.039, Further, you are authorized to make Stafford Disaster Relief and Emergency Hazard Mitigation Grant. Assistance Act, 42 U.S.C. 5121 et seq. (the changes to this declaration for the approved ‘‘Stafford Act’’). Therefore, I declare that such W. Craig Fugate, assistance to the extent allowable under the a major disaster exists in the State of Administrator, Federal Emergency Stafford Act. Nebraska. Management Agency. The Federal Emergency Management In order to provide Federal assistance, you [FR Doc. 2011–22178 Filed 8–29–11; 8:45 am] are hereby authorized to allocate from funds Agency (FEMA) hereby gives notice that BILLING CODE 9111–23–P available for these purposes such amounts as pursuant to the authority vested in the you find necessary for Federal disaster Administrator, under Executive Order assistance and administrative expenses. 12148, as amended, Michael L. Parker, You are authorized to provide Individual DEPARTMENT OF HOMELAND Assistance and Public Assistance in the SECURITY of FEMA is appointed to act as the designated areas, and Hazard Mitigation Federal Coordinating Officer for this throughout the State. Consistent with the Federal Emergency Management major disaster. Agency requirement that Federal assistance is The following areas of the State of supplemental, any Federal funds provided [Internal Agency Docket No. FEMA–4014– Nebraska have been designated as under the Stafford Act for Public Assistance, DR; Docket ID FEMA–2011–0001] Hazard Mitigation, and Other Needs adversely affected by this major disaster: Assistance will be limited to 75 percent of Nebraska; Major Disaster and Related Buffalo, Chase, Dodge, Furnas, Hamilton, the total eligible costs. Determinations Hayes, Phelps, Polk, Red Willow, and York Further, you are authorized to make Counties for Public Assistance. changes to this declaration for the approved AGENCY: Federal Emergency All counties within the State of Nebraska assistance to the extent allowable under the Management Agency, DHS. Stafford Act. are eligible to apply for assistance under the ACTION: Notice. Hazard Mitigation Grant Program. The time period prescribed for the The following Catalog of Federal Domestic implementation of section 310(a), SUMMARY: This is a notice of the Assistance Numbers (CFDA) are to be used Priority to Certain Applications for Presidential declaration of a major for reporting and drawing funds: 97.030, Public Facility and Public Housing disaster for the State of Nebraska Community Disaster Loans; 97.031, Cora Assistance, 42 U.S.C. 5153, shall be for (FEMA–4014–DR), dated August 12, Brown Fund; 97.032, Crisis Counseling; a period not to exceed six months after 2011, and related determinations. 97.033, Disaster Legal Services; 97.034, the date of this declaration. DATES: Effective Date: August 12, 2011. Disaster Unemployment Assistance (DUA); The Federal Emergency Management FOR FURTHER INFORMATION CONTACT: 97.046, Fire Management Assistance Grant; Agency (FEMA) hereby gives notice that Peggy Miller, Office of Response and 97.048, Disaster Housing Assistance to pursuant to the authority vested in the Recovery, Federal Emergency Individuals and Households In Presidentially Administrator, under Executive Order Management Agency, 500 C Street, SW., Declared Disaster Areas; 97.049, 12148, as amended, Michael L. Parker, Washington, DC 20472, (202) 646–3886. Presidentially Declared Disaster Assistance— of FEMA is appointed to act as the Disaster Housing Operations for Individuals SUPPLEMENTARY INFORMATION: Notice is Federal Coordinating Officer for this and Households; 97.050, Presidentially major disaster. hereby given that, in a letter dated August 12, 2011, the President issued a Declared Disaster Assistance to Individuals The following areas of the State of and Households—Other Needs; 97.036, major disaster declaration under the Nebraska have been designated as Disaster Grants—Public Assistance authority of the Robert T. Stafford adversely affected by this major disaster: (Presidentially Declared Disasters); 97.039, Disaster Relief and Emergency Hazard Mitigation Grant. Boyd, Burt, Cass, Dakota, Dixon, Douglas, Assistance Act, 42 U.S.C. 5121 et seq. Knox, Sarpy, and Washington Counties for Individual Assistance. (the ‘‘Stafford Act’’), as follows: W. Craig Fugate, Nemaha and Richardson Counties for I have determined that the damage in Administrator, Federal Emergency emergency protective measures (Category B) certain areas of the State of Nebraska Management Agency. under the Public Assistance program. resulting from severe storms, tornadoes, [FR Doc. 2011–22173 Filed 8–29–11; 8:45 am] Burt, Cass, Dakota, Douglas, Garden, Knox, straight-line winds, and flooding during the BILLING CODE 9111–23–P Lincoln, Otoe, Sarpy, Scotts Bluff, Thurston, period of June 19–21, 2011, is of sufficient and Washington Counties for Public severity and magnitude to warrant a major Assistance. disaster declaration under the Robert T.

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DEPARTMENT OF HOMELAND www.regulations.gov, including any DEPARTMENT OF HOMELAND SECURITY personal information provided. SECURITY Docket: For access to the docket to Federal Emergency Management U.S. Citizenship and Immigration read documents or comments received Agency Services by the National Advisory Council, go to [Docket ID FEMA–2007–0008] http://www.regulations.gov. Agency Information Collection FOR FURTHER INFORMATION CONTACT: Activities: Form G–639, Revision of a National Advisory Council Currently Approved Information Patricia A. Kalla, Designated Federal Collection; Comment Request AGENCY: Federal Emergency Officer, FEMA, 500 C Street, SW., Room Management Agency, DHS. 832, Washington, DC 20472–3100, ACTION: 30-Day Notice of Information ACTION: Committee management; notice telephone 202–646–3746, fax 202–646– Collection Under Review: Form G–639, of federal advisory committee meeting. 3930, and e-mail mailto:FEMA- Freedom of Information/Privacy Act [email protected]. The NAC website is Request. SUMMARY: The National Advisory located at: http://www.fema.gov/about/ Council (NAC) will meet by nac/. * * * * * teleconference on September 14, 2011 The Department of Homeland for the purpose of discussing the SUPPLEMENTARY INFORMATION: Notice of Security, U.S. Citizenship and Presidential Policy Directive 8 on this meeting is given under the Federal Immigration Services (USCIS) will be National Preparedness. The meeting Advisory Committee Act, 5 U.S.C. App. submitting the following information will be open to the public. (Pub. L. 92–463). collection request to the Office of DATES: The teleconference will take The National Advisory Council (NAC) Management and Budget (OMB) for review and clearance in accordance place Wednesday, September 14, 2011, was established to ensure effective and with the Paperwork Reduction Act of from 3 p.m. E.D.T. to 5 p.m. E.D.T. ongoing coordination of Federal Please note that the meeting may close 1995. The information collection was preparedness, protection, response, previously published in the Federal early if the National Advisory Council recovery, and mitigation for natural has completed its business. Written Register on May 3, 2011, at 76 FR disasters, acts of terrorism, and other comments must be received by 24908, allowing for a 60-day public man-made disasters. The NAC advises September 2, 2011. comment period. USCIS received a the Administrator of the Federal comment for this information collection. ADDRESSES: The meeting will be held by Emergency Management Agency on all The purpose of this notice is to allow teleconference only. Members of the aspects of emergency management. The an additional 30 days for public public who wish to obtain the listen- NAC incorporates State, local and tribal comments. Comments are encouraged only call-in number, access code, and government and private sector input in and will be accepted until September other information for the public 29, 2011. This process is conducted in teleconference may contact Patricia A. the development and revision of the national preparedness goal, the national accordance with 5 CFR 1320.10. Kalla as listed in the FOR FURTHER Written comments and/or suggestions INFORMATION CONTACT section by close of preparedness system, the National Incident Management System, the regarding the item(s) contained in this business on September 13, 2011. For notice, especially regarding the information on services for individuals National Response Plan and other related plans and strategies. estimated public burden and associated with disabilities or to request special response time, should be directed to the assistance, contact Patricia A. Kalla as Agenda: The NAC plans to discuss Department of Homeland Security soon as possible. the March 30, 2011 Presidential Policy (DHS), and to the Office of Management To facilitate public participation, we Directive 8 (PPD–8) on National and Budget (OMB) USCIS Desk Officer. are inviting public comment on the Preparedness. PPD–8 directs the Comments may be submitted to: USCIS, issues to be considered by the Secretary of Homeland Security to Chief, Regulatory Products Division, 20 committee as listed in the develop a national preparedness goal Massachusetts Avenue, Washington, DC SUPPLEMENTARY INFORMATION section. that identifies the core capabilities 20529–2020. Comments may also be Comments must be submitted in writing necessary for preparedness and a submitted to DHS via facsimile to 202– no later than September 2, 2011 and national preparedness system to guide 272–0997 or via e-mail at must be identified by Docket ID FEMA– activities that will enable the Nation to [email protected], and to the 2007–0008 and may be submitted by achieve the goal. The NAC plans to OMB USCIS Desk Officer via facsimile one of the following methods: finalize recommendations on the at 202–395–5806 or via e-mail at Federal Rulemaking Portal: http:// [email protected]. When www.regulations.gov. Follow the development of the preparedness goal and incorporation of these submitting comments by e-mail please instructions for submitting comments. make sure to add OMB Control Number recommendations into the preparedness E-mail: [email protected]. 1615–0102 in the subject box. Written goal. The draft national preparedness Include Docket ID FEMA–2007–0008 in comments and suggestions from the the subject line of the message. goal has been posted to Docket ID public and affected agencies should Fax: (703) 483–2999. FEMA–2007–0008. address one or more of the following Mail: FEMA, Office of Chief Counsel, W. Craig Fugate, four points: 500 C Street, SW., Room 840, (1) Evaluate whether the proposed Administrator, Federal Emergency Washington, DC 20472–3100. Management Agency. collection of information is necessary Instructions: All submissions received for the proper performance of the [FR Doc. 2011–22039 Filed 8–29–11; 8:45 am] must include the words ‘‘Federal functions of the agency, including Emergency Management Agency’’ and BILLING CODE 9111–48–P whether the information will have the Docket ID FEMA–2007–0008 for this practical utility; action. Comments received will be (2) Evaluate the accuracy of the posted without alteration at http:// agencies estimate of the burden of the

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proposed collection of information, DEPARTMENT OF HOMELAND (1) Type of Information Collection: including the validity of the SECURITY Extension of a currently approved methodology and assumptions used; information collection. U.S. Immigration and Customs (2) Title of the Form/Collection: (3) Enhance the quality, utility, and Enforcement Electronic Bonds Online (eBonds) clarity of the information to be Access. collected; and Agency Information Collection (3) Agency form number, if any, and (4) Minimize the burden of the Activities: Extension of an Information the applicable component of the collection of information on those who Collection; Comment Request Department of Homeland Security are to respond, including through the sponsoring the collection: ICE Form I– ACTION: use of appropriate automated, 60-Day Notice of Information 352SA (Surety eBonds Access Collection for Review; Electronic Bonds electronic, mechanical, or other Application and Agreement); ICE Form Online (eBonds) Access; OMB Control technological collection techniques or I–352RA (eBonds Rules of Behavior No. 1653–0046. other forms of information technology, Agreement); U.S. Immigration and e.g., permitting electronic submission of The Department of Homeland Customs Enforcement. responses. Security, U.S. Immigration and Customs (4) Affected public who will be asked Enforcement (ICE), will be submitting or required to respond, as well as a brief Overview of this information abstract: Primary: Individual or collection: the following information collection request for review and clearance in Households, Business or other non- (1) Type of Information Collection: accordance with the Paperwork profit. The information taken in this Revision of a currently approved Reduction Act of 1995. The information collection is necessary for ICE to grant information collection. collection is published to obtain access to eBonds and to notify the (2) Title of the Form/Collection: comments from the public and affected public of the duties and responsibilities Freedom of Information/Privacy Act agencies. Comments are encouraged and associated with accessing eBonds. The Request. will be accepted for sixty days until I–352SA and the I–352RA are the two October 31, 2011. instruments used to collect the (3) Agency form number, if any, and information associated with this the applicable component of the Written comments and suggestions regarding items contained in this notice, collection. The I–352SA is to be Department of Homeland Security and especially with regard to the completed by a Surety that currently sponsoring the collection: Form G–639; estimated public burden and associated holds a Certificate of Authority to act as U.S. Citizenship and Immigration response time, should be directed to the a Surety on Federal bonds and details Services (USCIS). Office of the Chief Financial Officer/ the requirements for accessing eBonds (4) Affected public who will be asked OAA/Records Branch, U.S. Immigration as well as the documentation, in or required to respond, as well as a brief and Customs Enforcement, 500 12th addition to the I–352SA and I–352RA, abstract: Primary: Individuals or Street, SW., Stop 5705 Washington, DC which the Surety must submit prior to Households. Form G–639 is provided as 20536–5705. being granted access to eBonds. The I– a convenient means for persons to Comments are encouraged and will be 352RA provides notification that eBonds is a Federal government provide data necessary for identification accepted for sixty days until October 31, computer system and as such users of a particular record desired under 2011. Written comments and must abide by certain conduct FOIA/PA. suggestions from the public and affected agencies concerning the proposed guidelines to access eBonds and the (5) An estimate of the total number of collection of information should address consequences if such guidelines are not respondents and the amount of time one or more of the following four points: followed. estimated for an average respondent to (1) Evaluate whether the proposed (5) An estimate of the total number of respond: 100,000 responses at .25 hours collection of information is necessary respondents and the amount of time (15 minutes) per response. for the proper performance of the estimated for an average respondent to (6) An estimate of the total public functions of the agency, including respond: 100 responses at 30 minutes (.50 hours) per response. burden (in hours) associated with the whether the information will have (6) An estimate of the total public practical utility; collection: 25,000 annual burden hours. burden (in hours) associated with the (2) Evaluate the accuracy of the If you need a copy of the information collection: 50 annual burden hours. agency’s estimate of the burden of the collection instrument, please visit the Comments and/or questions; requests proposed collection of information, Web site at: http://www.regulations.gov. for a copy of the proposed information including the validity of the collection instrument, with instructions; We may also be contacted at: USCIS, methodology and assumptions used; or inquiries for additional information Regulatory Products Division, 20 (3) Enhance the quality, utility, and should be directed to: Office of the Chief Massachusetts Avenue, NW., clarity of the information to be Financial Officer/OAA/Records Branch, Washington, DC 20529–2020; collected; and U.S. Immigration and Customs Telephone 202–272–8377. (4) Minimize the burden of the Enforcement, 500 12th Street, SW., collection of information on those who Dated: August 24, 2011. STOP 5705, Washington, DC 20536– are to respond, including through the Sunday Aigbe, 5705. use of appropriate automated, Chief, Regulatory Products Division, Office electronic, mechanical, or other John Ramsay, of the Executive Secretariat, U.S. Citizenship technological collection techniques or Forms Program Manager, Office of Asset and Immigration Services, Department of other forms of information technology, Administration, U.S. Immigration and Homeland Security. e.g., permitting electronic submission of Customs Enforcement, Department of [FR Doc. 2011–22063 Filed 8–29–11; 8:45 am] responses. Homeland Security. BILLING CODE 9111–97–P Overview of this information [FR Doc. 2011–22106 Filed 8–29–11; 8:45 am] collection: BILLING CODE 9111–28–P

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DEPARTMENT OF HOUSING AND redelegation of authority being DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT published by separate notice in today’s URBAN DEVELOPMENT Federal Register. Further, while the [Docket No. FR–5538–D–01] [Docket No. FR–5538–D–03] Secretary has delegated its authority to Consolidated Delegation of Authority the GNMA President, the Secretary Consolidated Redelegation of to the President of the Government retains authority under 12 U.S.C. 1723. Authority for the Government National National Mortgage Association Mortgage Association Section A. Consolidation of Authority AGENCY: Office of the Secretary, HUD. Delegated AGENCY: Government National Mortgage ACTION: Notice of Delegation of Association, HUD. The Secretary hereby consolidates the Authority. ACTION: Notice of Delegation of following delegations to the President of Authority. SUMMARY: This notice is issued to GNMA: consolidate the authorities delegated to 1. All powers and duties of GNMA, SUMMARY: In this notice, the President of the President of the Government which are by law vested in the GNMA retains authority and redelegates National Mortgage Association (GNMA) Secretary, except as otherwise provided authority granted to the Government from the Secretary; and to provide in the GNMA bylaws (12 U.S.C. 1723 National Mortgage Association (GNMA) context and clarity for the President of and 24 CFR part 310, § 1.02); to the Executive Vice President and GNMA’s redelegation of authority being other subordinate employees. 2. All authority of the Secretary with published by separate notice in today’s DATES: Effective Date: August 19, 2011. Federal Register. respect to the management of GNMA and GNMA programs pursuant to Title FOR FURTHER INFORMATION CONTACT: DATES: Effective Date: August 19, 2011. III of the National Housing Act, 12 Gregory A. Keith, Senior Vice President, FOR FURTHER INFORMATION CONTACT: U.S.C. 1723 (68 FR 41840); Chief Risk Officer, Government National Gregory A. Keith, Senior Vice President, Mortgage Association, Department of Government National Mortgage 3. The power to waive HUD Housing and Urban Development, Association, Department of Housing and regulations; Section 7(q), Department of Potomac Center South, 550 12th Street, Urban Development, Chief Risk Officer, Housing and Urban Development (42 SW., 3rd Floor, Washington, DC 20024, Potomac Center South, 550 12th Street, U.S.C. 3535(q) and 73 FR 76674); telephone number 202–475–4918. (This SW., 3rd Floor, Washington, DC 20024, 4. The power to impose suspensions is not a toll-free number). Persons with telephone number 202–475–4918 (this and debarments, with the concurrence hearing- or speech-impairments may is not a toll-free number). This number of the General Counsel; Section 7(d), access this number though TTY by may be accessed through TTY by calling Department of Housing and Urban calling the toll-free Federal Relay the toll-free Federal Relay Service at Development Act (42 U.S.C. 3535(d); 54 Service at 1–800–877–8339. 800–877–8339. FR 4913 and 63 FR 57133); and SUPPLEMENTARY INFORMATION: By SUPPLEMENTARY INFORMATION: GNMA is separate notice published in the Federal 5. Authority to authenticate a wholly owned Government Register, the Secretary issued a documents and affix the seal of HUD to Corporation within the U.S. Department consolidated delegation of authority to of Housing and Urban Development. documents (68 FR 41840). the President of GNMA. In that notice, GNMA’s organic statute vests all the Section B. Authority To Redelegate the GNMA President was given powers and duties of GNMA in the authority to redelegate the authorities Secretary of HUD. (12 U.S.C. 1723.) The GNMA President may redelegate delegated to the President by the In GNMA’s bylaws, the Secretary has the authorities delegated by the Secretary.1 delegated all of the powers and duties Secretary, with the exception of the Part I of this notice contains of GNMA that were vested in the authority to waive HUD regulations. The concurrent redelegations from the Secretary to GNMA. In various Federal GNMA President’s authority to waive GNMA President to the GNMA Register notices, the Secretary has HUD regulations cannot be redelegated Executive Vice President and delegated authority over GNMA to the by the GNMA President. This authority redelegations from the Executive Vice GNMA President. Specifically, the is reserved for the GNMA President President to Senior Vice Presidents.2 Secretary has delegated: (1) All of the pursuant to the Department of Housing Part II of this notice contains Secretary’s authority with respect to and Urban Development Act (42 U.S.C. redelegations from the Senior Vice managing GNMA and GNMA’s 3535(q)). If the President is absent from Presidents to subordinate staff. Part III programs pursuant to Title III of the office, the person authorized to act in of this notice discusses the ability of National Housing Act (12 U.S.C. 1723 the President’s absence may exercise the GNMA Senior Vice Presidents to and 68 FR 41840); (2) authority to waive waiver authority of the President regulations issued by the U.S. 1 By regulations enacted in 2010 the Secretary Department of Housing and Urban consistent with HUD’s policies and adopted GNMA Bylaws, which were last published, Development (73 FR 76674); (3) procedures (73 FR 76674 and 66 FR in their entirety, in the Code of Federal Regulations 13944). in 1995. See 24 CFR § 310.1(2010); See also 24 CFR authority to impose suspensions and part 310 (1995). The GNMA Bylaws separately debarments, with the concurrence of the Dated: August 19, 2011. provide GNMA’s President with other significant General Counsel or his or her designee Shaun Donovan, authority. Id. These delegations do not supersede or (54 FR 4913 and 63 FR 57133); and (4) rescind the authority contained in the Bylaws. Secretary. 2 the power to affix HUD’s seal and The GNMA Bylaws authorize GNMA Vice [FR Doc. 2011–22174 Filed 8–29–11; 8:45 am] Presidents to sign all contracts, mortgages, pledges, authenticate documents (68 FR 41840). other documents, instruments and other writings This notice does not supersede BILLING CODE 4219–67–P that call for GNMA’s execution in the conducting previous delegations of authority, but of GNMA’s business. See 24 CFR part 310 § 3.02. The authority redelegated to the Senior Vice consolidates the functions that the Presidents by the Executive Vice President does not Secretary has delegated to the President supersede or rescind the authority contained in the of GNMA, and relates to GNMA’s Bylaws.

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redelegate the authority redelegated to i. To extend the timeframe for issuers b. To approve a refund to the issuer them from the Executive Vice President to resolve field review findings. for an overpayment of fees for and certain non-delegable duties of the j. To approve exceptions to program commitment authority, pool transfers Executive Vice President. Part IV of this pooling and pool administration and guaranty fees. notice discusses the delegations requirements. c. To reassign mortgages not a part of superseded by this redelegation. k. To approve document custodian a defaulted issuer’s portfolio and were exceptions. assigned to GNMA in error. I. Authority Redelegated l. To approve a request to extend the d. To authorize the early termination Section A. GNMA President Retains and maturity date of a construction loan of a GNMA pool. Redelegates Concurrent Authority to the pool. e. To authorize reimbursement to Executive Vice President m. To approve and execute the GNMA’s Central Paying Agent for the Miscellaneous Disbursement Vouchers. funds that it forwarded to issuers to The President of GNMA hereby n. To approve an issuer’s request to cover the interest that was forgiven retains and redelegates to the GNMA issue a Project Loan Certificate that under the Soldiers and Sailors Credit Executive Vice President concurrent contains two different interest rates Relief Act. authority with the President. The applicable to different portions of the f. To issue pool numbers. Executive Vice President is authorized same underlying mortgage collateral. 5. The Senior Vice President/Chief to perform all duties of the GNMA o. To correct mortgage assignments, Risk Officer is hereby delegated the President in place of the President. The promissory notes or other documents following authority: Executive Vice President is also which erroneously transfer the loans a. To approve a request for special authorized to perform the functions contained in a defaulted portfolio to servicing reviews to be conducted. delegated by the Secretary to the GNMA GNMA. b. To approve an issuer’s non- President, except the authority to waive p. To execute Limited Powers of streamlined commitment authority HUD regulations when the President is Attorneys. request. not absent from office, as that term is q. To collect claims, compromise c. To determine the remedy for an defined in 66 FR 13944; and 73 FR claims and write-off debts. issuer’s failure to timely file its annual 76674. r. To make determinations on audited financial statement. Section B. GNMA Executive Vice litigation matters, legal fees, etc. for d. To approve an issuer’s request to President Retains and Redelegates loans contained in defaulted issuer’s exceptions on Letters of Credit Authority to the Senior Vice Presidents portfolios. requirements. 2. The Senior Vice President of the e. To approve an issuer’s request to The Executive Vice President of Office of Capital Markets is hereby transfer its issuer responsibilities. GNMA hereby retains and redelegates to delegated to handle matters related to f. To approve an issuer’s request to the Senior Vice Presidents the authority the Multiclass Securities Program. extend its approvals to other programs. to approve or deny staff requests for 3. The Senior Vice President of the g. To approve pledge of servicing travel; and the authority to approve Office of Finance is hereby delegated to requests and execute Acknowledgement staff’s request for the reimbursement of handle finance matters related to Agreements. approved travel. Additionally, the GNMA, which includes but is not Senior Vice Presidents are authorized to II. Authority Redelegated to Other limited to, the authority: Positions Within GNMA perform the below enumerated a. To certify on HUD Forms 718/720 functions. that funds are available for Section A 1. The Senior Vice President of the commitments of contracts. The Senior Vice President of the Office of Mortgage-Backed Securities is b. To execute Secure Payment Office of Mortgage-Backed Securities hereby delegated to handle matters System-Financial Management Services hereby retains and redelegates the related to the Mortgage-Backed 210CO designating individuals as following duties to directors, assistant Securities Program, which includes but certifying officers. vice presidents and other staff members. is not limited to, the authority: c. To certify vouchers for payments. a. To approve new issuer applicants. d. To sign checks drawn on the 1. Directors b. To notify an issuer of its high United States Treasury. a. To extend the timeframe for issuers delinquency levels. e. To designate, delegate and revoke to resolve field review findings. c. To approve streamlined authority of specifically designated staff b. To notify an issuer of its high commitment authority request. members to use the U.S. Treasury’s delinquency levels. d. To issue termination letters to Secure Payment System. c. To approve streamlined issuers that have no GNMA portfolio f. To designate specific staff members commitment authority request. and requested a voluntary termination to serve as data entry operators for d. To approve document custodian from the GNMA program. purposes of creating and modifying exception issues. e. To issue a 30-day Notice of Intent Secure Payment System request and e. To approve a request to extend the to Default to GNMA issuers. transmitting to the certifying officer for maturity date of a construction loan f. To execute cross default agreements payments. pool. provided by related issuers. 4. The Senior Vice President of Office f. To approve and execute g. To accept a corporate guaranty and of Program Operations is hereby Miscellaneous Disbursement Vouchers. legal opinion when related issuers are delegated to handle matters related to g. To approve exceptions to program precluded from executing a cross GNMA Program Operations, which pooling and pool administration default agreement by their regulators. includes but is not limited to, the requirements. h. To accept a corporate guaranty authority: h. To correct mortgage assignments, from issuers in instances where GNMA, a. To approve any enhancements to promissory notes or other documents in its discretion, deems that a corporate GNMA’s business applications used to which erroneously transfer loans guaranty is necessary and has notified administer the GNMA mortgage-backed contained in a defaulted portfolio to the issuer accordingly. securities program. GNMA.

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2. Assistant Vice Presidents and Section D Dated: August 19, 2011. Directors Theodore W. Tozer, The Senior Vice President of Office of a. To collect claims, compromise President, Government National Mortgage Program Operations retains and Association. claims and write-off debts. redelegates the following authority to [FR Doc. 2011–22177 Filed 8–29–11; 8:45 am] b. To make determinations on directors and staff: litigation matters, legal fees, etc. for BILLING CODE 4210–67–P loans contained in defaulted issuers’ 1. Directors portfolios. a. To reassign mortgages not a part of DEPARTMENT OF HOUSING AND c. To execute Limited Powers of a defaulted issuer’s portfolio and were URBAN DEVELOPMENT Attorneys. assigned to GNMA in error. 3. Staff. To approve an issuer’s [Docket No. FR–5519–D–01] b. To authorize the early termination request to issue a Project Loan of GNMA pools. Delegation Authority for the Office of Certificate that contains two different Sustainable Housing and Communities interest rates applicable to different c. To authorize reimbursement to portions of the same underlying GNMA’s Central Paying Agent for the AGENCY: Office of the Secretary, HUD. mortgage collateral. funds that it forwarded to issuers to ACTION: Notice of delegation of cover the interest that was forgiven authority. Section B under the Soldiers and Sailors Credit The Senior Vice President of the Relief Act. SUMMARY: In this notice, the Secretary of HUD delegates concurrent authority to Office of Capital Markets retains and 2. Staff redelegates the following duties to the the Director and Deputy Director, Office directors and securities market To issue pool numbers. of Sustainable Housing and specialists: Communities (OSHC), relating to III. Authority to Redelegate improving regional planning efforts that 1. Directors integrate housing and transportation Certain authority redelegated by the a. To sign all contracts and other decisions, and increase the capacity to President of GNMA to the Executive documents, instruments and writings improve land use and zoning. Vice President in this notice is non- that call for execution by GNMA in DATES: delegable. The non-delegable authorities Effective Date: August 19, 2011. order to affix the GNMA guaranty on a include, but are not limited to, (1) FOR FURTHER INFORMATION CONTACT: multiclass securities transaction, Authority to issue All Participants Stephen A. Cerny, Attorney-Advisor, including the Sponsor Agreement in the Memoranda; (2) Authority to approve Office of Sustainable Housing and form specified in the Multiclass the reservation of funds request; (3) Communities, Department of Housing Securities Guide. Authority to approve the request for and Urban Development, 451 7th Street, b. To execute the Real Estate Mortgage contract services for all contract work; SW., Room 10180, Washington, DC Investment Conduit Guaranty (4) Authority to issue a letter of 20410, Telephone number, 202–402– Agreement in the form specified in the involuntary extinguishment to a GNMA 5097. (This is not a toll-free number.) Multiclass Securities Guide. issuer; and (5) Authority to initiate and Persons with hearing- or speech- impose a civil money penalty. impairments may access this number 2. Directors or Securities Market through TTY by calling the toll-free Specialists Certain authority redelegated by the Federal Relay Service at 1–800–877– Executive Vice President to certain 8339. To execute the Transaction Initiation Senior Vice Presidents in this notice is Letter in the form specified by the non-delegable. Duties that are delegable SUPPLEMENTARY INFORMATION: OSHC Multiclass Securities Guide. have been redelegated by the Senior provides grants to improve regional and Section C Vice Presidents in Part II Sections A–D local planning efforts that integrate above. Duties that are non-delegable are housing and transportation decisions, The Senior Vice President of the retained by the Senior Vice Presidents. and increase the capacity to improve Office of Finance retains and redelegates land use and zoning to support market the following authority to the directors IV. Authority Superseded investments that support sustainable and specifically designated staff communities. OSHC is also charged This redelegation of authority members: with working within HUD to support supersedes all previous delegations of program leadership and staff as they 1. Directors authority from the GNMA President to align their programs with the the Executive Vice President and from a. To certify that funds are available sustainability principles. OSHC the Executive Vice President to the for commitments of contracts on HUD represents HUD on the Sustainable Senior Vice Presidents. This Forms 718/720, Reservation of Funds— Communities Partnership that is redelegation also supersedes all Procurement Funds Commitment. working with the United States previous delegations from GNMA b. To certify vouchers for payment. Department of Transportation and the Senior Vice Presidents to subordinate United States Environmental Protection 2. Specifically Designated Staff staff. Members Agency to align federal resources, The GNMA President, Executive Vice reinforce local and regional a. To sign checks drawn on the United President and Senior Vice Presidents development strategies to support States Treasury. may revoke the authority authorized economic growth, and reduce b. To serve as data entry operators for herein, in whole or part, at any time. bureaucratic barriers so that purposes of creating and modifying Authority: Section 7(d), Department of communities can meet the demand for Secure Payment System request and Housing and Urban Development Act (42 more sustainable communities. OSHC is transmitting to the certifying officer for U.S.C. 3535(d)); GNMA Bylaws, 24 CFR part also responsible for coordinating HUD’s payments. 310. initiatives to expand energy efficiency

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and renewable energy in affordable FOR FURTHER INFORMATION CONTACT: Jean g. The Doctoral Dissertation Research housing, through financing, technical Lin Pao, General Deputy Assistant Grant Program, as provided for in assistance and industry partnerships. Secretary, Office of Policy Development annual HUD appropriations acts (e.g., HUD’s sustainable housing strategy and Research, Department of Housing Pub. L. 111–117, 123 Stat. 3034, utilizes market-based approaches and and Urban Development, 451 7th Street, approved December 16, 2009); and leverages the Department’s existing SW., Room 8228, Washington, DC i. The Emergency Homeowners’ Loan authority to support private sector 20410–6000, telephone number 202– Program within the Emergency investment and consumer choice. There 708–1600. (This is not a toll-free Homeowners’ Relief Act, as amended are no previous delegations of authority number.) Persons with hearing or (12 U.S.C. 2701 et seq.), in cooperation for OSHC. speech impairments may access this with HUD’s Office of Housing and number through TTY by calling the toll- Office of the Chief Financial Officer. Section A. Authority Delegated free Federal Relay Service at 1–800– 3. Execute concurrent authority to The Secretary hereby delegates to the 877–8339. carry out the duties and responsibilities Director and Deputy Director, OSHC, SUPPLEMENTARY INFORMATION: authorized to the Secretary of HUD by concurrent authority and responsibility Section 42(d)(5)(C) of the Internal Section A. Authority Delegated pursuant to the Consolidated Revenue Code. Appropriations Act, 2010 (Pub. L. 111– The Secretary hereby delegates to the 117, 123 Stat. 3034, at 3084, approved, Assistant Secretary for Policy Section B. Authority Excepted Dec. 16, 2009) relating to improving Development and Research authority The authority delegated in this regional planning efforts that integrate and responsibility over the document does not include the housing and transportation decisions, Department’s research agenda, authority to sue or be sued. and increase the capacity to improve including the authority to issue and Section C. Authority To Redelegate land use and zoning. The Secretary may waive regulations. In carrying out these revoke the authority authorized herein, responsibilities, the Assistant Secretary The Assistant Secretary for Policy in whole or part, at any time. for Policy Development and Research Development and Research is shall, among other duties: authorized to redelegate to employees of Section B. Authority Excepted 1. Undertake programs of research, HUD any of the authority delegated The authority delegated in this study, testing, and demonstration under Section A, except for the document does not include the relating to the mission and programs of authority to issue and waive regulations. authority to sue or be sued or to issue the Department under Title V of the Section D. Authority Superseded or waive regulations. Housing and Urban Development Act of 1970 (12 U.S.C. 1701z–1). This delegation supersedes all Section C. Authority to Redelegate 2. Administer programs related to previous delegations of authority from The authority delegated in this policy development and research as the Secretary to the Assistant Secretary document may be redelegated. assigned by the Secretary, including the for Policy Development and Research. following programs: Section D. Authority Superseded Authority: Section 7(d), Department of a. The Community Development Housing and Urban Development Act (42 There are no previous delegations of Work Study Program, under section U.S.C. 3535(d)). authority. 107(c) of Title I of the Housing and Dated: August 19, 2011. Community Development Act of 1974 Authority: Section 7(d) of the Department Shaun Donovan, of Housing and Urban Development Act (42 (42 U.S.C. 5307(c)); Secretary. U.S.C. 3535(d). b. The Community Outreach Partnership Center Program, within the [FR Doc. 2011–22172 Filed 8–29–11; 8:45 am] Dated: August 19, 2011. Community Outreach Partnership Act of BILLING CODE 4210–67–P Shaun Donovan, 1992 (42 U.S.C. 5307 note), and section Secretary. 107 of the Housing Development Act of [FR Doc. 2011–22192 Filed 8–29–11; 8:45 am] 1974 (42 U.S.C. 5307(b)(3)); DEPARTMENT OF HOUSING AND BILLING CODE 4210–67–P c. The Historically Black Colleges and URBAN DEVELOPMENT Universities Program, under section [Docket No. FR–5560–D–01] 107(b)(3) of the Housing and DEPARTMENT OF HOUSING AND Community Development Act of 1974 Delegation of Authority for the Center URBAN DEVELOPMENT (42 U.S.C. 5307(b)(3)); for Faith-Based and Neighborhood [Docket No. FR–5517–D–01] d. The Hispanic-Serving Institutions Partnerships Assisting Communities Program, as Delegation of Authority for the Office provided for in annual HUD AGENCY: Office of the Secretary, HUD. of Policy Development and Research appropriations acts (e.g., Pub. L. 111– ACTION: Notice of delegation of 117, 123 Stat. 3034, approved December authority. AGENCY: Office of the Secretary, HUD. 16, 2009); ACTION: Notice of delegation of e. The Alaska Native/Native Hawaiian SUMMARY: Through this notice, the authority. Institutions Assisting Communities Secretary delegates to the Director, program as provided for in annual HUD Center for Faith-Based and SUMMARY: In this notice, the Secretary of appropriations acts (e.g., Pub. L. 111– Neighborhood Partnerships, authority HUD delegates authority to the Assistant 117, 123 Stat. 3034, approved December and responsibility for the direction of Secretary for Policy Development and 16, 2009); HUD’s faith-based initiatives Research and supersedes any prior f. The Tribal Colleges and Universities specifically relating to coordination delegation of authority from the program, as provided for in annual with secular and faith-based nonprofit Secretary to the Assistant Secretary for appropriations acts (e.g., Pub. L. 111– organizations seeking to partner with Policy Development and Research. 117, 123 Stat. 3034, approved December HUD, the provision of resources to those DATES: Effective Date: August 19, 2011. 16, 2009); organizations, and the establishment of

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relationships between HUD and outside Dated: August 19, 2011. oversee the development, partners, practitioners, and Shaun Donovan, administration, and coordination of the organizations from the nonprofit and Secretary. financial and accounting functions of faith communities to more effectively [FR Doc. 2011–22187 Filed 8–29–11; 8:45 am] the Department; and to issue such identify and meet the needs of some of BILLING CODE 4210–67–P policies and directives as may be the Nation’s most vulnerable citizens. necessary to carry out the duties of the Chief Financial Officer; DATES: Effective Date: August 19, 2011. DEPARTMENT OF HOUSING AND 3. To develop and maintain a FOR FURTHER INFORMATION CONTACT: URBAN DEVELOPMENT financial management system for the Department (including accounting and Paula A. Lincoln, Acting Director, [Docket No. FR–5539–D–01] Center for Faith-Based and related transaction systems; internal control systems; financial reporting Neighborhood Partnerships, Department Delegation Authority for the Office of systems; and credit, cash and debt of Housing and Urban Development, the Chief Financial Officer management systems). To coordinate 451 7th Street, SW., Room 10184, AGENCY: Office of the Secretary, HUD. systems for audit compliance with Washington, DC 20410, telephone external organizations that have number 202–708–2404. (This is not a ACTION: Notice of delegation of authority. responsibilities for the use and toll-free number.) Persons with hearing management of funds and other or speech impairments may access this SUMMARY: In this notice, the Secretary of resources for which the Department has number through TTY by calling the toll- HUD, pursuant to the Chief Financial responsibility; free Federal Relay Service at 1–800– Officers Act of 1990 (CFO Act), which 4. To provide direction to ensure the 877–8339. established the position of the Chief Department’s compliance with Office of Management and Budget (OMB), SUPPLEMENTARY INFORMATION: Financial Officer within HUD, is delegating authority to the Chief Government Accountability Office Section A. Authority Delegated Financial Officer for certain (GAO), Department of the Treasury responsibilities with respect to the (Treasury), and legislative accounting The Secretary hereby delegates to the financial management activities, and financial management Director, Center for Faith-Based and systems, and operations of the requirements; and to strengthen internal Neighborhood Partnerships, the Department. accounting and administrative controls authority and responsibility for the to prevent waste, fraud, and abuse in DATES: Effective Date: August 19, 2011. direction of HUD’s faith-based Federal programs; initiatives, specifically relating to FOR FURTHER INFORMATION CONTACT: 5. To assist in the financial execution coordination with secular and faith- Laura Moore-Rush, Acting Deputy of the Department’s budget in relation to based nonprofit organizations seeking to Director, Office of the Chief Financial actual expenditures and to prepare partner with HUD, the provision of Officer Management Staff, Office of the timely performance reports for senior resources to those organizations, and the Chief Financial Officer, Department of managers; establishment of relationships between Housing and Urban Development, 451 6. To develop, maintain, and revise an HUD and outside partners, practitioners, Seventh Street, SW., Room 3120, annual plan to bring the financial and organizations from the nonprofit Washington, DC 20410, telephone management systems of the Department and faith communities to more number 202–402–3638 (this is not a toll- into full compliance with established effectively identify and meet the needs free number). Persons with hearing or policies and standards and to oversee of some of the Nation’s most vulnerable speech impairments may access this execution of the plan; and to estimate citizens. number through TTY by calling the resource requirements for the Office of Federal Relay Service at 800–877–8339. the Chief Financial Officer for inclusion Section B. Authority Excepted SUPPLEMENTARY INFORMATION: The in the Department’s budget requests; Secretary is delegating to the Chief 7. To coordinate with the Inspector The authority delegated in this Financial Officer those responsibilities General to ensure that all Department document does not include the enumerated in the CFO Act (31 U.S.C. financial activities are regularly audited, authority to sue or be sued or to issue 901 et seq.), and HUD’s Fiscal Year (FY) and to ensure that adopted or waive regulations. 2003 Appropriations Act (Pub. L. 108– recommendations related to Department Section C. Authority to Redelegate 7, approved February 20, 2003), relating financial management issues are to the financial management activities promptly implemented; The Secretary authorizes the Director, related to the programs and operation of 8. To be responsible for the financial Center for Faith-Based and HUD. management needs of the Department, Neighborhood Partnerships, to Accordingly, the Secretary delegates to report to the Congress and to external redelegate the authority described in as follows: agencies such as OMB, the Treasury and Section A. the GAO on financial management Section A. Authority Delegated performance, Department financial Section D. Authority Superseded The Secretary hereby delegates the statements, and other information following responsibilities, functions, requests required by law and regulation, This delegation supersedes all prior and duties to the Chief Financial and to develop and maintain a delegations of authority to the Center for Officer: departmental financial management Faith-based and Neighborhood 1. To serve as the principal advisor to information system; Partnerships. The Secretary may revoke the Secretary on financial management; 9. To provide policy direction and the authority authorized herein, in 2. To supervise, coordinate, and guidance to the designated Comptrollers whole or part, at any time. establish policies to govern all financial of principal Department organizational Authority: Section 7(d) of the Department management activities and operations of components, including the Federal of Housing and Urban Development Act (42 the Department consistent with the Housing Administration (FHA), and U.S.C. 3535(d)). requirements of law and regulation; to Government National Mortgage

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Association (GNMA), as well as other Authority: Section 7(d) of the Department redesignate contracting officers by departmental staff, with respect to of Housing and Urban Development Act (42 individuals holding the named financial management policies, U.S.C. 3535(d)). positions. The CPO is the sole official standards, and responsibilities; Dated: August 19, 2011. authorized to appoint contracting 10. To process and sign Shaun Donovan, officers within the Department. Apportionments/Reapportionments Secretary. Section C. Authority Superseded Schedules and Advice of Allotments in [FR Doc. 2011–22183 Filed 8–29–11; 8:45 am] accordance with applicable OMB This designation supersedes all BILLING CODE 4210–67–P Circulars; previous designations from the CPO 11. Where not inconsistent with concerning specified procurement regulations pertaining to proceedings DEPARTMENT OF HOUSING AND positions as contracting officers. before administrative judges, to URBAN DEVELOPMENT Authority: 41 U.S.C. 414; Section 7(d) of establish and maintain policies and the Department of Housing and Urban procedures for claims collection and [Docket No. FR–5561–D–03] Development Act (42 U.S.C. 3535(d)). coordinate claims collection activities in Designation by the Chief Procurement Dated: August 19, 2011. the field offices and at Headquarters; Jemine A. Bryon, 12. To appoint Disbursement and Officer of Contracting Officers Chief Procurement Officer. Certifying Officers to approve the AGENCY: Office of the Chief Procurement [FR Doc. 2011–22190 Filed 8–29–11; 8:45 am] disbursal of agency funds; Officer, HUD. 13. To serve as advisor to the BILLING CODE 4210–67–P ACTION: Notice of designation. Secretary and to other departmental officials in matters relating to budget SUMMARY: In this notice, the Chief DEPARTMENT OF HOUSING AND formulation and execution, and to Procurement Officer (CPO) designates URBAN DEVELOPMENT advise and assist program offices in specified procurement positions as their budgetary responsibilities and contracting officers. [Docket No. FR–5561–D–01] appraise the effectiveness of these DATES: Effective Date: August 19, 2011. activities; advise on budget and fiscal Designation of Chief Acquisition FOR FURTHER INFORMATION CONTACT: Elie implications of policy and legislative Officer and Senior Procurement F. Stowe, Assistant Chief Procurement proposals; and administer the issuance Executive and Delegation of Officer for Policy and Systems, Office of of staff ceilings and monitor staff usage Procurement Authority the Chief Procurement Officer, in the Department; Department of Housing and Urban AGENCY: Office of the Secretary, HUD. 14. To continue to ensure that HUD Development, 451 7th Street, SW., ACTION: Notice of designation of Chief offices have an adequate system of Room 5276, Washington, DC 20410– Acquisition Officer and Senior funds control, including working with 3000, telephone number 202–708–0294 Procurement Executive and delegation such offices to strengthen such controls (this is not a toll-free number). Persons of procurement authority. to prevent or mitigate any potential with hearing or speech impairments Anti-deficiency Act (31 U.S.C. 1341 et SUMMARY: may access this number through TTY by In this notice, the Secretary of seq.) violations; and HUD designates the Deputy Secretary as 15. To implement and administer the calling the toll-free Federal Relay Service at 800–877–8339. the Chief Acquisition Officer, the Chief Emergency Homeowners’ Loan Program Procurement Officer as the Senior within the Emergency Homeowners’ SUPPLEMENTARY INFORMATION: This Procurement Executive, and delegates Relief Act, as amended (12 U.S.C. 2701 notice includes the designation of the all procurement authority to the Chief et seq.), in cooperation with HUD’s Deputy Chief Procurement Officer, the Procurement Officer. Assistant Chief Procurement Officer for Office of Policy Development and DATES: Effective Date: August 19, 2011. Program Operations, the Assistant Chief Research and HUD’s Office of Housing. FOR FURTHER INFORMATION CONTACT: Elie The Secretary may revoke any Procurement Officer for Support Operations, and the Assistant Chief F. Stowe, Assistant Chief Procurement discretionary authority authorized Officer for Policy and Systems, Office of herein, in whole or part, at any time. Procurement Officer for Field Operations as contracting officers. the Chief Procurement Officer, Section B. Authority Excepted Department of Housing and Urban Section A. Designation The authority delegated in this Development, 451 7th Street, SW., document does not include the The CPO hereby designates the Room 5276, Washington, DC 20410– authority to sue and be sued. Deputy Chief Procurement Officer, the 3000, telephone number 202–708–0294 Assistant Chief Procurement Officer for (this is not a toll-free number). Persons Section C. Authority To Redelegate Program Operations, the Assistant Chief with hearing or speech impairments The Chief Financial Officer is Procurement Officer for Support may access this number through TTY by authorized to retain or redelegate Operations, and the Assistant Chief calling the toll-free Federal Relay authorities delegated under Section A Procurement Officer for Field Service at 800–877–8339. above to the Deputy Chief Financial Operations as contracting officers; any SUPPLEMENTARY INFORMATION: This Officer and/or the Assistant Chief limitation(s) on the use of those notice includes the Department’s Financial Officers in the Office of the appointments shall be set forth within designations of the Chief Acquisition Chief Financial Officer, with the individual Certificate(s) of Officer and Senior Procurement exception of the authority to issue and Appointment. Executive, and delegations of waive regulations. procurement authority to the Chief Section B. No Authority To Further Procurement Officer. Previously, the Section D. Authority Superseded Redesignate delegations and redelegations were set This delegation supersedes all prior The authority conveyed in the forth in separate Federal Register delegations of authority from the designations in Section A does not notices. In addition, this notice revises Secretary to the Chief Financial Officer. include the authority to further the current delegations to clarify that

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the Chief Procurement Officer may Department, and make related designations concerning the Chief redelegate authority for simplified determinations and findings; Acquisition Officer and Senior acquisitions using the Government b. Authority to order the sanctions of Procurement Executive, and supersedes Purchase Card. Under prior notices, the debarment, suspension, and/or limited all previous delegations of authority to Chief Procurement Officer had denial of participation pursuant to 48 the Chief Procurement Officer. redelegated to the Department’s CFR 2409.7001 and 2 CFR part 2424; Authority: 41 U.S.C. 414; Section 7(d) of Commercial Credit Card Program c. Responsibility for procurement the Department of Housing and Urban Administrator authority for credit card program development, including: Development Act (42 U.S.C. 3535(d)). (1) Implementation of procurement purchases within the micro-purchase Dated: August 19, 2011. threshold established in Federal initiatives, best practices, and reforms; Shaun Donovan, Acquisition Regulation (FAR) part 13 (2) In coordination with the Office of and authority to further redelegate such Federal Procurement Policy, Secretary. authority to credit card holders. This determination of specific areas where [FR Doc. 2011–22186 Filed 8–29–11; 8:45 am] notice removes the Commercial Credit governmentwide performance standards BILLING CODE 4610–67–P Card Program Administrator’s authority should be established and applied, and to further redelegate this authority. development of governmentwide Accordingly, the Secretary hereby procurement policies, regulations, and DEPARTMENT OF HOUSING AND revokes, designates, and delegates as standards; URBAN DEVELOPMENT follows: (3) Establishment and maintenance of an evaluation program for all [Docket No. FR–5538–D–02] Section A. Designation of Chief procurement activities within the Acquisition Officer Department; Order of Succession for Government 1. The Deputy Secretary is designated (4) Development of programs to National Mortgage Association (GNMA) to serve as the Department’s Chief enhance the professionalism of the AGENCY: Acquisition Officer. Functions of the Department’s procurement workforce, Office of the President of the Chief Acquisition Officer are outlined at including the establishment of Government National Mortgage 41 U.S.C. 414. If the Deputy Secretary educational, training, and experience Association, HUD. position is vacant, the Senior requirements for procurement ACTION: Notice of Order of Succession. Procurement Executive will perform all personnel; and of the duties and functions of the Chief (5) Development of all departmental SUMMARY: In this notice, the President of Acquisition Officer. procurement policy, regulations, and the Government National Mortgage 2. The authority of the Chief procedures. Association (GNMA) designates the Acquisition Officer includes the 2. The Chief Procurement Officer is Order of Succession for GNMA. This authority to redelegate the duties and authorized to issue rules and regulations Order of Succession supersedes all prior functions of the Chief Acquisition as may be necessary to carry out the Orders of Succession for GNMA. Officer. authority delegated under this Section DATES: Effective Date: August 19, 2011. C. FOR FURTHER INFORMATION CONTACT: Section B. Designation of Senior 3. The Chief Procurement Officer may Procurement Executive Gregory A. Keith, Senior Vice President, redelegate: Chief Risk Officer, Government National 1. The Chief Procurement Officer is a. The procurement authority in C.1.a Mortgage Association, Department of designated as the Department’s Senior herein to qualified personnel within the Housing and Urban Development, Procurement Executive. Office of the Chief Procurement Officer. Potomac Center South, 550 12th Street, 2. The Senior Procurement Executive b. Limited purchasing authority to SW., 3rd Floor, Washington, DC 20024, shall report directly to the Deputy other qualified departmental employees, telephone number 202–475–4918 (this Secretary without intervening authority as follows: is not a toll-free number). Persons with for all procurement-related matters. (1) Simplified acquisitions (FAR Part hearing- or speech-impairments may 3. The authority of the Senior 13), including the Government Purchase access this number though TTY by Procurement Executive includes the Card purchases; and calling the toll-free Federal Relay authority to redelegate the duties and (2) Issuance of delivery and task Service at 1–800–877–8339. functions of the Senior Procurement orders under contracts established by Executive. other Government sources in SUPPLEMENTARY INFORMATION: The accordance with FAR Part 8, or under President of GNMA hereby issues this Section C. Delegation of Authority to Order of Succession pursuant to the Chief Procurement Officer prepriced indefinite-delivery contracts established by the Department. bylaws of GNMA, which authorize the 1. The Chief Procurement Officer is 4. All redelegations of procurement President to designate the sequence in delegated the authority to exercise all authority shall be made by way of which other officers of GNMA shall act. duties, responsibilities, and powers of contracting officer Certificates of The officers designated below shall the Secretary with respect to Appointment that clearly define the perform the duties and exercise the departmental procurement activities. limits of the delegated authority. power and authority of the President The authority delegated to the Chief when the President is absent, or unable Procurement Officer includes the Section D. No Authority to Redelegate to act, or when there is a vacancy in the following duties, responsibilities, and The authorities in Section C that may Office of the President of GNMA. This powers: be redelegated from the Chief Order of Succession is subject to the a. Authority to enter into, administer, Procurement Officer do not include the provisions of the Federal Vacancies and/or terminate all procurement authority to further redelegate. Reform Act of 1998 (5 U.S.C. 3345– contracts (as well as interagency 3349d) and the bylaws of the GNMA, 24 agreements entered into under the Section E. Authority Superseded CFR part 310. Accordingly, the authority of the Economy Act), for This designation and delegation of President of GNMA designates the property and services required by the authority supersedes all previous following Order of Succession:

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Section A. Order of Succession Order of Succession for the Office of the Chief Procurement Officer unless all Subject to the provisions of the Chief Procurement Officer. other officials preceding him or her in Federal Vacancies Reform Act of 1998 DATES: Effective Date: August 19, 2011. the order of succession are unable to act and the bylaws of GNMA, during any FOR FURTHER INFORMATION CONTACT: Ms. by reason of absence, disability, or period when, by reason of absence, Elie F. Stowe, Assistant Chief vacancy in office. The designated disability, or vacancy in office, the Procurement Officer for Policy, official shall perform the functions and President of GNMA is not available to Oversight, and Systems, Office of the duties until such time that the Chief exercise the powers or perform the Chief Procurement Officer, Department Procurement Officer or a higher-ranked duties of the President, the following of Housing and Urban Development, official in the order of succession is able officials within the Office of GNMA are 451 7th Street, SW., Room 5276, to resume them, or the duration of the hereby designated to exercise the Washington, DC 20410–3000, telephone temporary tenure of the acting Chief powers and perform the duties of the number 202–708–0294 (this is not a toll- Procurement Officer permitted by 5 Office, including the authority to waive free number). Persons with hearing or U.S.C. 3346 elapses. regulations: speech impairments may access this Section B. Authority Superseded. number through TTY by calling the toll- (1) Executive Vice President; This Order of Succession supersedes (2) Senior Vice President, Office of free Federal Relay Service at 800–877– all prior Orders of Succession for the Program Operations; 8339. Chief Procurement Officer. (3) Senior Vice President, Office of SUPPLEMENTARY INFORMATION: The Chief Finance; Procurement Officer for the Department Authority: Section 7(d), Department of (4) Senior Vice President, Office of Housing and Urban Development Act (42 of Housing and Urban Development is U.S.C. 3535(d)). Mortgage Backed Securities; issuing this Order of Succession of (5) Senior Vice President, Office of officials authorized to perform the Dated: August 19, 2011. Capital Markets; functions and duties of the Office of the Jemine A. Bryon, (6) Senior Vice President, Office of Chief Procurement Officer when, by Chief Procurement Officer. Enterprise Risk; reason of absence, disability, or vacancy [FR Doc. 2011–22188 Filed 8–29–11; 8:45 am] (7) Vice President, Chief Information in office, the Chief Procurement Officer BILLING CODE 4210–67–P Officer; and is not available to exercise the powers (8) Vice President, Deputy Director, or perform the duties of the office. This Office of Management Operations. Order of Succession is subject to the DEPARTMENT OF HOUSING AND These officials shall perform the provisions of the Federal Vacancies URBAN DEVELOPMENT functions and duties of the Office in the Reform Act of 1998 (5 U.S.C. 3345– [Docket No. FR–5518–D–01] order specified herein, and no official 3349d). This publication supersedes all shall serve unless all the other officials, prior Orders of Succession for the Office Order of Succession for the Office of whose position titles precede his/hers in of the Chief Procurement Officer. Policy Development and Research this order, are unable to act by reason The Chief Procurement Officer of absence, disability, or vacancy in designates the following Order of AGENCY: Office of the Assistant office. Succession. Secretary for Policy Development and Research, HUD. Section B. Authority Superseded Section A. Order of Succession ACTION: Notice of order of succession. This Order of Succession supersedes Subject to the provisions of the SUMMARY: In this notice, the Assistant all prior Orders of Succession for the Federal Vacancies Reform Act of 1998, Secretary for Policy Development and President of GNMA. during any period when, by reason of Research designates the Order of absence, disability, or vacancy in office, Authority: Section 7(d), Department of Succession for the Office of the Housing and Urban Development Act (42 the Chief Procurement Officer for the Assistant Secretary for Policy U.S.C. 3535(d)); Section 3.05, Bylaws of the Department is unable to perform his or Development and Research. This Order Government National Mortgage Association, her functions and duties, the following of Succession supersedes all prior 24 CFR part 310. officials within the Office of the Chief Orders of Succession for the Office of Dated: August 19, 2011. Procurement Officer, in the order of Policy Development and Research. Theodore W. Tozer, precedence shown, are hereby DATES: Effective Date: August 19, 2011. President, Government National Mortgage designated to exercise the powers and Association. perform the duties of the office: FOR FURTHER INFORMATION CONTACT: Jean Lin Pao, General Deputy Assistant [FR Doc. 2011–22176 Filed 8–29–11; 8:45 am] (1) Deputy Chief Procurement Officer; (2) Assistant Chief Procurement Secretary, Office of Policy Development BILLING CODE 4210–67–P Officer for Support Operations; and Research, Department of Housing (3) Assistant Chief Procurement and Urban Development, 451 7th Street, DEPARTMENT OF HOUSING AND Officer for Program Operations; SW., Room 8228, Washington, DC URBAN DEVELOPMENT (4) Assistant Chief Procurement 20410–6000, telephone number 202– Officer for Field Operations; 708–1812. (This is not a toll-free [Docket No. FR–5561–D–02] (5) Assistant Chief Procurement number.) Persons with hearing or Officer for Policy and Systems; speech impairments may access this Order of Succession for the Office of (6) Director, Field Contracting number through TTY by calling the toll- the Chief Procurement Officer Operations (Southern); free Federal Relay Service at 1–800– AGENCY: Office of the Chief Procurement (7) Director, Field Contracting 877–8339. Officer, HUD. Operations (Western); and SUPPLEMENTARY INFORMATION: The (8) Director, Field Contracting ACTION: Notice of Order of Succession. Assistant Secretary for Policy Operations (Northern). Development and Research is issuing SUMMARY: In this notice, the Chief No official designated herein shall this Order of Succession of officials Procurement Officer designates the assume the functions and duties of the authorized to perform the duties and

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functions of the Office of the Assistant DEPARTMENT OF HOUSING AND (5) Assistant Chief Financial Officer Secretary when, by reason of absence, URBAN DEVELOPMENT for Financial Management. disability, or vacancy in office, the [Docket No. FR–5539–D–02] These officials shall perform the Assistant Secretary is not available to functions and duties of the office in the exercise the powers or perform the Order of Succession for the Office of order specified herein and no official duties of the office. This Order of the Chief Financial Officer shall serve unless all the other officials, Succession is subject to the provisions whose position titles precede his/hers in of the Vacancy Reform Act of 1998 (5 AGENCY: Office of the Secretary, HUD. this order, are unable to act by reason U.S.C. 3345–3349d). This publication ACTION: Notice of Order of Succession. of absence, disability, or vacancy in supersedes all prior Orders of office. SUMMARY: Succession for the Office of Policy In this notice, the Secretary Development and Research. designates the Order of Succession for Section B. Authority Superseded the Office of the Chief Financial Officer. Accordingly, the Assistant Secretary This Order of Succession supersedes This Order of Succession supersedes all any prior Orders of Succession for the for Policy Development and Research prior Orders of Succession for the Office Chief Financial Officer. designates the following Order of of the Chief Financial Officer. Succession: DATES: Effective Date: August 19, 2011. Authority: Section 7(d), Department of Housing and Urban Development Act, 42 Section A. Order of Succession FOR FURTHER INFORMATION CONTACT: U.S.C. 3535(d). Laura Moore-Rush, Acting Deputy Subject to the provision of the Director, Office of the Chief Financial Dated: August 19, 2011. Vacancy Reform Act of 1998, during any Officer Management Staff, Office of the Shaun Donovan, period when, by reason of absence, Chief Financial Officer, Department of Secretary. disability, or vacancy in office, the Housing and Urban Development, 451 [FR Doc. 2011–22185 Filed 8–29–11; 8:45 am] Assistant Secretary for Policy Seventh Street, SW., Room 3120, BILLING CODE 4210–67–P Development and Research is not Washington, DC 20410, telephone available to exercise the powers or number 202–402–3638 (this is not a toll- perform the duties of the Office of the free number). Persons with hearing or DEPARTMENT OF THE INTERIOR Assistant Secretary for Policy speech impairments may access this Development and Research, the number through TTY by calling the Bureau of Land Management following officials within the Office of Federal Relay Service at 800–877–8339. Policy Development and Research are [LLAK920000–L14100000–BJ0000] SUPPLEMENTARY INFORMATION: The hereby designated to exercise the Secretary is issuing this Order of Notice of Filing of Plats of Survey; powers and perform the duties of the Succession of officials authorized to Alaska office, including the authority to waive perform the functions and duties of the regulations: Office of the Chief Financial Officer AGENCY: Bureau of Land Management, (1) Deputy Assistant Secretary for when, by reason of absence, disability, Interior. Policy Development; or vacancy in office, the Chief Financial ACTION: Notice of Filing of Plats of (2) General Deputy Assistant Officer is not available to exercise the Survey. Secretary; powers or perform the duties of the SUMMARY: Notice of Filing of Plats of office. This Order of Succession is (3) Deputy Assistant Secretary for Survey; Alaska. subject to the provisions of the Federal Research, Evaluation, and Monitoring; Survey Desriptions: The plat and field Vacancies Reform Act of 1998 (5 U.S.C. and notes, representing the corrective 3345–3349d). This publication (4) Deputy Assistant Secretary for dependent resurvey of the Second supersedes all prior Orders of Economic Affairs. Guide Meridian East, along a portion of Succession for the Office of the Chief the west boundary of Township 7 North, These officials shall perform the Financial Officer. Range 9 East, the corrective dependent functions and duties of the office, in the Accordingly, the Secretary designates resurvey of the south boundary of the order specified herein, and no official the following Order of Succession: shall serve unless all the other officials, Steese National Conservation Area whose position titles precede his or hers Section A. Order of Succession (north unit) as defined by the 1987 in this order, are unable to act by reason Subject to the provisions of the survey of Townships 7 North, Ranges 8 of absence, disability, or vacancy in Federal Vacancies Reform Act of 1998, and 9 East and the survey of Tract 37, office. during any period when, by reason of Township 7 North, Range 9 East, accepted July 18, 2011, for Group No. Section B. Authority Superseded absence, disability, or vacancy in office, the Chief Financial Officer is not 444, Alaska. This Order of Succession supersedes available to exercise the powers or The plat of survey of U.S. Survey No. all prior Orders of Succession for the perform the duties of the Chief 13984, Alaska, in 17 sheets, Office of Policy Development and Financial Officer, the following officials representing the monumented Research. within the Office of the Chief Financial centerline of the Pinnell Mountain Trail Officer are hereby designated to exercise and 2 Lots with associated trail Authority: Section 7(d) of the Department improvements thereon, is situated of Housing and Urban Development Act, 42 the powers and perform the duties of U.S.C. 3535(d). the Office: northerly of the Steese Highway, (1) Deputy Chief Financial Officer; between Twelvemile Summit (Milepost Dated: August 19, 2011. (2) Assistant Chief Financial Officer 86) and Eagle Summit (Milepost 107), Raphael W. Bostic, for Budget; approximately 75 miles northeasterly of Assistant Secretary for Policy Development (3) Assistant Chief Financial Officer Fairbanks, within Township 7 North, and Research. for Accounting; Range 9 East and Townships 8 North, [FR Doc. 2011–22171 Filed 8–29–11; 8:45 am] (4) Assistant Chief Financial Officer Ranges 9, 10 and 11 East, of the BILLING CODE 4219–67–P for Systems; and Fairbanks Meridian, Alaska, accepted

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July 18, 2011, for U.S. Survey No. Dated: August 24, 2011. DEPARTMENT OF THE INTERIOR 13984, Alaska. Michael H. Schoder, DATES: The plat of survey described Chief Cadastral Surveyor, Alaska. Bureau of Land Management above is scheduled to be officially filed [FR Doc. 2011–22082 Filed 8–29–11; 8:45 am] in the Alaska State Office, Bureau of BILLING CODE 4310–JA–P [LLMTB07900 09 L10100000.PH0000 Land Management, Anchorage, Alaska, LXAMANMS0000] September 29, 2011. ADDRESSES: Bureau of Land DEPARTMENT OF THE INTERIOR Notice of Public Meeting; Western Management, Alaska State Office, 222 Montana Resource Advisory Council W. 7th Ave., Stop 13, Anchorage, AK Bureau of Land Management 99513–7599. [LLAZ956000.L14200000.BJ0000.241A] AGENCY: Bureau of Land Management, FOR FURTHER INFORMATION CONTACT: Interior. Notice of Filing of Plats of Survey; Michael H. Schoder, Chief Cadastral ACTION: Notice of public meeting. Surveyor, Division of Cadastral Survey, Arizona BLM–Alaska State Office, 222 W. 7th AGENCY: Bureau of Land Management, SUMMARY: In accordance with the Ave., Stop 13, Anchorage, AK 99513– Interior. Federal Land Policy and Management 7599; Tel: 907–271–5481; fax: 907–271– Act and the Federal Advisory 4549; e-mail: [email protected]. ACTION: Notice of Filing of Plats of Persons who use a Survey; Arizona. Committee Act of 1972, the U.S. telecommunications device for the deaf Department of the Interior, Bureau of SUMMARY: The plat of survey as Land Management (BLM) Western (TDD) may call the Federal Information described below is officially filed in the Relay Service (FIRS) at 1–800–877–8339 Montana Resource Advisory Council Arizona State Office, Bureau of Land (RAC) will meet as indicated below. to contact the above individual during Management, Phoenix, Arizona. normal business hours. The FIRS is SUPPLEMENTARY INFORMATION: DATES: The meeting will be held Sept. available 24 hours a day, seven days a 15, 2011, beginning at 9 a.m. with a 30- week, to leave a message or question The Gila and Salt River Meridian, minute public comment period and will with the above individual. You will Arizona adjourn at 3 p.m. receive a reply during normal business The plat representing the dependent ADDRESSES: The meeting will be in the hours. resurvey of portions of Mineral Survey Bureau of Land Management Dillon SUPPLEMENTARY INFORMATION: The No. 1510, in Townships 23 North, Range Field Office (1005 Selway Drive) in survey plat(s) and field notes will be 17 and 18 West, accepted August 15, Dillon, Montana. available for inspection in the Public 2011, and officially filed August 17, Information Center, Alaska State Office, 2011, for Group 1099, Arizona. SUPPLEMENTARY INFORMATION: This 15- Bureau of Land Management, 222 West This plat was prepared at the request member council advises the Secretary of 7th Avenue, Anchorage, Alaska 99513– of the Bureau of Land Management. the Interior on a variety of management 7599; telephone (907) 271–5960. Copies A person or party who wishes to issues associated with public land may be obtained from this office for a protest against any of these surveys management in Montana. During these minimum recovery fee. must file a written protest with the meetings the council will participate in/ If a protest against the survey is Arizona State Director, Bureau of Land discuss/act upon several topics, received prior to the date of official Management, stating that they wish to including reports from the Bureau of filing, the filing will be stayed pending protest. Land Management’s Butte, Missoula and consideration of the protest. A plat will A statement of reasons for a protest Dillon field offices. not be officially filed until the day after may be filed with the notice of protest all protests have been dismissed. to the State Director, or the statement of All RAC meetings are open to the A person or party who wishes to reasons must be filed with the State public. The public may present written protest against this survey must file a Director within thirty (30) days after the comments to the RAC. Each formal RAC written response with the Alaska State protest is filed. meeting will also have time allocated for Director, Bureau of Land Management, FOR FURTHER INFORMATION CONTACT: hearing public comments. Depending on stating that they wish to protest. These plats will be available for the number of persons wishing to Before including your address, phone inspection in the Arizona State Office, comment and time available, the time number, e-mail address, or other Bureau of Land Management, One North for individual oral comments may be personal identifying information in your Central Avenue, Suite 800, Phoenix, limited. comment, you should be aware that Arizona 85004–4427. Persons who use a your entire comment—including your FOR FURTHER INFORMATION CONTACT: telecommunications device for the deaf personal identifying information—may David Abrams, Western Montana (TDD) may call the Federal Information be made publicly available at any time. Resource Advisory Council Coordinator, Relay Service (FIRS) at 1–800–877–8339 While you can ask us in your comment Butte Field Office, 106 North Parkmont, to contact the above individual during to withhold your personal identifying Butte, Montana 59701, telephone 406– normal business hours. The FIRS is information from public review, we 533–7617, e-mail available 24 hours a day, 7 days a week, cannot guarantee that we will be able to [email protected]. Persons who to leave a message or question with the do so. use a telecommunications device for the A statement of reasons for a protest above individual. You will receive a reply during normal business hours. deaf (TDD) may call the Federal may be filed with the notice of protest Information Relay Service (FIRS) at 1– to the State Director; the statement of Dated: August 23, 2011. 800–877–8339 to contact the above reasons must be filed with the State Danny A. West, individual during normal business Director within thirty days after the Chief Cadastral Surveyor of Arizona. hours. The FIRS is available 24 hours a protest is filed. [FR Doc. 2011–22081 Filed 8–29–11; 8:45 am] day, 7 days a week, to leave a message Authority: 43 U.S.C. 3; 53. BILLING CODE 4310–32–P or question with the above individual.

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You will receive a reply during normal surrounding Boston Harbor; Boston pay $150,000 in civil penalties to be business hours. Harbor advocates; and Native American split evenly between the United States interests. The purpose of the Council is Scott Haight, and the State of Ohio. to advise and make recommendations to Field Manager. The Department of Justice will receive the Boston Harbor Islands Partnership for a period of thirty (30) days from the [FR Doc. 2011–22084 Filed 8–29–11; 8:45 am] with respect to the development and date of this publication comments BILLING CODE 4310–DN–P implementation of a management plan relating to the proposed Consent Decree. and the operations of the Boston Harbor Islands NRA. Comments should be addressed to the DEPARTMENT OF THE INTERIOR Assistant Attorney General, Dated: August 22, 2011. Environment and Natural Resources National Park Service Richard Armenia, Division, and either e-mailed to [NPS–NEW–BOHA–0728–870; 1727–SZS] Acting Superintendent, Boston Harbor [email protected] or Islands NRA. mailed to P.O. Box 7611, U.S. Boston Harbor Islands National [FR Doc. 2011–21934 Filed 8–29–11; 8:45 am] Department of Justice, Washington, DC Recreation Area Advisory Council; BILLING CODE 4310–8G–P 20044–7611, and should refer to United Notice of Public Meeting States v. City of Euclid, Ohio, D.J. Ref. AGENCY: National Park Service, 90–5–1–1–08727. DEPARTMENT OF JUSTICE Department of the Interior. The proposed Consent Decree may be ACTION: Notice of Annual Meeting. Notice of Lodging of a Consent Decree examined at the Office of the United States Attorney, Northern District of SUMMARY: Notice is hereby given that a Under the Clean Water Act Ohio, 801 West Superior Avenue, Suite meeting of the Boston Harbor Islands Notice is hereby given that on August National Recreation Area Advisory 400, Cleveland, OH 44113 (contact 24, 2011; a proposed Consent Decree in Assistant United States Attorney Steven Council will be held on Wednesday, United States and the State of Ohio v. September 14, 2011, at 6 p.m. to 8 p.m. J. Paffilas (216) 622–3698), and at U.S. City of Euclid, Ohio, Civil Action No. Environmental Protection Agency, at Independence Wharf, 470 Atlantic 1:11–CV–01783 was lodged with the Avenue, Community Room, Boston, Region 5, 77 West Jackson Boulevard, United States District Court for the Chicago, IL 60604–3590 (contact MA. Northern District of Ohio. The agenda will include: Summer Associate Regional Counsel Joe In this action the United States and season review; park update; and public Williams (312) 886–6631). During the the State of Ohio seeks civil penalties comment. The meeting will be open to public comment period, the proposed and injunctive relief for violations of the the public. Any person may file with the Clean Water Act, 33 U.S.C. 1251 et seq., Consent Decree, may also be examined Superintendent a written statement in connection with the City of Euclid’s on the following Department of Justice concerning the matters to be discussed. operation of its municipal wastewater Web site, to http://www.usdoj.gov/enrd/ Persons who wish to file a written _ and sewer system. The Complaint Consent Decrees.html. A copy of the statement at the meeting or who want alleges that the City discharges proposed consent decree may also be further information concerning the combined sewer overflows (‘‘CSOs’’) obtained by mail from the Consent meeting may contact Superintendent and sanitary sewer overflows (‘‘SSOs’’) Decree Library, P.O. Box 7611, U.S. Bruce Jacobson at Boston Harbor in violation of the Clean Water Act Department of Justice, Washington, DC Islands, 408 Atlantic Avenue, Suite 228, because, in the case of CSOs, the 20044–7611 or by faxing or e-mailing a Boston, MA 02110, or (617) 223–8667. discharges of sewage violate limitations request to Tonia Fleetwood Before including your address, phone and conditions in the City’s National ([email protected]), fax no. number, e-mail address, or other Pollutant Discharge Elimination System (202) 514–0097, phone confirmation personal identifying information in your (NPDES) permit, and, in the case of number (202) 514–1547. In requesting a comment, you should be aware that SSOs, the discharges of sewage are not your entire comment—including your copy from the Consent Decree Library, authorized by the City’s NPDES permit. personal identifying information—may please enclose a check in the amount of The Complaint further alleges that the be made publicly available at any time. $37.75 (25 cents per page reproduction City bypasses treatment processes at its While you can ask us in your comment cost) payable to the U.S. Treasury or, if treatment plants, which also violate its to withhold your personal identifying by email or fax, forward a check in that NPDES permit. information from public review, we amount to the Consent Decree Library at Under the proposed Consent Decree, cannot guarantee that we will be able to the stated address. In requesting a copy Euclid will be required to submit to the do so. exclusive of exhibits, please enclose a United States Environmental Protection check in the amount of $10 (25 cents per DATES: September 14, 2011, at 6 p.m. Agency (‘‘EPA’’) and the Ohio page reproduction cost) payable to the ADDRESSES: Independence Wharf, 470 Environmental Protection Agency U.S. Treasury. Atlantic Avenue, Community Room, (‘‘Ohio EPA’’) an acceptable long term Boston, MA. control plan to reduce its CSOs and Maureen M. Katz, FOR FURTHER INFORMATION CONTACT: treatment plant bypasses, and an SSO Assistant Chief, Environmental Enforcement Superintendent Bruce Jacobson, (617) elimination plan to eliminate its SSOs. Section, Environment and Natural Resources 223–8667. Once EPA and Ohio EPA approve the Division. SUPPLEMENTARY INFORMATION: The plans, Euclid will be required to [FR Doc. 2011–22068 Filed 8–29–11; 8:45 am] implement the plans. The SSO work Advisory Council was appointed by the BILLING CODE 4410–15–P Director of National Park Service must be completed no later than pursuant to Public Law 104–333. The 28 December 31, 2020, and the CSO and members represent business, treatment plant work must be completed educational/cultural, community and and placed into full operation no later environmental entities; municipalities than December 31, 2026. The City will

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DEPARTMENT OF JUSTICE relating to the proposed Consent Decree. withdraw but did not grant his motion Comments should be addressed to the for a continuance of the hearing to allow Notice of Lodging of First Addendum Assistant Attorney General for the him to obtain new counsel.2 Exc. at 6– to Consent Decree Under the Environment and Natural Resources 7. Respondent argues that his previous Emergency Planning and Community Division, and either e-mailed to attorney had requested that he ‘‘be given Right-To-Know Act, the Clean Water [email protected] or leave of 21 days to obtain new counsel,’’ Act, the Resource Conservation and mailed to P.O. Box 7611, U.S. and that ‘‘[t]he ALJ mistakenly assumed Recovery Act, the Federal Insecticide, Department of Justice, Washington, DC that the attorney and Respondent were Fungicide, and Rodenticide Act, the 20044–7611, and should refer to United not asking for a delay of the hearing’’ Comprehensive Environmental States et al. v. INVISTA, S.a.r.l, DOJ Ref. and did not grant a continuance in her Response, Compensation, and Liability No. 90–5–2–1–08892. October 13, 2009 order. Id. at 7. Act, the Safe Drinking Water Act, and The proposed First Addendum to Respondent further asserts that the ALJ the Clean Air Act Consent Decree may be examined on the ‘‘unfairly denied a continuance’’ and following Department of Justice Web that he ‘‘must be given a fair hearing Under 28 CFR 50.7, notice is hereby site, http://www.usdoj.gov/enrd/ with representation for a proper given that on August 25, 2011, a Consent_Decrees.html. A copy of the outcome in this matter.’’ Id. at 10. proposed First Addendum to Consent proposed Consent Decree may be The record establishes that on October Decree in United States, et, al. v. obtained by mail from the Consent 9, 2009, Respondent’s prior counsel INVISTA, S.a` r.l, Civil Action Number Decree Library, P.O. Box 7611, U.S. filed a motion for leave to withdraw; in 1:2009-cv-00244, was lodged with the Department of Justice, Washington, DC his motion, Respondent’s prior counsel United States District Court for the 20044–7611 or by faxing or e-mailing a ‘‘further requested that Respondent be District of Delaware. request to Tonia Fleetwood given leave of twenty-one (21) days to The Consent Decree in this matter was ([email protected]), fax number secure new counsel.’’ ALJ Ex. 5. On entered on July 28, 2009. The Consent (202) 514–0097, phone confirmation October 13, 2009, the ALJ granted the Decree resolves claims against INVISTA number (202) 514–1547. In requesting a motion to withdraw. Id. However, the S.a` r.l. (‘‘INVISTA’’) brought by the copy of the Consent Decree from the ALJ found ‘‘it unnecessary to provide United States on behalf of the U.S. Consent Decree Library, please enclose leave of twenty-one (21) days for Environmental Protection Agency a check in the amount of $2.00 (.25 Respondent to secure new counsel (‘‘EPA’’) under the Emergency Planning cents per page reproduction costs), * * * as Respondent is free to retain and Community Right-to-Know Act payable to the U.S. Treasury. counsel at any time.’’ Id. The ALJ (EPCRA), 42 U.S.C. 11001 to 11050; the Robert D. Brook, further ordered that ‘‘the hearing in this Clean Water Act (CWA), 42 U.S.C. 1251 matter, scheduled to begin on November to 1387; the Resource Conservation and Assistant Section Chief, Environmental Enforcement Section, Environment and 3, 2009, shall proceed as scheduled.’’ Id. Recovery Act (RCRA), 42 U.S.C. 6901 to A copy of this ruling was served on 6992k; the Federal Insecticide, Natural Resources Division. [FR Doc. 2011–22121 Filed 8–29–11; 8:45 am] Respondent by Federal Express. Id. In Fungicide, and Rodenticide Act addition, the following day, the ALJ’s BILLING CODE 4410–15–P (FIFRA), 7 U.S.C. 136 to 136y; Section law clerk wrote Respondent noting that 103(a) of the Comprehensive it appeared that he was no longer Environmental Response, DEPARTMENT OF JUSTICE represented by counsel and calling his Compensation, and Liability Act attention to his ‘‘right to be represented (CERCLA), 42 U.S.C. 9601 to 9675; the Drug Enforcement Administration by an attorney’’; the letter also included Safe Drinking Water Act (SDWA), 42 verbatim the language of 21 CFR [Docket No. 09–33] U.S.C. 300f to 300j–26; and the Clean 1316.50, which addresses a party’s right Air Act (CAA), 42 U.S.C. 7401 to 7671q to representation. ALJ Ex. 6. The letter (hereinafter ‘‘Environmental Richard A. Herbert, M.D.; Decision and Order further advised Respondent that he Requirements’’). The Consent Decree could contact the ALJ’s law clerk if he also resolves the claims against On June 15, 2010, Administrative Law had any questions. Id. INVISTA brought by the State of Judge (ALJ) Mary Ellen Bittner issued At the hearing, Respondent argued Delaware Department of Natural the attached recommended decision. that his prior counsel had sought a Resources and Environmental Control, Thereafter, Respondent filed Exceptions continuance of twenty-one days. Tr. 11. the State of South Carolina Department to the ALJ’s decision. However, the ALJ noted that of Health and Environmental Control, Having reviewed the entire record Respondent’s prior attorney ‘‘did not and the Chattanooga-Hamilton County including Respondent’s Exceptions, I ask for a postponement of the hearing’’ Air Pollution Control Board. have decided to adopt the ALJ’s rulings, and that he had simply requested that The First Addendum to Consent findings of fact, conclusions of law, and Respondent ‘‘be given leave of 21 days Decree modifies deadlines for benzene recommended Order except as expressly to secure new counsel.’’ Id. at 12–13. 1 waste NESHAP program enhancements set forth below. Respondent replied that his prior at two INVISTA facilities in Orange and In his Exceptions, Respondent raises lawyer’s intent was ‘‘to get [him] time’’ Victoria, Texas. The First Addendum several issues. First, Respondent argues because ‘‘we have blocked out four extends the time for INVISTA to elect that he ‘‘was irreparably harmed’’ days’’ for the hearing, and no ‘‘major between two options for further benzene because he was forced to represent league attorney is going to have four emission reductions and extends the himself ‘‘pro se’’ after the ALJ granted days [open] on his calendar,’’ having time to implement the selected option. his previous attorney’s motion to been notified approximately three INVISTA will continue to comply with weeks before the hearing date. Id. at 13. 1 the benzene NESHAP throughout this Pursuant to 5 U.S.C. 552(a)(2), the ALJ’s The ALJ responded that she did not period. recommended decision has been edited to eliminate the names of various persons who were either The Department of Justice will witnesses or were referred to in the proceeding. All 2 Respondent does not, however, contend that the receive, for a period of 30 days from the citations to the ALJ’s decision are to the slip ALJ erred in granting the motion to withdraw. See date of this publication, comments opinion attached to this Decision and Order. Resp. Exc. at 6–10.

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know what Respondent’s prior lawyer December 8, 2006 through June 1, 2007; stopped (as when she was in the had ‘‘intended,’’ but only ‘‘what he and from July 11, 2007 through the date hospital), she would have undergone asked for.’’ Id. Respondent then stated of her death. ‘‘severe withdrawal,’’ including such that he understood, and that ALJ ‘‘ha[d] According to the testimony of a symptoms as abdominal pain, diarrhea, made [her] ruling.’’ Id. The ALJ then hospice nurse who treated E.M. for and vomiting. Id. at 105–06. Dr. S.D. proceeded to conduct the hearing. between eight months to a year, under also testified that when a patient is I conclude that the ALJ did not abuse the hospice agreement, E.M.’s family hospitalized, a family member is not her discretion in proceeding to conduct was required to disclose whether any allowed to give the patient medication. the hearing. Whatever the intent of other physicians were treating her. Tr. Id. at 107. There was, however, no Respondent’s counsel was in asking for 35, 38. In addition, the testimony evidence that E.M. underwent ‘‘leave * * * to secure new counsel,’’ established that the hospice was withdrawal during any of the various Respondent had at least three weeks required to know what medications occasions when she was hospitalized. between his prior attorney’s moving to E.M. was taking. Id. at 35. As the Id. at 106, 143–44. withdraw and the commencement of the hospice nurse explained, a doctor Dr. S.D. further testified that because hearing to find new counsel. While it would need to communicate with he was E.M.’s primary care physician, may be the case that most capable hospice what drugs he was prescribing Respondent had ‘‘the legal attorneys would not have four days so that contraindicated drugs were not responsibility to send [him] a consult clear on their calendar on three weeks’ prescribed by another doctor. Id. at 65. that [Respondent was] treating her for notice, it is not as if Respondent had Yet E.M.’s family, including her son pain and prescribing’’ OxyContin 80 mg secured new counsel who, because his I.S., who was a long-standing friend of to her. Id. at 140. Dr. S.D. testified that calendar was not clear, sought a Respondent and who also received the if doctors do not coordinate their continuance, which was denied. Indeed, same monthly prescriptions for 60 prescribing to a patient, the patient it is notable that at the hearing, tablets of OxyContin 80 mg (see id. at could overdose. Id. at 144. Dr. S.D. then Respondent made no claim that he had 686) and filled his mother’s testified that it is outside of the normal actually contacted any attorney, let prescriptions (id. at 690), did not course of medical practice for a alone that an attorney had declined to disclose to the hospice either that E.M. physician, who is aware that a patient represent him because the attorney had was being treated by Respondent or that is being treated by another physician, to a scheduling conflict. I therefore reject she was taking OxyContin 80 mg. Id. at prescribe drugs and fail to consult with Respondent’s exception and conclude 66. According to the hospice nurse, the the other physician.3 Id. that he is not entitled to a new hearing. only controlled substance she was As noted above, during the period in Respondent takes further exception to aware of being prescribed to E.M. was which Respondent issued the the ALJ’s conclusion that the OxyContin Valium. Id. at 35. Moreover, on those OxyContin prescriptions in E.M.’s prescriptions he issued to E.M. lacked occasions when the hospice nurse name, E.M. was admitted as an in- ‘‘a legitimate medical purpose’’ and that determined that E.M. needed some patient to a hospital on approximately he ‘‘was at least reckless or negligent in medicine for her arm or knee pain, I.S. twenty occasions.4 See GX 42. Yet there ignoring the warning signs of told the hospice nurse that Tylenol is no evidence that she ever underwent diversion.’’ Exc. at 10–16. Respondent (acetaminophen, a non-controlled drug) withdrawal. Moreover, in the raises a number of contentions regarding worked for his mother and that his voluminous medical records entered the weight the ALJ gave to the testimony mother could not handle stronger into evidence, Respondent points to of various witnesses and exhibits; medicine. Id. at 65. only a single instance (involving a Respondent also notes that after the The Government also called as a January 18, 2006 emergency room visit Agency’s hearing, the Illinois witness Dr. S.D., a specialist in internal for a potential stroke (CVA)), in which Department of Financial and medicine who was E.M.’s primary care the medical records listed her Professional Regulation (IDFPR) held a physician for the last four years of her medications as including OxyContin. hearing on the same allegations and life, including when she was in hospice. GX 21, at 29. If E.M. was actually taking ‘‘found that the State did not prove that Id. at 72, 76. According to Dr. S.D., E.M. the OxyContin, this begs the question of any diversion occurred.’’ Id. at 15. had lower back pain, shoulder and knee why her family was so reluctant to Having reviewed each of these pain, for which he prescribed Tylenol or disclose this information (as well as contentions, I concluded that a Darvocet. Id. at 89–90. However, she did Respondent’s) name to the hospitals preponderance of the evidence supports not require constant medication, and he where she was treated. the ALJ’s conclusions that the never prescribed OxyContin 80 mg, There is further evidence establishing OxyContin prescriptions which which he considered to be ‘‘too strong that Respondent’s prescriptions were Respondent issued in the name of E.M. for her.’’ Id. at 91–92. While Dr. S.D. unlawful. The evidence shows that on were issued outside of the ‘‘usual course once prescribed Vicodin to E.M. upon November 10, 2004, E.M. was of * * * professional practice’’ and her discharge from the hospital, GX 21, discharged from the hospital to the lacked ‘‘a legitimate medical purpose’’ at 31; he did not prescribe Vicodin to and therefore violated the CSA. 21 CFR her on a monthly basis. Tr. 143. 3 Respondent acknowledged that he was aware 1306.04(a). The evidence shows that While Dr. S.D. talked with I.S.’s live- that E.M. was being treated by other doctors, and the chart he maintained on her shows that he was beginning in September 2003, in girlfriend regarding E.M.’s condition, aware at various points that she was a patient in Respondent prescribed 60 tablets of he further testified that he was never a rehab facility and a nursing home. RX 16, at 5– Oxycontin 80 mg. (BID, twice a day), to told that Respondent was prescribing 6. Yet he never notified either her physicians or E.M., who was then 93 years old, on a OxyContin to her. Id. at 92, 95, 109, these facilities that he was prescribing OxyContin to her. While Respondent maintained he did not monthly basis through May 2009, one 141–42. Moreover, the hospice nurse notify E.M.’s physicians and the facilities regarding month before her death. RX 16. Yet on never told him that E.M. was seeing the OxyContin prescriptions because E.M’s family various occasions throughout this another doctor and never listed did not want him to, Respondent offered no period, E.M. was an in-patient in either OxyContin as one of her medications. credible explanation for why he continued to prescribe to E.M. when he knew she was under the a hospital or nursing home. See GX 42. Id. at 96, 102. Dr. S.D. further testified care of other physicians. Moreover, E.M. was under hospice care that if E.M. had, in fact, been taking two 4 She was also taken to the Emergency Room from June 9 through October 11, 2006; OxyContin 80 mg each day and had approximately ten times.

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Heritage Village Nursing Home, and that supports the conclusion that the State did not prove that any diversion at 9:30 a.m., she was admitted to the OxyContin prescriptions Respondent occurred.’’ Id. latter. GX 11, at 1; GX 25, at 3; GX 27A, issued in the name of E.M. lacked a Respondent does not, however, argue at 70. Yet Respondent noted in her chart legitimate medical purpose and were that C.S. was unavailable to testify in that on the same day, he performed a issued outside of the usual course of the DEA proceeding and her testimony physical exam at which he took her professional practice and thus violated does not constitute newly discovered blood pressure, palpated her deformities Federal law.6 21 CFR 1306.04(a). evidence. Cf. ICC v. Brotherhood of and found that they were ‘‘not as Respondent further points to an Locomotive Engineers, 482 U.S. 270, 286 painful,’’ and found that her ‘‘hand grip IDFPR Inspector’s Report of an (1987). As for the state ALJ’s findings, good,’’ RX 16, at 4; the same day, he also interview he conducted with E.M. and DEA was not a party to that proceeding. issued her a prescription for sixty her son on August 9, 2005. During this Moreover, this Agency has long held OxyContin 80 mg. See GX 28, at 10. interview, E.M. identified two green that it ‘‘maintains a separate oversight Respondent did not, however, offer any tablets, which were reportedly responsibility [apart from that which testimony explaining how he could OxyContin, and stated that they ‘‘were exists in a state board] with respect to have performed a physical exam on to combat pain.’’ RX 10. However, the handling of controlled substances E.M. on this day. earlier in the interview the Inspector and has a statutory obligation to make Likewise, Respondent noted in E.M.’s had asked E.M. if she had pain when its independent determination as to chart that on November 17, 2006, her she initially went to see Respondent and whether the granting of [a registration] would be in the public interest.’’ blood pressure was 138/94, she was she answered ‘‘no.’’ Id. I.S. had objected ‘‘[d]oing surprisingly well today,’’ she Mortimer B. Levin, D.O., 55 FR 8209, that ‘‘the question was unfair as he felt ‘‘spoke my 1st name,’’ and was 8210 (1990). Accordingly, even if she did not recall.’’ Id. Moreover, ‘‘oriented,’’ RX 16, at 5; he also issued Respondent had submitted the state Respondent had previously diagnosed a prescription in her name for sixty ALJ’s decision, the state ALJ’s finding E.M. as having ‘‘senile dementia’’ nearly OxyContin 80 mg. See GX 14, at 5. would not be entitled to collateral two years earlier, RX 16, at 1; and Dr. However, between October 12 and estoppel effect in this proceeding.7 Cf. P. (Dr. S.D.’s partner) had diagnosed December 8, 2006, E.M. was a patient in United States v. Mendoza, 464 U.S. 154 E.M. as having Alzheimer’s disease and the Manor Care Nursing Home. GX 21, (1984). I therefore reject Respondent’s dementia in June 2005, two months at 203; GX 27B, at 17, 956. Yet the exception that the evidence in the prior to the interview. Thus, there is record (including Respondent’s record of this proceeding does not testimony) establishes that Respondent ample reason to discount E.M.’s demonstrate that he engaged in the did not travel to the facilities E.M. was statement regarding the use of the diversion of controlled substances and in. Tr. 547. OxyContin. agree with the ALJ’s conclusion that he The ALJ found that there were Respondent also argues that after the acted outside of the usual course of ‘‘numerous inconsistencies between the instant hearing, the IDFPR held a professional practice and lacked a testimonies of [I.S.] and Respondent’’ hearing on the ‘‘same underlying legitimate medical purpose when he and that this led her ‘‘to believe that allegations,’’ at which much of the same issued OxyContin prescriptions in neither is a credible witness with regard evidence was presented; however, at the E.M.’s name. 21 CFR 1306.04(a). See to [E.M.’s] medication and treatment.’’ state hearing, Respondent was also able also George Mathew, M.D., 75 FR 66138, ALJ at 54. The ALJ further noted the to procure the testimony of C.S. (I.S.’s 66146 (2010) (under Federal law, where extensive amount of time that E.M. was wife). Exceptions at 15. Respondent a physician issues a prescription in in either a hospital or nursing home/ argues that the State ALJ ‘‘found that the violation of 21 CFR 1306.04(a), the drug rehab facility (approximately 290 days is deemed diverted). during the course of Respondent’s 6 Respondent argues that DEA Investigators Finally, Respondent argues that the prescribing to her) and found ‘‘it ‘‘could have easily secured a blood test of [E.M.] to proven allegations do not support the difficult to believe that [E.M.’s] family discern whether she was receiving OxyContin,’’ and revocation of his registration. Resp. Exc. that ‘‘[b]y the time Respondent realized the focus was able to administer [80 mgs of] of the investigation centered around this patient at 16. Contrary to Respondent’s OxyContin twice a day for such an and the severity of the charges against him, it was understanding, DEA has held that proof expansive time without ever arousing too late because the patient had passed away.’’ of a single act of diversion is sufficient the suspicion of the facility staff.5’’ Id. Exceptions at 12. Respondent further argues that to support the revocation of a ‘‘even though OxyContin was listed as a home I agree and find Respondent’s and I.S.’s medication and there was evidence that she was registration and the denial of an testimony implausible. I also agree with taking the medicine s[u]rreptitiously, Dr. [S.D., her application. See Dewey C. MacKay, 75 the ALJ’s conclusion that the record primary care physician,] never ordered a blood test FR 49956, 49977 (2010); Alan H. for opioid levels.’’ Id. at 13. As for DEA’s obligation Olefsky, 57 FR 928, 928–29 (1992) to secure a blood test, this is beside the point. 5 Among the implausible testimony I.S. gave was Moreover, in his testimony, Respondent (revoking registration based on that he or a family member would take the acknowledged that ‘‘[i]n retrospect’’ he should have physician’s act of presenting two OxyContin to his mother when she was institutionalized and give her the drug, which was done a blood test on E.M. to see if she was actually fraudulent prescriptions to pharmacy prescribed to be taken twice a day. Tr. 685. I.S. also taking the OxyContin. Tr. 835. However, he then for filling). The ALJ’s finding that attempted to shift the blame to Dr. S.D., asking asserted that when he went to his mother’s various Respondent issued prescriptions which institutions, and told them that he had ‘‘[w]hat is [his] excuse?’’ Id. ‘‘supplements [and] medications that I give my Respondent ignores that he was one who lacked a legitimate medical purpose is mother at home, and I would like you to administer prescribed 60 tablets of OxyContin 80 mg to E.M.— sufficient by itself to support the them, * * * they said we won’t do that * * * which is the second strongest formulation available revocation of Respondent’s registration, unless the doctor orders it. But if you want to come and which just happened to be the same especially, where, as here, the ALJ in yourself, or have somebody come in and give it prescription that he was giving her son—each to your mother, we haven’t got a problem with that, month, and did this for a period of more than five and that’s what I did.’’ Id. at 692–93. However, I.S. and a half years and did so even when he knew she 7 The Government also notes that in the IDFPR testified that he did not tell the facilities that he was being treated by other doctors. At a minimum, proceeding, the State’s burden of proof was ‘‘clear would be administering OxyContin. Id. Indeed, it this evidence establishes that Respondent acted and convincing evidence,’’ but in this proceeding seems strange that the facilities did not ask I.S. with deliberate ignorance as to the likelihood the the ‘‘preponderance of the evidence’’ standard what medications he intended to bring into the drugs were being diverted. See Jeri Hassman, M.D., applies. Gov. Resp. to Resp. Motion for Rehearing facility, and as the ALJ found, this testimony is 75 FR 8194, 8228 (2010) (citing United States v. and Exceptions, at 13 (citing Tit. 68, Cp. VII, patently disingenuous. Katz, 445 F.3d 1023, 1031 (8th Cir. 2006)). Subchapter a, Admin. Rule, Part 1110.190).

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found that ‘‘Respondent has repeatedly controlled substances. 21 U.S.C. 823(f) Respondent then committed additional failed to accept responsibility for his (2) & (4). Accordingly, Respondent’s violations of the CSA. misconduct.’’ ALJ at 44. See also Jayam failure to disclose the 1998 probation The numerous acts of misconduct Krishna-Iyer, 74 FR 459, 463 (2009) was capable of influencing the Agency’s proved on this record, along with (quoting Medicine Shoppe— decision as to whether to grant his Respondent’s unwillingness to accept Jonesborough, 73 FR 364, 387 (2008) application and was a material responsibility for much of it, and his (DEA ‘‘has repeatedly held that where a falsification.9 See The Lawsons, Inc., 72 demonstrated inability to take heed of registrant has committed acts FR 74334, 74338–39 (2007) (other the laws and regulations pertaining to inconsistent with the public interest, the citations omitted). Under the CSA, controlled substances even after being registrant must accept responsibility for material falsification provides a separate required to undergo remedial [his] actions and demonstrate that [he] and independent ground for denying an instruction, make clear that his will not engage in future application. 21 U.S.C. 824(a)(1). continued registration ‘‘would be misconduct.’’)); see also Hoxie v. DEA, Substantial evidence also supports the inconsistent with the public interest.’’ 419 F.3d 477, 483 (6th Cir. 2005) ALJ’s findings that Respondent 21 U.S.C. 823(f). I therefore reject (‘‘admitting fault’’ is ‘‘properly committed other acts of misconduct. Respondent’s exception that the consider[ed]’’ by DEA to be an These included his: (1) Obtaining evidence does not support the ‘‘important factor[]’’ in the public revocation of his registration. 8 Marinol, a schedule III controlled interest determination). substance, from a patient, who had been Accordingly, I will adopt the ALJ’s Moreover, the ALJ found that dispensed the drug by another doctor, in recommendation that his registration be Respondent had committed additional violation of 21 U.S.C. 844(a); and his (2) revoked and that his applications to acts which support the revocation of his failing to document his receipt of the renew and modify his registration be registration, including that he materially Marinol in violation of 21 U.S.C. denied. falsified his 2006 renewal application 827(a)(3). ALJ at 48–49. In addition, when he failed to disclose the 1998 Order probation imposed on his state medical Respondent prescribed controlled Pursuant to the authority vested in me license by the Illinois Department of substances from a new location at which by 21 U.S.C. 823(f) & 824(a), as well as Professional Regulation. ALJ at 43. As he did not hold a registration and did 28 CFR 0.100(b), I order that DEA the ALJ found, this was a material so even after he was told by DEA Certificate of Registration, BH8738063, falsification because the underlying personnel to stop doing so. ALJ at 30– issued to Richard A. Herbert, M.D., be, conduct which gave rise to the State’s 31, 52–53 (citing GXs 9, 33, and 34). As and it hereby is, revoked. I further order order was Respondent’s prescribing of the ALJ noted, ‘‘Respondent’s act of that the applications of Richard A. Dilaudid, a schedule II controlled continuing to handle controlled Herbert, M.D., to renew and modify his substance, to four patients ‘‘under substances after numerous warnings registration be, and they hereby are, questionable circumstances, i.e., for shows a flagrant disregard for the denied. This order is effective pain related to old injuries or for pain requirements of the law governing the September 29, 2011. handling of controlled substances.’’ Id. in which surgery may have provided Dated: August 12, 2011. relief and that two (2) of the patients at 53. Michele M. Leonhart, may have sold some of the Dilaudid Finally, based on a 2003 state back to Respondent.’’ GX 7. This proceeding, the ALJ found that Administrator. falsification was material because under Respondent failed to properly supervise Bryan Bayly, Esq., for the Government. the public interest standard, DEA is an unlicensed person who distributed Richard A. Herbert, M.D., Pro Se, for the required to assess an applicant’s phentermine, a schedule IV controlled Respondent. substance, to patients of a weight loss experience in dispensing controlled Opinion and Recommended Ruling, clinic where Respondent worked and substances and his record of compliance Findings of Fact, Conclusions of Law which was owned by the unlicensed with state and federal laws related to and Decision of the Administrative Law person who was a personal friend. ALJ Judge 8 In concluding that Respondent has not accepted at 46. According to the record, this responsibility for his misconduct, the ALJ noted occurred when Respondent left his Mary Ellen Bittner, Administrative that ‘‘despite my previous rulings to the contrary, medical bag (which contained the Law Judge. This proceeding is an Respondent continues to assert that most of the adjudication pursuant to the evidence and testimony admitted in the instant drugs) at the clinic and the clinic owner hearing is inadmissible and should not be distributed the phentermine to its Administrative Procedure Act, 5 U.S.C. considered’’ and that he ‘‘continues to assert that he patients. Notably, five years earlier—as 551 et seq., to determine whether the was ‘not afforded a capable attorney’ although he part of the 1998 Consent Order, which Drug Enforcement Administration was at any time free to procure the assistance of (DEA) should revoke a physician’s counsel [and] was notified of such.’’ ALJ at 44 resolved the allegations pertaining to his (citing Resp. Closing Argument Br. at 10). handling of Dilaudid—Respondent was Certificate of Registration as a To make clear, that Respondent continues to required to take a course in controlled practitioner and deny any pending object to the admission of certain evidence and substance management. GX 7, at 3. Yet applications for renewal or modification argues that he was not afforded a capable attorney of that registration. Without this is of no relevance in determining whether he accepts responsibility for his misconduct. I thus 9 In his Exceptions, Respondent also contends registration the physician, Respondent reject the ALJ’s reliance on Respondent’s legal that the Agency’s consideration of the 1998 Consent Richard A. Herbert, M.D., of Riverside, arguments as a basis for concluding that he does not Order violates his right to due process because due Illinois, will be unable to lawfully accept responsibility. However, the record contains process ‘‘requires protection from a never-ending handle controlled substances in the an ample evidentiary basis for concluding that time limit for the DEA to bring an action.’’ Respondent does not accept responsibility for most Exceptions at 3. Respondent, however, makes only course of his practice. of his misconduct, and his explanation of his a conclusory assertion of prejudice. Cf. United On March 11, 2009, the Deputy prescribing to E.M. is utterly implausible. Thus, I States v. Brockman, 183 F.3d 891, 895 (8th Cir. Assistant Administrator, Office of conclude that Respondent has not rebutted the 1999). He likewise ignores that in making the public Diversion Control, of the DEA issued an Government’s prima facie case. See Hoxie, 419 F.3d interest determination, Congress directed the at 483 (upholding Agency’s reliance on registrant’s Agency to consider his experience in dispensing Order to Show Cause to Respondent, lack of candor in determining whether registration controlled substances, an inquiry which necessarily giving Respondent notice to show cause is consistent with the public interest). entails review of prior incidents of misconduct. why the DEA should not revoke his

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DEA Certificate of Registration pursuant patient by giving the patient a a medical investigator and controlled to 21 U.S.C. 824(a)(l) and (a)(4), and prescription that Respondent wrote in substance inspector for the IDFPR, deny any pending applications for the name of the patient’s mother. testified that the IDFPR was previously renewal or modification of such Respondent, through counsel, timely known as the Department of registration pursuant to 21 U.S.C. 823(f), requested a hearing on the allegations in Professional Regulation but was merged on grounds that he materially falsified the Order to Show Cause. On October 9, with several stand-alone agencies to an application for renewal of his 2009, Respondent’s counsel requested eventually become the IDFPR. [Tr. 155] registration and that his continued leave to withdraw as counsel because of registration would be inconsistent with a conflict of representation; I granted III. The Evidence Pertaining to the public interest as that term is used counsel’s request on October 13, 2009; Respondent in 21 U.S.C. 824(a)(4) and 823(f). and sent a copy of the memorandum A. Respondent’s Illinois Department of In substance, the Order to Show granting that request to Respondent by Professional Regulation 1998 Consent Cause alleges that Respondent holds a Federal Express that same day. Order DEA Certificate of Registration that Following prehearing procedures, a expired on October 31, 2006, and for hearing was held in Chicago, Illinois, Investigator D.M. testified that he and which Respondent submitted a timely from November 3 through November 6, two representatives of the DEA were renewal application on September 26, 2009, with the Government represented involved in a 1994 investigation of 2006; that on that renewal application, by counsel and Respondent appearing Respondent regarding the diversion of Respondent was required to answer pro se. Both parties called witnesses to Dilaudid. [Tr. 154, 733] On February 26, whether a state medical board had taken testify and introduced documentary 1998, Respondent entered into a action against his state license; that on evidence. After the hearing, both parties Consent Order with the Illinois then- February 26, 1998, the Illinois then- filed proposed findings of fact, Department of Professional Regulation. Department of Professional Regulation conclusions of law, and argument. All of The Consent Order stated that had placed Respondent’s medical the evidence and posthearing Respondent ‘‘may have prescribed license on probation for one year submissions have been considered, and Dilaudid to four (4) patients under because Respondent issued unlawful to the extent the parties’ proposed questionable circumstances, i.e. for pain prescriptions for Dilaudid, a brand findings of fact have been adopted, they related to old injuries or for pain in name product containing the Schedule are substantively incorporated into which surgery may have provided relief II narcotic controlled substance those set forth below. and that two (2) of the patients may hydromorphone hydrochloride; that Issue have sold some of the Dilaudid back to Respondent failed to disclose the 1998 Respondent.’’ 10 Respondent did not probation on his September 2006 Whether a preponderance of the admit or deny the allegations but, for renewal application; that Respondent evidence establishes that, pursuant to 21 the purposes of the Consent Order only, obtained dronabinol, a Schedule III U.S.C. 824(a)(l) and (a)(4), Respondent’s agreed not to contest the allegations. hallucinogenic controlled substance, registration with the Drug Enforcement Respondent testified in the instant from a patient who had acquired it Administration should be revoked and hearing that he does not agree that his pursuant to a prescription from another any pending applications for renewal or actions were unlawful and that his physician but had no record of such modification of that registration denied, position is that he acted lawfully. receipt, and that on July 21, 2003, because Respondent made material [Tr.743, GX 2] misstatements on an application for Respondent dispensed that dronabinol Under the terms of the Consent Order, registration and because his continued to another purported patient but had no Respondent’s Illinois physician and registration would be inconsistent with record of such dispensing; that on surgeon and controlled substances the public interest as that term is used August 15, 2003, the Illinois Department licenses were both placed on probation in 21 U.S.C. 823(f). of Financial and Professional Regulation for one year with several conditions, (IDFPR) placed Respondent’s medical Findings of Fact including completion of a course in license on probation for three years controlled substances management and I. Background because Respondent failed to supervise a requirement that Respondent make an unlicensed employee who illegally Respondent is a physician licensed to and submit controlled substance logs to handled phentermine, a Schedule IV practice medicine and to handle the Department of Professional stimulant controlled substance; that controlled substances in Illinois. He has Regulation for a period of time. [GX 7] Respondent disclosed the 2003 held a DEA registration since April 13, probation on his September 2006 2004, with a registered address at B. Respondent’s Illinois Department of renewal application; that on July 5, Oakbrook Center Mall in Oak Brook, Financial and Professional Regulation 2005, the Illinois Department of Illinois. [GX 1] 2003 Consent Order Professional Regulation served Investigator D.M. testified that Respondent with an administrative II. The Illinois Department of Financial another IDFPR investigation of subpoena seeking to obtain patient and Professional Regulation Respondent began in 1999 and records and that Respondent did not The Illinois Department of Financial concerned the ‘‘aiding and abetting in fully comply with the subpoena in that and Professional Regulation (IDFPR) is a the unlicensed practice of medicine.’’ 11 he redacted patient identification state agency that licenses physicians According to Investigator D.M., an A.D. information and all dates of treatment; and investigates complaints regarding had ‘‘dispensed’’ 12 to patients in that on July 28, 2007, the administrative licensed physicians. Upon conclusion of Chicago phentermine that Respondent subpoena was re-issued to Respondent; an investigation, the information is and that from February 2006 through forwarded to a medical coordinator, 10 August 2007, Respondent diverted who is a physician, for review. That GX 7. 11 Tr. 157. individual then determines whether to OxyContin, a brand name product 12 Agent D.M. testified that his use of the term containing the Schedule II narcotic recommend the case to the Medical ‘‘dispense’’ referred to ‘‘providing the actual pills.’’ controlled substance oxycodone, to a Disciplinary Board. [Tr. 151–152] D. M., Tr. 159.

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had ordered and received at his substance log and inventory records; realized his error and notified his Oakbrook office. receiving dronabinol, a Schedule III attorney, who in turn notified At the hearing in the instant case, controlled substance, from a purported Investigator D.M. and produced the log Respondent testified that he had a ‘‘deal patient and re-dispensing it to another that included three entries for 2003. [Tr. for pay’’ with his friend Mr. D., who purported patient, and failing to keep 622, RX 2] owned a weight loss clinic in Chicago. any records of the receipt and Pursuant to this agreement, Respondent dispensing of the dronabinol; providing 2. Respondent’s Dispensing of used his DEA registration to purchase incomplete records in response to an Dronabinol phentermine at his registered Oakbrook IDFPR subpoena issued by the IDFPR; D.S. was a Chicago police officer who location and then took the phentermine aiding and abetting the unlicensed to Mr. D.’s clinic in a locked bag that tested positive for practice of medicine relating to a June 18 Respondent would sometimes leave at 2005 incident; and issuing prescriptions tetrahydrocannabinol (THC) after a the clinic; Respondent saw patients and for OxyContin to patients without random drug test performed by the created records at the clinic and sold the examining them and failing to keep and Chicago Police Department on July 24, phentermine to Mr. D. who in turn sold maintain records of those patients and 2003. [Tr. 163] At Officer D.S.’s the phentermine to the patients at a the controlled substances. subsequent police board hearing on higher cost. Respondent testified that August 10, 2004, Respondent testified one day he left his bag filled with his 1. The IDFPR Inspection of that he treated Officer D.S. on July 21, stock of phentermine at the clinic Respondent’s Controlled Substances Log 2003, at Respondent’s office and gave although he was not there, and when Investigator D.M. testified that in him eight 10-milligram gelatin capsules patients came in Mr. D. provided them April 2005 he interviewed Respondent of Marinol 19 to control nausea and with phentermine from the bag and regarding his controlled substances logs vomiting; that he did not write a instructed them to come back in a few and that Respondent stated that he did prescription for Marinol for Officer D.S. days to see Respondent.13 Respondent not have any logs for the years 2003, but gave him ‘‘samples’’ of the drug that testified that once he was notified that 2004, or 2005 because he had not he had in his office; 20 [GX 5 at 98] that some of those patients were state ordered any controlled substance it is his practice to ask patients to give investigators, he immediately resigned medications and therefore had no him their unused medications, so that from the clinic and offered to cooperate. occasion to dispense 16 them or he can ‘‘recycle’’ them ‘‘as much as I Respondent testified that at a state maintain a log of them. [Tr. 194] possibly can’’; 21 [GX 6 at 146] and that hearing regarding the matter, he Investigator D.M. further testified that when he receives medications from admitted that he had guilt because he when he again met with Respondent in patients, he puts the medication in a technically aided in Mr. D.’s ‘‘practice May 2005, Respondent iterated that he bottle, labels it, and stores it, but does of medicine by not securing my did not have a log because he had not not keep a record of which patient controlled substances’’ 14 but that he dispensed any controlled substances in provided the medication. [GX 6 at145] ‘‘didn’t actually aid and abet.’’ 15 On 2003, 2004, or 2005. Investigator D.M., In a continuation of the police board August 15, 2003, Respondent entered however, was aware from the transcript hearing on October 13, 2004, into a Consent Order with the IDFPR of a Chicago Police Board hearing held Respondent testified that the Marinol he with regard to Mr. D.’s provision of on August 10 and October 13, 2004, that gave to Officer D.S. was not a phentermine from the Chicago clinic. Respondent had testified in that The Consent Order stated that proceeding about dispensing dronabinol manufacturing sample but came from Respondent failed to supervise an to a patient on July 21, 2003; this another of Respondent’s patients, unlicensed employee and Respondent incident is further discussed below. [Tr. although Respondent had no record of admitted that the allegations were true. 165] Respondent testified in the instant who that patient was; [GX 6 at 144] As a result of the Consent Order, hearing that ‘‘my assumption when when asked at the police board hearing Respondent’s Illinois physician and D.M. was in there was that I knew that which patient provided the Marinol, surgeon and controlled substances I had not ordered anything for years, Respondent replied that ‘‘[i]t could be 22 licenses were placed on probation for a and not recalling these three patients, I anyone of a number of patients’’; and period of three years with several simply filled out a handwritten log and that the Marinol ‘‘probably came from conditions, including completion of zero.’’ 17 either a leukemia or lymphoma continuing medical education in the Respondent further stated that at the treatment patient * * * the other area of prescribing and dispensing time he knew that he had not ordered possibility is this could have come from 23 controlled substances and allowing the anything from drug wholesalers for an AIDS patient.’’ In response to a IDFPR to inspect Respondent’s many years and therefore had not question regarding the frequency with controlled substance log book and dispensed anything, and that he did not which he had prescribed or given inventory record book upon request. recall that he had made a controlled Marinol to patients, Respondent said: ‘‘I [GX 8] substances log for 2003, which included have a number of patients that use three entries and had been stored in his chemotherapeutic agents for lymphomas C. Respondent’s Activity During the sample cabinet; later that evening he and malignancies, leukemias. I also 2003–2006 Probation Period have a large number of AIDS patients The IDFPR filed a complaint against 16 Investigator D.M. stated that in this instance, ‘‘dispensing’’ means providing or prescribing. Tr. Respondent on April 5, 2007, alleging 18 THC is a Schedule I controlled substance. 194. But see supra note 3. The Illinois Compiled 19 that he violated the terms of his Statutes defines ‘‘dispense’’ as ‘‘the interpretation, Marinol is a brand name product containing probation as set forth in the 2003 evaluation, and implementation of a prescription dronabinol, a Schedule III controlled substance, the drug order, including the preparation and delivery active ingredient of which is a synthetic form of Consent Order by failing to make tetrahydrocannabinol, which naturally occurs in the available for inspection his controlled of a drug or device to a patient or patient’s agent in a suitable container appropriately labeled for Schedule I controlled substance marijuana. subsequent administration to or use by a patient in 20 See GX 5 at 98. 13 Tr. 587. accordance with applicable State and federal laws 21 GX 6 at 146. 14 Tr. 589. and regulations.’’ 225 ILCS 85/3. 22 GX 6 at 144–145. 15 Tr. 589. 17 Tr. 622. 23 Id.

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that I use Marinol for.’’ 24 Respondent 3. Respondent’s Response to the IDFPR appeared to include the dates of then testified, however, that he had Subpoenas treatment and other information that prescribed or given samples of Marinol Investigator D.M. testified that the had been previously redacted. [Tr. 175] only a few times in the last several years IDFPR Medical Disciplinary Board Respondent testified that he eventually and that he had the Marinol in his office issued to Respondent a Subpoena Duces complied with the subpoena after the because it might have come from a remaining patients gave him permission Tecum dated June 15, 2005, pursuant to 26 patient who obtained it pursuant to a the Illinois Medical Practice Act of to provide copies of their records. prescription from another doctor. 1997. [GX 10] The subpoena 4. Respondent’s Issuance of OxyContin In the instant hearing, the commanded Respondent to surrender Prescriptions Government entered into evidence certain documents and records Investigator D.M. testified that he met Respondent’s medical record for Officer concerning his treatment of ten with Respondent in June 2005 at D.S., which indicates that Respondent individuals, identified on the subpoena Respondent’s office and that during that ‘‘sampled’’ Marinol 10 mg to Officer by name and date of birth. The interview Respondent said that he D.S. [GX 4] Respondent testified that he documents were to be surrendered on or issued to chronic pain patients before June 30, 2005, to one of two both received and dispensed the prescriptions for 60 OxyContin 80 mg identified individuals for inspection by 27 Marinol in a plastic pill case without a and for Tylenol 3 or Tylenol 4, and the medical disciplinary board. that he instructed the patients to take a label but that he recognized the pills as Investigator D.M. prepared and Marinol and used a picture in the half tablet of OxyContin twice a day. attached to the subpoena an affidavit Respondent further said that he used to Physician’s Desk Reference (PDR) to advising that, according to a profile verify what the pill was. Respondent prescribe Dilaudid 2 or 4 mg. [Tr. 198] received from the Illinois Department of Investigator D.M. further testified that, further testified that he remembered the Human Services, [GX 28] Respondent at that meeting, Respondent indicated patient from whom he had received the issued multiple prescriptions of that a number of his patients were Marinol because he had never received OxyContin 80 mg to the ten individuals employed at Balmoral horse racing track Marinol from a patient before. [Tr. 767] whose records were requested, and that and, when Investigator D.M. asked Respondent entered into evidence an some of those individuals also were Respondent whether any of the ten affidavit dated May 2, 2008, and signed identified as having received Dilaudid patients listed on the subpoena by a J.W.; Respondent testified that Mr. from Respondent in the 1994 discussed above knew one another, J.W. was a former patient of his who had investigation. The affidavit states that Respondent stated that two of the AIDS.25 Mr. J.W.’s affidavit states that Respondent issued the prescriptions in patients, S.P. and C.G., worked at he was HIV positive; that Respondent question between January 1, 2004, and Balmoral. Respondent did not, however, was one of several physicians who April 2005, and, specifically, that mention the relationships among I.S., treated him; and that he took Marinol to during this period Respondent issued E.M., and C.G., all of whom were also stimulate his appetite but because he 124 prescriptions for Schedule II identified on the subpoena and who, as did not like the way it made him feel controlled substances, 123 of which discussed below, shared a household. and he could not control its effects, he were for 60 dosage units each of [Tr. 202] Respondent testified in the stopped taking the Marinol and gave the OxyContin 80 mg. instant hearing that he had a personal Investigator D.M. testified that in remaining pills to Respondent. The relationship with Ms. E.M. and went to response to the subpoena, Respondent’s affidavit does not identify Mr. J.W.’s high school with her son, Mr. I.S.; Ms. attorney provided records from which source for the Marinol but states that the C.G. was identified as Mr. I.S.’s the names of the individuals and the cost is high and that Mr. J.W. did not girlfriend. [Tr. 485] dates of treatment were redacted. [GX 3] Investigator D.M. testified that he and want to dispose of the pills by flushing Further, Investigator D.M. stated that the Diversion Investigator C.R. of the DEA’s them down the toilet or putting them in documents provided indicated that one Chicago office interviewed Mr. I.S. in the garbage. [RX 17] patient had her records sent to a family July 2005. Mr. I.S. told them that he was Respondent testified that as of the doctor who agreed to continue on the board of directors for harness date of the hearing he understood that OxyContin and that Respondent did not racing at Balmoral Park; that he was not authorized to acquire have copies of those records, and that approximately sixty percent of the Marinol from a patient, although he had after Respondent advised another employees there had drug abuse and/or not thought about it before, and that he patient that the Medical Disciplinary dependency problems; that he had was not authorized to provide that Board had asked to review the patient’s sustained some injuries from horse Marinol to Officer D.S.. Respondent records, the patient strongly objected to racing accidents; that he had been further testified that he did not tell such a review and took the records, and friends with Respondent for about 25 or Officer D.S. that he had acquired the Respondent did not have copies of 30 years; that Respondent issued him Marinol from another patient rather them. [Tr. 170] OxyContin prescriptions either at Investigator D.M. further testified that than as a manufacturing drug sample. Respondent’s office or when they met on June 20, 2007, the Medical [Tr. 765] Respondent further testified for lunch; and that Respondent also Disciplinary Board issued a second that he did not keep any record of subpoena to Respondent, again 26 As evidence of his compliance with the receipt of the Marinol because at the requesting the medical records for the subpoena, Respondent admitted into evidence time he thought that he was only ten previously identified individuals Respondent Ex. 1, which includes the first page of required to maintain records of drugs multiple patient files that appear to have the and requiring that no information other patients’ names and dates of birth and dates of that he purchased. than the patient identity be removed. treatment redacted, although a name is handwritten [Tr. 171] Investigator D.M. testified that at the top of each page. 27 I take official notice from the 2007 edition of 24 he did not know whether Respondent GX 6 at 146. the Physicians’ Desk Reference that Tylenol 3 and 25 The affidavit is signed by a J.W.; there is no had provided that information, [Tr. 311] Tylenol 4 are brand names for products containing witness signature and the document is not but that he had seen documents in the acetaminophen with codeine, a Schedule III notarized. possession of an IDFPR attorney that controlled substance.

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prescribed OxyContin for Mr. I.S.’s that S.D., M.D., treated Ms. E.M. while remembering people, including her son girlfriend, C.G., and his mother, E.M., she was at a senior care center. [Tr. 312] whom she confused with her husband. who both lived with him. [Tr. 212] Mr. I.S. showed Investigator D.M. Respondent testified that Ms. E.M. Investigator D.M. testified that at the prescriptions that Respondent had suffered from vascular dementia, known July 2005 interview, Mr. I.S. showed issued to Ms. E.M. for various as Binswanger’s disease, which he him OxyContin vials for Ms. E.M., Ms. medications, including Plavix, Micardis, characterized as a small vessel disease C.G., and himself, all of which indicated Prevacid, aspirin, Lipitor, nitroglycerin of the white matter; and benign myalgic that they had contained 60 dosage units patches, Remeron, Toprol, and encephalomyelitis, which causes of 80 mg strength and that Respondent Vicodin 32 which Mr. I.S. typically filled fatigue, bowel disorders, and cognitive issued the prescriptions. The label had near his home at a pharmacy called deficits. Respondent testified that been removed from Mr. I.S.’s vial; he Doc’s Drugs. Mr. I.S. stated that after the because of the dysfunction of the white explained that it could be embarrassing stroke Ms. E.M. had difficulty getting matter in the brain, Ms. E.M. found it for anyone, particularly at the race track, around and was responding to stimuli difficult to walk and perform to know that he was taking OxyContin differently than before and was no organizational tasks. [Tr. 480] Mr. I.S. inasmuch as he was promoting a longer doing household chores. testified that Ms. E.M.’s problems of loss program to help people at the track who Dr. S.D., an internal medicine of memory and failure to recognize her might have addiction problems. Mr. I.S. family were caused by and occurred further told the investigators that he had physician experienced in treating geriatric patients and in the medical use only when Ms. E.M. was taking certain helped to create rules regarding drug medication. [Tr. 725] use in both humans and horses; and that of controlled substances, testified that Respondent testified that he treated he did not think that he was abusing the Ms. E.M. suffered from medical problems such as tachycardia (an Ms. E.M. ‘‘in concert with the whole medication because he was able to 34 function and he did not have needle irregular heartbeat), lower back pain, patient’’; that diabetes affects every marks, which he said would be a sign arthritis in multiple joints, and organ in the body and causes kidney of an addict. [Tr. 224] dementia; [Tr. 79] he also noted that Ms. failure, high blood pressure, coronary Mr. I.S. testified in the instant E.M. had kyphoscoliosis, which he said disease, peripheral artery disease, and hearing, however, that he removed the was not uncommon for a patient of Ms. cerebral vascular disease; [Tr. 472] and label from his OxyContin bottle so that E.M.’s age, and often occurs after a that Ms. E.M. suffered a series of ‘‘the kids wouldn’t know what was in person develops osteoporosis; and that transient ischemic attacks (TIAs), a the bottles’’; 28 [Tr. 721] he received his she had been admitted to the hospital at closing of a small blood vessel in the pain medication from Respondent, various times for such ailments as brain, around 2004, and had elevated whose office was one hour and 25 urinary tract infection, pneumonia, blood sugar levels. Respondent testified minutes away from Mr. I.S.’s residence, chest pain, and possible seizure that all of these factors taken together [Tr. 722] and that ‘‘if I couldn’t get my disorder. C.K., a licensed practical nurse led him to ‘‘try everything that I could pain medication from [Respondent], specializing in geriatrics and end-of-life to reverse the arterial sclerosis in the carotid arteries.’’ 35 then I would get medication wherever I care and employed by Hospice of could if I had to, but I don’t recall even Kankakee Valley (Kankakee Hospice), Respondent testified that he having to.’’ 29 Mr. I.S. then testified that testified that when Ms. E.M. was prescribed to Ms. E.M. a combination of 36 ‘‘there was a time when [Respondent] admitted to Kankakee Hospice, she high-dosage drugs, including Actos 37 was having a problem with the DEA, suffered from ‘‘adult failure to and Metformin, to shut down her and I couldn’t get my medication, and thrive,’’ 33 arthritis, a steel rod in her body’s glucose production and to re- at that time when I was getting right arm, a hump in her back, and some sensitize the peripheral resistance to medication whatever way I could, and dementia, as indicated by her difficulty insulin, Lipitor to reverse the arterial I went to another doctor once’’; 30 and sclerotic changes in the neck, and before Ms. E.M. began getting the Lycinapro, Morvasc, and Zetia [Tr. 477] 32 Lipitor is a brand name product containing OxyContin prescriptions, he ‘‘would atorvastatin calcium, a non-controlled substance with Metformin to open up her arteries, take her to the doctors and I would take and synthetic lipid-lowering agent. I take official all of which was part of an anti- her to a clinic’’ and ‘‘[y]ou only had to notice of the following information from the 2007 inflammatory treatment to stop the look at my mother and write her edition of the Physicians’ Desk Reference: Plavix is progression of her carotid artery disease. a brand name product containing clopidogrel something right away, because she was bisulfate, a non-controlled substance and inhibitor [Tr. 600] Dr. S.D., however, testified that crippled.’’ 31 of platelet aggregation that helps protect against if Ms. E.M. had the blood sugar and future heart attack or stroke; Micardis is a brand glycosulated hemoglobin levels D. E.M. name product containing telmisartan, a non- Respondent described, it would not 1. E.M.’s Medical Conditions controlled substance that is a nonpeptide name product containing lansoprazole, a non-controlled have been necessary to medicate her for Investigator D.M. testified that he substance, the active ingredient of which is a diabetes, and that the proper treatment interviewed Mr. I.S. again in August compound that inhibits gastric acid secretion, would have been to try to control the typically prescribed to treat and prevent stomach condition with diet. Dr. S.D. testified 2005 at Mr. I.S.’s home. Investigator and intestinal ulcers; nitroglycerin patches contain D.M. testified that Mr. I.S. advised him an organic nitrate, a non-controlled substance, that that he has never prescribed Actos or that Ms. E.M. had recently suffered a helps prevent chronic chest pain caused by heart Metformin for ‘‘off-label’’ use; and that stroke and had been hospitalized at St. disease; Remeron is a brand name product in his opinion, Actos and Metformin containing mirtazapine, a non-controlled substance Mary’s Hospital and treated by V.P., and tetracyclic antidepressant used primarily in the M.D.; [Tr. 226] that Respondent was Ms. treatment of depression; Toprol is a brand name 34 Tr. 472. E.M.’s primary physician prior to her product containing metoprolol succinate, a 35 Tr. 486. admission to St. Mary’s Hospital and noncontrolled substance that is indicated for the 36 See RX 22. Actos is a brand name product treatment of hypertension; and Vicodin is a brand containing pioglitazone hydrochloride, a non- name drug containing hydrocodone bitartrate, a controlled substance, and is an oral antidiabetic 28 Tr. 720 Schedule III controlled substance, and agent that acts primarily by decreasing insulin 29 Tr. 715. acetaminophen, and is indicated for the relief of resistance. [GX 40] 30 Tr. 715. moderate to moderately severe pain. 37 I take official notice that Metformin is a non- 31 Tr. 716. 33 Tr. 34. controlled substance.

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have no use other than to treat diabetes. discuss the issue with Respondent and E.M. in her home in late 2007 and early [Tr. 133] follow his advice as to what medication 2008, seeing her twice per week for Investigator R. testified that she Ms. E.M. should be prescribed. [Tr. 730] approximately one hour per visit. [Tr. visited the Kankakee Hospice central Mr. I.S. testified that he would have Ms. 30] At each visit Ms. C.K. performed a office on April 30, 2009, [Tr. 354] where C.G. ‘‘ask Dr. S.D. to write it, and most physical assessment of Ms. E.M. (taking she spoke to Executive Director D.L., of the time he would.’’ 41 Mr. I.S. also her blood pressure, heart and Patient Care Coordinator P.L., C.K., and testified that he took Ms. E.M. to see respiration rate; listening for lung C.D., another nurse who treated Ms. G.M., M.D., or T.M., M.D.42 ‘‘on an sounds, bowel sounds; assessing her E.M. Investigator R. testified that none emergency basis, and because we didn’t skin, cognition, etc.). [Tr. 32] Ms. C.K. of the people she interviewed had any want to see Dr. S.D.’’; 43 and if Ms. E.M. testified that every visit from and knowledge of Ms. E.M. ever having was sick, which, according to Mr. I.S., telephone call or other conversation diabetes [Tr. 355] and there was no occurred ‘‘maybe once or twice in her with Kankakee Hospice personnel was record of Ms. E.M. receiving medication life,’’ 44 he took her to see Dr. M. Mr. I.S. recorded and that the hospice also kept such as Actos and Metformin. [Tr. 356] initially testified that he believed Dr. M. hospital records, laboratory test results, Investigator R. also obtained from Doc’s was aware that Respondent was treating and records received from the doctor. Drugs pharmacist E.U. a prescription Ms. E.M., [Tr. 698] but later said that he Ms. C.K. further testified that profile listing all the prescriptions did not think that either Dr. T.M. or Dr. Kankakee Hospice needs to know of issued to Ms. E.M. and filled at that G.M. knew that Respondent was treating every physician ‘‘who is on board to pharmacy from January 1, 2006, through Ms. E.M. [Tr. 699] treat the patient’’; 46 that there is a August 29, 2008, [Tr. 347] that indicates Dr. S.D. testified that he, along with primary physician and usually a that Respondent wrote prescriptions for Dr. V.P., B.D., M.D., and M.S., M.D., all secondary physician; and that Kankakee Ms. E.M. for Actos, Metformin, Lipitor, treated Ms. E.M. for approximately four Hospice prefers to have its personnel Plavix, and Zetia.38 Dr. S.D. testified years prior to her death in 2009. Dr. S.D. accompany the patient to doctor that a home health nurse caring for Ms. further testified that Ms. E.M. was appointments. Ms. C.K. testified that E.M. once asked him about giving Ms. admitted to St. Mary’s Hospital in while she cared for Ms. E.M., none of E.M. Coumadin and Plavix, both blood Kankakee, Illinois, several times and her family members ever mentioned that thinners, but he advised that Ms. E.M. also was a patient at Manor Care Respondent was treating her, but the should not take either drug because she Nursing Home in Kankakee and at times family did mention that Ms. E.M. saw had suffered multiple falls and those had hospice care and home health care; Dr. S.D. and Dr. M. Ms. C.K. also was medications increased the danger of that he was listed as Ms. E.M.’s primary not aware of any physicians making bleeding in the brain. care physician at each of those home visits to Ms. E.M., although that Dr. S.D. testified that he told the nurse institutions; and that he does not know information should have been disclosed that Ms. E.M. should just continue Respondent and was never informed to Kankakee Hospice. taking aspirin. [Tr. 87] that Respondent was treating Ms. E.M. [Tr. 98] Dr. S.D. further testified that Ms. 3. Ms. E.M.’s Prescriptions and 2. E.M.’s Treating Physicians E.M. was under hospice care for the last Treatment Respondent testified that he began two-and-a-half to three years of her life, Respondent testified that when he treating Ms. E.M. around 2003, when during which time he was her primary began treating Ms. E.M. in 2003, she was she was approximately 92 years old, and care physician; that although he only taking multiple pain medications, such 39 that he had ‘‘a lot invested in E.M.,’’ saw Ms. E.M. a few times in his office as Tylenol No. 4, Lorcet,47 and Vicodin; with whom he had had a personal and in the hospital, he gave telephone that she sometimes took as many as 10 relationship since he attended high orders and communicated with the or 12 pills per day; and that he changed school with Mr. I.S. [Tr. 485] Mr. I.S. hospice nurse regarding Ms. E.M.’s her regimen to a more potent and testified that the hospice to which Ms. condition; he had no reason to believe controlled dosage on a regular schedule. E.M. was admitted only allowed that Ms. E.M. was seen by any other [Tr. 498] Respondent testified that Ms. patients to use the hospice doctors; that doctor or was taking medications not E.M. suffered from low back pain; that hospice personnel told him that the included on the medication list that he treatment with medication on an as- only doctor Ms. E.M. could have was Dr. approved; [Tr. 102] and that any other needed basis was not sufficient to 40 S.D., [Tr. 661] and that he nonetheless physician who was treating Ms. E.M. relieve her pain; and that the admitted his mother to hospice care should have informed him that he or appropriate treatment was to increase because he needed someone to care for she was prescribing OxyContin to her. the amount of opioid medication until her and he could not afford financially [Tr. 140] Dr. S.D. testified that it is out either the pain went away or the side to provide that care himself. Mr. I.S. of the range of normal practice for a effects became too drastic to continue. further testified that Dr. S.D. was physician to prescribe medications to a [Tr. 514] According to Respondent, ‘‘strictly a hospice doctor that she saw patient without consulting with other instead of tapering a patient off a drug whenever she was admitted to the treating physicians of which he is while he still has symptoms, a doctor hospital, and he helped her get into aware. [Tr. 144] should increase the level of the drug in Ms. E.M. was first admitted to hospice’’; that Respondent was Ms. order to extinguish the symptoms; Kankakee Hospice, which provides care E.M.’s primary doctor, [Tr. 677] and that tolerance with regard to symptoms in the patient’s home, on June 9, 2006.45 if another physician prescribed requires an increased dosage that Ms. C.K. testified that she cared for Ms. something for Ms. E.M., Mr. I.S. would relieves the pain, which is different from increasing dosage to extinguish 38 41 Tr. 673. Zetia is a brand name product containing pain. [Tr. 517] Respondent testified that ezetimibe, a non-controlled substance that inhibits 42 G.M. and T.M. are physicians who practice the intestinal absorption of cholesterol. [RX 36] together and appear to have each treated Ms. M. all patients develop dependence, which 39 Tr. 487. The testimony is not always clear as to which Dr. 40 In his brief, Respondent asserts that the hospice M. the witnesses are referencing. 46 Tr. 35. requirement was to use a doctor located in 43 Tr. 698. 47 I take official notice that Lorcet is a brand name Kankakee. See Respondent’s Closing Argument 44 Tr. 698. product containing hydrocodone bitartrate and Brief at 11. 45 See GX 17. acetaminophen.

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means that if the medicine is abruptly the pharmacist had told him that the alternative was available; [Tr. 414] and withdrawn, the patients will become ‘‘deliver[y] mechanism of oxycodone that the time release generic of antsy, shaky, and complain of was that it delivers all at once, and that OxyContin had been available at nervousness, and that although some the OxyContin was more of a time relevant times except for a period of anti-anxiety agents or antihistamines release thing over 12 hours.’’ 54 Mr. I.S. approximately six months around 2007. may be used to treat the withdrawal further testified that because the generic [Tr. 840] Mr. I.S. testified that he symptoms, the best option is to drug was not a time release product and submitted the insurance claims for the withdraw the medication slowly over a Ms. E.M. insisted that she wanted ‘‘the OxyContin prescriptions to Ms. E.M.’s period of time. Respondent testified that other one,’’ 55 [Tr. 695] he thereafter insurance carrier and that he paid addiction ‘‘is the unworkable lifestyle filled the prescriptions with OxyContin. Respondent in cash for his services to that is created by a person that escalates [Tr. 672] Ms. E.M. [Tr. 695] 48 the intake of narcotics and opioids,’’ Investigator R., however, testified that 4. Administering OxyContin to E.M. and is always exhibited by anti-social she spoke with Mr. E., the pharmacist behavior. from Doc’s Drugs, who informed her On January 18, 2006, Ms. E.M. was Dr. S.D. testified that he never that if a patient presents a prescription admitted to St. Mary’s Hospital; at that prescribed OxyContin to Ms. E.M. written for a brand name drug and time, a home medication list indicated because he was afraid that she could not requests a generic, or the prescription that she received OxyContin 80 mg handle a strong pain medication, but allows a generic to be substituted for the every 12 hours. [GX 21 at 9] Respondent that he prescribed Aricept for dementia, brand name product, then the testified that he arranged to have a Toprol XL and Micardis for cardiac pharmacist must provide the patient family member see that OxyContin was issues, [Tr. 83] and Tylenol, and that he with a generic medication that has the included on Ms. E.M.’s home maybe prescribed Darvocet, and same properties as the brand name drug, medication list because he ‘‘wanted occasionally Vicodin for pain.49 Dr. S.D. somebody to figure out that she was on including any time release effect; and 57 testified that Ms. E.M.’s pain, although that oxycodone 80 mg is not available as pain medication.’’ Dr. S.D. testified chronic, was not so severe that she an immediate release tablet because it that he ordered that the OxyContin not needed constant pain medication. [Tr. could be fatal. [Tr. 840] The be continued and that he was not aware 89] Government offered into evidence of OxyContin ever again being listed on Mr. I.S. testified that OxyContin copies of prescriptions Respondent Ms. E.M.’s medication lists, [Tr. 90] but seemed to work better than the other issued to Ms. E.M. that investigators that if Ms. E.M. had been on OxyContin and it was stopped, she would suffer medications Ms. E.M. had tried, and obtained from Doc’s Drugs; [Tr. 340; Tr. from withdrawal symptoms such as that before she started taking 412; Tr. 231] each prescription was abdominal pain, diarrhea, and vomiting. OxyContin, Ms. E.M. sometimes took as written for OxyContin with substitution [Tr. 106] many as four or five pills per day’’ 50 of permitted. Respondent testified that Vicodin, Lorcet, or ‘‘whatever I had.’’ 51 Dr. S.D. also testified that Ms. E.M. breaking an OxyContin tablet in half did not receive OxyContin while in the Mr. I.S. testified that Respondent started only somewhat obviates the time release prescribing OxyContin 80 mg to Ms. hospital because family members are effect and that the active ingredient may not permitted to give medication to E.M. in 2003, and that Mr. I.S. was not release more quickly. [Tr. 797] surprised by the high dosage because he patients, that patients receive only those According to a Physician’s Desk medications prescribed by the attending ‘‘didn’t know much about it.’’ 52 Mr. I.S. Reference excerpt for OxyContin that physician, and that he was Ms. E.M.’s further testified that Respondent never the Government offered into evidence, attending physician and did not changed the strength or quantity of ‘‘OxyContin tablets are to be swallowed prescribe OxyContin to her. [Tr. 107] OxyContin he prescribed to Ms. E.M. whole and are not to be broken, chewed, Dr. S.D. testified that he never spoke [Tr. 708] or crushed. Taking Broken, Chewed, or with Mr. I.S. but would call his home Mr. I.S. testified that he initially filled Crushed OxyContin tablets leads to and leave messages regarding Ms. E.M.’s Ms. E.M.’s OxyContin prescriptions rapid release and absorption of a condition. Dr. S.D. testified that Mr. I.S. with the brand name drug but because 56 potentially fatal dose of oxycodone.’’ did not return calls, but that he did it was very expensive, he then tried the Investigator D.M. testified that there is speak with Mr. I.S.’s girlfriend. [Tr. 109] generic form. According to Mr. I.S., a large price differential between the Mr. I.S. testified that although Dr. S.D. however, Ms. E.M. insisted that she brand drug and the generic, and that the issued prescriptions to Ms. E.M. for wanted the brand name product’’ 53 and OxyContin brand can sell on the street Vicodin, he did not fill those for approximately one dollar per prescriptions because his mother was 48 Tr. 519. milligram. [Tr. 297] Investigator R. 49 I take official notice of the following already taking OxyContin. information from the 2007 edition of the testified that Mr. E. told her that Mr. I.S. Investigator R. testified that on Physicians’ Desk Reference: Aricept is a brand always picked up Ms. E.M.’s October 23, 2006, she met with name product containing donepezil hydrochloride, prescriptions and that although Kankakee Hospice’s executive director, a non-controlled substance, indicated for the insurance covered the prescriptions, Mr. treatment of mild to moderate dementia; Tylenol is D.L., who told her that the Hospice’s a brand name over-the-counter medication I.S. paid the co-pay, which was policy requires that the nurses be containing acetaminophen and is indicated for the sometimes as much as $400 for the informed of all of a patient’s temporary relief of minor aches and pains; brand name drug, in cash. Mr. E. further medications and treating physicians. propoxyphene and acetaminophen and is used to told Investigator R. that it was unusual Investigator R. further testified that at relieve mild to moderate pain. for a customer to request a brand name 50 Mr. I.S. later testified that Ms. E.M.s took ‘‘[a]t that meeting she also spoke with other least three pills a day,’’ in the range of three to with such a high co-pay when a generic Hospice personnel who told her that seven pills, ‘‘whatever it took to kill her pain, that OxyContin did not appear on Ms. E.M.’s is as many pills as I gave her for the day.’’ Tr. 717. his mother had suffered a stroke and would not medication list and her Kankakee 51 recognize the difference between generic and brand Tr. 669. Hospice records did not mention that 52 Tr. 668. name drugs. Tr. 244. 53 Investigator D.M. testified that in the August 54 Tr. 671. she was in pain or that Respondent 2005 interview, Mr. I.S. had stated that he filled his 55 Tr. 671. mother’s prescriptions with generic drugs because 56 GX 40 at 17. 57 Tr. 821.

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treated her. [Tr. 352] Ms. C.K. testified Mr. I.S. testified that Kankakee Respondent testified that he that Ms. E.M. complained of pain in her Hospice only allowed patients to use the completed the continuing medical knees and arm and sometimes had hospice ‘‘system for drugs,’’ 62 and education course required under his difficulty standing and some stiffness, therefore either he or someone in his 2003 Consent Order and that during that but that Mr. I.S. or Ms. C.G. gave her family gave Ms. E.M. OxyContin while course he learned that it is unlawful Tylenol to alleviate the pain and that she was admitted to Kankakee Hospice ‘‘for a pharmacist to refill a blank and Mr. I.S. said that the Tylenol worked and when she was in St. Mary’s give two dispenses on the same single and he did not want his mother to have Hospital, at Manor Care Nursing Home, blank’’ 68 for a Schedule II controlled anything else. Ms. C.K. testified that it at Heritage Village Nursing Home, and substance. Respondent further testified seemed unusual for the caregivers to at St. James Hospital. [Tr. 680] Mr. I.S. that he believes that a physician can insist that only they would administer testified that Ms. E.M. received one authorize another prescription without certain medications. [Tr. 40, Tr. 45] Ms. OxyContin pill in the morning and one seeing the patient and that it is ‘‘even C.K. further testified that as far as she at night but for the two weeks before his legal under the information that I go by knew, the only controlled substance that mother died he gave her only the that you can even predate a controlled Ms. E.M. took was Valium 58 for nighttime dose because he worried that substance prescription’’; 69 [Tr. 739] but seizures; and that Ms. E.M.’s family she may have been too weak to receive that he has never predated prescriptions never mentioned that she was taking more; [Tr. 682] OxyContin was the only and has never written refills although he OxyContin. Ms. C.K. testified that she prescription medication that the family has written new prescriptions without was not aware of any controlled gave to Ms. E.M.; 63 and to his seeing the patient. Respondent testified substances that were prescribed to Ms. knowledge, the hospital never gave Ms. that he also learned that a physician E.M. on a chronic or recurring basis; E.M. any pain medication, not even should ensure that patients to whom he that she never saw any medications Aleve, and that he did not know why prescribes a controlled substance do not prescribed by Respondent or any she should need Aleve.64 [Tr. 668] obtain controlled substances from OxyContin vials or pills at Ms. E.M.’s another source and that such patients home; and that the only medication that Respondent’s patient chart for Ms. should be tested to verify that they are the hospice team attempted to count E.M. includes treatment notes for at actually taking that medication. [Tr. was Valium, which they had difficulty least one day each month beginning 740] Respondent had earlier testified accessing from Ms. E.M.’s family. [Tr. September 15, 2003, and ending on the that if the Government suspected 35; Tr. 42] Mr. I.S. testified that he did date of her death, June 13, 2009, [RX 16] diversion of OxyContin with regard to not want to tell the Kankakee Hospice but indicates that Ms. E.M. ‘‘missed E.M. then either the Government or Dr. personnel about his mother having appointments’’ with Respondent on S.D. should have tested her for it. [Tr. OxyContin because Kankakee Hospice both February 28 and March 28, 2006.65 577] had told him that it must have control Respondent explained that ‘‘at this Mr. I.S. testified that he discussed over any controlled substances Ms. E.M. point in time when I write missed with Respondent the concern that Ms. took and thus hospice personnel must appointment, that will mean that I did E.M. receive ‘‘her proper pain have access to those drugs, but that he not give her a prescription for pain medicine’’ 70 when she was in a nursing did not want to leave the OxyContin ‘‘in medication.’’ 66 Respondent later home or hospital. [Tr. 674] Mr. I.S. a cabinet for some punk or something testified that ‘‘I may have issued it at further testified that Dr. S.D. prescribed that may be coming in my house after their home at a later appointment, at a Vicodin for Ms. E.M. but that she never school to take or whatever.’’ 59 Mr. I.S. later point in time, but I don’t think I asked for it because she did not need it; also testified that Ms. E.M. did not want issued it.’’ 67 The Government offered and that when Ms. E.M. was in the anyone to know that she was on pain into evidence [GX 14] photocopies of nursing home or hospital he hired his medication because ‘‘she was very old- prescriptions Respondent issued to Ms. girlfriend’s daughter to visit her twice a fashioned, and * * * she just didn’t E.M. for 80 mg OxyContin and dated day and to give her medication and food think it was anybody else’s business.’’ 60 February 28 and March 28, 2006. and to sit with her. [Tr. 675] Respondent Investigator R. testified that on Respondent’s patient chart for Ms. E.M. testified that he had instructed ‘‘him’’ 71 October 23, 2008, she interviewed Ms. indicates, and Respondent testified, that to be aware of other depressants, D., who had treated Ms. E.M. in her he saw her on October 20 and November sleeping pills, narcotics, and opioids home in 2006–2007. Ms. D. told 17, 2006, but records from St. Mary’s given Ms. E.M. so as to avoid an Investigator R. that Ms. E.M. Hospital in evidence as a Government overdose. [Tr. 656] Mr. I.S. testified that complained of mild arthritic pain; that exhibit show that Ms. E.M. was in the three or four weeks before his Ms. D. asked Mr. I.S. whether they admitted to that hospital on October 7, mother died, he met with the St. Mary’s should look into getting something 2006, that she was discharged on Hospital administrator and asked that stronger to alleviate the pain; and that October 12, 2006, [GX 21 at 203] and no new medications be given to Ms. Mr. I.S. said that he had previously immediately admitted into Manor Care E.M. without his knowledge. Mr. I.S. given Ms. E.M. one-half tablet of Nursing Home, where she remained further testified that prior to that time, Vicodin, but that that medicine was too until December 8, 2006. [GX 21 at 203, the hospital had no directions not to strong for her and she should continue GX 27B at 956, GX 43 at 108] give pain medication to Ms. E.M. and to take Aleve.61 [Tr. 448] that he reviewed her medication charts 62 Tr. 661. every day to make sure that she did not 58 I take official notice of information in the 2007 63 But see Section D.1. supra: Respondent receive pain medication. [Tr. 711] Mr. edition of the Physicians’ Desk Reference that prescribed Ms. E.M.’s Actos, Metformin, Lipitor, I.S. testified that he never saw any pain Valium is a brand name product containing Plavix, and Zetia, all of which appeared on Ms. diazepam, a Schedule IV controlled substance. E.M.’s prescription profile from Doc’s Drugs but not medication listed in Ms. E.M.’s hospital 59 Tr. 697. always on her home medication lists. GX 27. 60 Tr. 680. 64 Ms. E.M. did receive pain medication such as 68 Tr. 738. 61 I take official notice from the 2007 edition of Aleve and Tylenol. 69 Tr. 739. the Physicians’ Desk Reference that Aleve is a brand 65 RX 16 at 5. 70 Tr. 674. name product containing naproxen sodium, a non- 66 Tr. 787. 71 Presumably he is referring to Mr. I.S. See Tr. controlled substance. 67 Tr. 787. 656.

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charts, not even over-the-counter included the 1998 incident on previous as of July 31, 2008, the locks had been medications. [Tr. 714] renewal applications. [Tr. 618, GX 18] changed on Respondent’s Oakbrook Mr. I.S. later testified that in the thirty Investigator R. testified that on March office because he had abandoned the days before Ms. E.M. died, he reviewed 13, 2009, she and another diversion location. [Tr. 324] the charts as many times as he went to investigator served upon Respondent Respondent testified that in July 2008 the hospital and that he ‘‘left orders the DEA Order to Show Cause that gave he moved his office to 2910 Harlem with them to not introduce any new rise to this proceeding. [Tr. 323] Avenue; [Tr. 577] that the DEA would medications to my mother. * * *’’ 72 Investigator R. testified that she served not send him any address modification Mr. I.S. then testified that he always the Order to Show Cause at forms; that he could not access the gave directions to the hospital to not Respondent’s residence in Riverside, forms on-line; and that he called the give Ms. E.M. any new medications, and Illinois, because the investigators had DEA office in Chicago multiple times that he had previously told the DEA that not succeeded in serving it at his and left messages in an attempt to get a both he and Ms. E.M. were receiving registered location, and that when the change of address form. OxyContin. Mr. I.S. testified that he investigators went to Respondent’s Investigator R. testified that knew that DEA personnel could go to residence and ‘‘before we had the Respondent’s attorney filed with the the hospital to see whether Ms. E.M. opportunity to identify ourselves, DEA a request dated April 7, 2009, to received any other pain medication, so [Respondent] slammed the door in our modify Respondent’s registered he made sure that she did not get any. face when I said, ‘Dr. Herbert, I have location. [RX 15] That same day, [Tr. 719] Mr. I.S. also testified that if an something for you,’ and he said that ‘I counsel for the Government sent a letter emergency arose when Ms. E.M. was in am not Dr. Herbert. I am R.S.’ ’’ 75 to Respondent indicating that since he a hospital or nursing home, such as if Investigator R. further testified that a had already moved his office, he was she were to fall, then the hospital or few minutes later Respondent not authorized to handle controlled nursing home would call him and he telephoned her, indicating that he was substances at the new location until the would issue instructions not to give her returning one of her earlier calls. DEA approved the modification of his any pain medication. [Tr. 728] Investigator R. testified that during address. [GX 9] Investigator R. testified Respondent testified that at times, that telephone conversation she that she served that letter in person to depending on the conditions, he would arranged to serve the Order to Show Respondent’s attorney and left for omit or reduce the amount of OxyContin Cause through Respondent’s attorney Respondent a telephone message he prescribed to Ms. E.M. or change the the next day; that Respondent informed summarizing the contents of the letter. dosing schedule based on her clinical her that he had moved his registered [Tr. 331] On June 8, 2009, counsel for situation, and that if she was suffering location to 2910 South Harlem Avenue, the Government sent another letter to certain symptoms, such as from a stroke, Riverside, Illinois; [Tr. 324] that she Respondent’s attorney indicating that he would have ‘‘them’’ 73 withhold the then advised Respondent that in order the registered location modification pain medication for up to 24 hours. Mr. to modify his registered location he request had not yet been approved and I.S. testified that he did not recall needed to submit a modification request that, until it was approved, any whether Respondent ever asked him to along with a copy of his Illinois controlled substance prescriptions delay the dosage or to hold back Ms. controlled substance license showing issued by Respondent would be E.M.’s pain medication when she was the new location; and that she provided unlawful. [GX 33] Investigator R. hospitalized. him a fax number to use to send the testified that the letter was personally documents. Investigator R. further delivered to Respondent and was faxed E. Respondent’s 2006 DEA Renewal advised Respondent that he needed to to Respondent’s attorney. [Tr. 333] Application and Registered Location wait until his modification was Investigator R. further testified that On September 25, 2006, Respondent approved before he could handle she obtained from the Illinois submitted to the DEA an application to controlled substances at the new Department of Human Services renew his registration. [Tr. 318; GX 31] location. [Tr. 327] Prescription Monitoring Program, to Respondent’s registered location on that Investigator R. testified that prior to which Illinois pharmacies are required renewal application was listed as 120 March 13, 2009, the DEA had not to report information pertaining to Oakbrook Center Mall, Oakbrook, received any notification from controlled substance prescriptions, a Illinois.74 In response to question Respondent or anyone else that he had prescription profile identifying number three of the application, ‘‘Has moved his medical practice from his controlled substance prescriptions that the applicant ever had a state DEA registered location in Oakbrook to Respondent issued from June through professional license or controlled Riverside; [Tr. 326] that she had August 2009. [GX 34] During that substance registration revoked, previously made several failed attempts period, according to the prescription suspended, denied, restricted, or placed to contact Respondent at his registered profile, Respondent issued 29 controlled on probation, or is any such action address (she went to 120 Oakbrook substance prescriptions to 13 different pending?’’, Respondent provided an Center and knocked on Suite 711; people: 60 dosage units of OxyContin 80 affirmative answer. In his explanation telephoned Respondent’s office and left mg to each of seven different people, for that answer, submitted with the messages requesting a call back; and one of whom also received 30 diazepam application, Respondent identified and identified herself in those messages and 10 mg; 40 oxycodone 5 mg and 30 explained the 2003 IDFPR Consent indicated that she needed to deliver Adderal 30 mg to one person; 90 Order but did not refer to the 1998 something); but that she had never been hydrocodone 7.5 mg to one person; 10 Consent Order. [GX 31] Respondent able to locate Respondent at his hydrocodone 5 mg to one person; 30 testified that his omission of the 1998 registered location except when she phentermine 37.5 mg (via two separate order was inadvertent and that he had arranged to do so by appointment. [Tr. prescriptions written on the same day) 325] Investigator R. testified that on to one person; and 14 phentermine 37.5 72 Tr. 712. March 26, 2009, the leasing office at the mg to one person. [GX 34] 73 Tr. 656. Presumably Respondent was referring Oakbrook Center Mall informed her that Respondent testified that Investigator to Ms. E.M.’s family. R. had told him on March 13, 2009, that 74 GX 31. 75 Tr. 327. he could not handle controlled

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subscriptions but he ‘‘didn’t take it all the clinic owner. As with the 1998 both the Physician’s Desk Reference and that seriously with the word handling, Consent Order, Respondent was again a pharmacist. because I had not ordered any required to complete a course on proper The Government also argues that prescriptions, and I had no samples’’ 76 prescribing and dispensing of controlled Respondent prescribed other drugs, in but he did not ask her what she meant substances but, according to the addition to OxyContin, in Ms. E.M.’s by ‘‘handling.’’ Respondent further Government, Respondent ignored this name but that these drugs were never testified that he did not see anything education and continued to collect administered to her and were likely about prescribing until he saw the violations. diverted. The Government points out letters from Government counsel, and The Government goes on to contend that, although Respondent claims that that his attorney reviewed the letters that Respondent violated state law when he prescribed Actos and Metformin to and told him that it appeared that the he failed to disclose records demanded Ms. E.M. to treat diabetes, her other DEA did ‘‘have the power to withhold in an IDFPR subpoena. The Government treating physicians and hospital records the registration’’ 77 but he nonetheless argues that the Illinois Medical Practice indicate that she did not have diabetes continued to issue original controlled Act provides the IDFPR with the and Mr. I.S.’s testimony is again in substances prescriptions until October authority to serve an administrative conflict with Respondent’s because he 2009, ‘‘when the gravity of what was subpoena duces tecum pursuant to a testified that the only prescription drug going on here became absolutely Medical Board investigation and that he or his family administered to Ms. clear.’’ 78 [Tr. 778] the Health Insurance Portability and E.M. was OxyContin. The Government The Parties’ Contentions Accountability Act (HIPAA) provides an further contends that Plavix was also exception for the disclosure of diverted, relying again on the I. The Government information that is requested by an conflicting testimony of Respondent and The Government contends, in order of an administrative tribunal. Mr. I.S. and on the evidence that for substance, that the Deputy The Government further asserts that some time both Dr. S.D. and Respondent Administrator should revoke Respondent’s omission of his 1998 prescribed Plavix but, although Dr. S.D. Respondent’s DEA registration and that Consent Order from his DEA controlled discontinued it because of injury risks, any pending applications for renewal or substances registration renewal Respondent continued to prescribe it; modification of that registration should application was a material omission and Respondent’s patient chart for Ms. be denied, ‘‘because Respondent made because it involved the diversion of a E.M. provided no information regarding material misstatements on an Schedule II controlled substance and such prescriptions. application for registration and because because Respondent was conversant Finally, the Government asserts that his continued registration would be with the facts of the Consent Order at Respondent unlawfully prescribed inconsistent with the public interest as the immediate hearing. controlled substances from an that term is used in 21 U.S.C. 823(f).’’ 79 The Government argues that unregistered location because The Government contends that Respondent participated in a scheme Respondent failed to timely request a Respondent has had controlled that involved the diversion of modification of his registered address substances violations dating back to OxyContin. It argues that there is a lack and continued to issue controlled 1994 and resulting in consent orders of medical history to justify issuing substances prescriptions at his new with the Illinois Medical Board in 1998 prescriptions for 80 mg OxyContin to location even after receiving numerous and 2003. The 1998 consent order Ms. E.M. and that Respondent’s warnings against such action. involved the unlawful prescribing of attempts to provide justification for II. Respondent Dilaudid and required Respondent to prescribing to her are essentially post complete a course pertaining to the hoc rationalizations. Additionally, the Respondent contends that the handling of controlled substances. The Government contends, it is unlikely that omission of his 1998 state probation Government contends that this course someone from Ms. E.M.’s family was from his renewal application was not a had little effect on Respondent’s able to secretly administer OxyContin material falsification because the prescribing, that he continues to violate twice per day during the approximately omission was inadvertent. Respondent applicable law, and that he is evading 290 days that she was in a hospital or asserts that inasmuch as he accepted the the allegations rather than responding to in-patient nursing home. According to 1998 state probation related to them candidly. the Government, Respondent’s phentermine dispensing, the DEA The Government next asserts that arguments are further diminished by not should not ‘‘seek additional Respondent unlawfully received only the conflicts in testimony between retribution’’ 80 for the incident. dronabinol from a patient’s prescription, Respondent and Mr. I.S. but also Respondent argues his disclosure of the failed to properly record that receipt, between the testimony and institutional 1998 probation on previous DEA and maintained a misleading and records, as well as Respondent’s applications, the DEA and state inaccurate record of his subsequent questionable patient chart for Ms. E.M., investigators’ awareness of both the dispensing of the dronabinol. Further, which includes dates of Respondent’s 1998 and 2003 disclosures, and the the Government argues that purported treatment of her when she previous disclosures’ existence Respondent’s 2003 Consent Order with was confined to a hospital or nursing ‘‘permanently on the D.E.A. the IDFPR arose because the unlawful home. The Government contends that if computerized files,’’ ‘‘clearly [indicate] dispensing was inevitable based on the Ms. E.M. had received the OxyContin no subterfuge motive.’’ 81 arrangement between Respondent and that Respondent prescribed, she would Respondent argues that in mid-August the clinic owner and Respondent’s likely suffer withdrawal symptoms 2003, because of his 2003 state conduct therefore enabled and abetted when institutionalized, but there is no probation, he ‘‘purposely discontinued such record. Also, the Government all ordering of medications from 76 Tr. 779. 77 Tr. 777. contends, Respondent’s and Mr. I.S.’s wholesale suppliers for the purpose of 78 Tr. 778. claims regarding the time release 79 Government’s Proposed Findings of Fact, properties of generic oxycodone are not 80 Respondent’s Closing Argument Brief at 8. Conclusions of Law and Argument at 3. credible because they were refuted by 81 Respondent’s Closing Argument Brief at 3.

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dispensing medications;’’ 82 that, in the because the statute provides that ‘‘all and Dr. S.D. failed to perform opioid spring of 2005, when Investigator D.M. information indicating the identity of level tests on Ms. E.M., even though asked to inspect Respondent’s the patient shall be removed and they were free to do so and she showed controlled substance logs, Respondent deleted’’ and that because records of signs of clinical opioid usage and rarely did not recall any ordering or prescriptions he issued and to which complained of pain despite the presence dispensing of controlled substances in Illinois and the DEA have access of ‘‘multiple and obvious pain 2003 and created a handwritten log include patient names and the date the sources;’’ 88 if Respondent performed an indicating such; that later that same day, prescriptions were issued, he was opioid test on Ms. E.M. it would not he found a controlled substance log required to redact the names and disprove diversion; Mr. I.S. never filled from the first seven months of 2003 that treatment dates in order to allow Illinois the prescriptions that Drs. S.D. and V.P. showed three instances in which he had to ‘‘review the records without tying a issued to Ms. E.M. for Vicodin; and dispensed a controlled substance; and specific chart to a patient.’’ 86 Respondent had previously prescribed that Respondent’s attorney contacted Respondent further argues that he OxyContin 80 mg to Ms. C.G. and, after Investigator D.M. to notify him of that complied with the subpoena prior to Respondent stopped treating her, a Dr. log and that Investigator D.M. was given March 2009 because his attorney M. continued the same prescriptions. a copy. supplied codes revealing the names and Respondent further claims that the Respondent further contends that his Respondent obtained permission from failure of the DEA, Dr. S.D., Dr. V.P., dispensing of dronabinol did not violate his patients to provide the relevant and Dr. M.89 to test Ms. E.M. for opioids 21 U.S.C. 844(a) because he was ‘‘acting medical charts. Respondent contends and thereby exonerate Respondent, in the course of his professional that the allegation that he failed to 83 cannot be used against him because, if practice.’’ Respondent argues that he comply with the subpoenas is another they had suspicions of diversion, they had a patient who obtained dronabinol example of revenge-seeking by Chicago should have ‘‘[acted] to clear up this via a prescription issued by another because of Respondent’s testimony in charge.’’ 90 Respondent contends that physician; that the patient ‘‘lawfully the Police Board hearing; that the DEA Investigator R. conducted her transferred the medication to me * * * and Illinois are ‘‘doing the bidding of investigation with ‘‘obvious to be used for the benefit of another 87 the City of Chicago;’’ that the records prejudice’’ 91 to cast Respondent in an patient * * *;’’ and that he dispensed that were the subject of the subpoenas unfavorable light. Respondent asserts the dronabinol to another patient and should not have been available to the that Drs. S.D., P., and M. were aware recorded that action in the patient’s DEA because 225 ILCS 36 bars the DEA that Ms. E.M. had pain because they chart and in his 2003 controlled from having or using information prescribed pain medicines such as substance log. Respondent argues that compiled by Illinois; that Respondent Vicodin and morphine; that Ms. E.M.’s his actions fall under the exception in was not represented by counsel at the not taking the pain medication should § 844(a) permitting a physician to instant hearing; and that Respondent have alerted these doctors that her possess or obtain a controlled substance relied on the advice of his previous family was medicating her; that Ms. when ‘‘acting in the course of his counsel with regard to the redacted E.M.’s family asked Respondent not to professional practice’’ 84 and that there information provided in response to the communicate with her other doctors is no prohibition against obtaining subpoenas. and he complied to avoid discharge as medication from a patient to use for Respondent asserts that there is no her physician; and that Respondent another patient. evidence of diversion with regard to his ‘‘placed OxyContin on the record.’’ 92 Respondent then asserts that this prescribing OxyContin to Ms. E.M.; that entire proceeding was initiated against he treated her for more than five and a Respondent contends that the DEA him as a form of revenge by the City of half years prior to her death; that Ms. acted ‘‘capriciously and in bad faith’’ 93 Chicago because Respondent testified E.M. suffered from multiple medical by invalidating his DEA registration on behalf of Officer D.S. at the Chicago problems (including severe when he moved his office from his Police Board hearing. Respondent kyphoscoliosis, cerebral vascular registered location and by refusing to asserts that his right to due process has disease, Binswanger’s Disease, and reinstate his license pending the instant been violated because Illinois and the diabetes); that Ms. E.M. and seven other proceedings. Respondent argues that he DEA have violated the Illinois Medical patients required the prescriptions he was not permitted access to forms or Practice Act and because he was not issued them for OxyContin 80 mg other communication methods on the represented by counsel at the instant because that strength was not a high DEA Web site and that none of his calls hearing. Respondent argues that any dose for them because of the form of to Investigator R. and the DEA’s Chicago evidence that was not ‘‘generated by chronic pain from which they suffered; office were returned; that the DEA [Investigator] R. alone or directly and that he properly treated Ms. E.M. refused to transfer Respondent’s subpoenaed by D.E.A. has no place in for diabetes and inflammatory vascular registration to his new office after ‘‘the evidence at this hearing.’’ 85 disease by prescribing Actos and D.E.A. finally figured out I moved’’; 94 Respondent contends that the DEA Metformin. Respondent also asserts that that Respondent sent a letter to the DEA has failed to meet its burden of proof of Actos and Metformin are not controlled advising it of his move in lieu of the showing that he failed to comply with substances and are therefore outside the forms he ‘‘was not allowed to fill the IDFPR administrative subpoenas DEA’s jurisdiction. issued in 2005 and 2007; Respondent Respondent argues that it is not 88 Respondent’s Closing Argument Brief at 14. asserts that he provided the requested plausible that the OxyContin he 89 Although he refers to a ‘‘Dr. M.’’ in his brief, records but redacted all identifying prescribed to Ms. E.M. was diverted I presume that Respondent actually intended to because: Respondent and his patients refer to either Dr. G.M. or Dr. T.M. because there information as required by 225 ILCS 60/ was no evidence presented that Ms. E.M. was ever 22(A)(38). Respondent argues that were aware of the DEA investigation treated by a Dr. M. and the patients produced their current 90 Respondent’s Closing Argument Brief at 15. 82 Respondent’s Closing Argument Brief at 4. medications when interviewed; the DEA 91 Respondent’s Closing Argument Brief at 15. 83 Respondent’s Closing Argument Brief at 5. 92 Respondent’s Closing Argument Brief at 17. 84 Respondent’s Closing Argument Brief at 5. 86 Respondent’s Closing Argument Brief at 9. 93 Respondent’s Closing Argument Brief at 17. 85 Respondent’s Closing Argument Brief at 9. 87 Respondent’s Closing Argument Brief at 10. 94 Respondent’s Closing Argument Brief at 17.

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out’’; 95 that Respondent ‘‘essentially a valid prescription from a practitioner II. The Factors To Be Considered stopped practicing medicine’’ 96 after he acting in the course of his professional A. Renewal of Respondent’s DEA received a second letter from practice.107 A registered individual Registration Government counsel; and that the DEA practitioner is required to maintain allowed his registration to remain active records of controlled substances in 1. Material Falsification of a Renewal on its website even though it had the Schedules II through V that are Application power to ‘‘shut off [his] registration by dispensed and received, including the Respondent materially falsified his pulling it from the active list on their number of dosage units, the date of 2006 renewal application for a DEA pharmacy access Web site,’’ 97 thereby receipt or disposal, and the name, registration when he failed to disclose creating ‘‘an incident and another address, and registration number of the any information regarding his 1998 state charge against me’’ 98 that occurred for distributor.108 probation, even though he did disclose no reason other than harassment. A. Revocation of DEA Registrations his 2003 state probation. I find Respondent further claims that the cases unpersuasive Respondent’s argument counsel for the Government cited in his The Controlled Substances Act, at 21 that the omission is irrelevant due to the letter to Respondent regarding his U.S.C. 824(a), provides, insofar as DEA’s awareness of and Respondent’s change of address are not applicable in pertinent to this proceeding, that the previous disclosure of the 1998 this situation because those cases Deputy Administrator may revoke a probation: The DEA has repeatedly held involved ‘‘two meth suppliers to registration if she finds that the that ‘‘ ‘[t]he provision of truthful convenience stores, a pharmacy, and a registrant has materially falsified an information on applications is doctor whose state license had already application for registration or renewal of absolutely essential to effectuating [the] been revoked’’ 99 and Respondent,100 as registration 109 and/or if she finds that statutory purpose’ of determining a ‘‘practicing MD with no criminal the continued registration would be whether the granting of an application complaint’’ 101 does not fit into any of inconsistent with the public interest as is consistent with the public those categories. Respondent further that term is used in 21 U.S.C. 823(f).110 interest.’’ 112 A false statement is argues that the DEA had the power to material if it ‘‘has a natural tendency to B. The Public Interest Standard deactivate his controlled substance influence, or was capable of influencing, license on the DEA Web site, thereby Pursuant to 21 U.S.C. 823(f), the the decision of the decisionmaking body ‘‘shutting down [his] ability to issue any Deputy Administrator may deny an to which it was addressed.’’ 113 While controlled substances’’ 102 and that application for a DEA Certificate of the evidence must be ‘‘clear, because the DEA’s failure to do so was Registration if she determines that such unequivocal, and convincing,’’ the more harassment which was ‘‘clearly registration would be inconsistent with ‘‘ultimate finding of materiality turns on unethical if not illegal,’’ 103 Respondent the public interest. In determining the an interpretation of the substantive should not be held responsible. public interest, the Deputy law.’’ 114 The Deputy Administrator has also previously held that ‘‘[t]he Discussion and Conclusions Administrator is required to consider the following factors: explanation given by an applicant who I. The Applicable Statutory and (1) The recommendation of the has affirmatively answered a liability Regulatory Provisions appropriate state licensing board or question is * * * material because the professional disciplinary authority. public interest inquiry under section The Controlled Substances Act 303(f) requires, inter alia, that the (2) The applicant’s experience in provides that any person who dispenses Agency examine ‘[t]he applicant’s dispensing, or conducting research with (including prescribing) a controlled experience in dispensing * * * respect to controlled substances. substance must obtain a registration controlled substances,’ and its issued by the DEA in accordance with (3) The applicant’s conviction record 104 [c]ompliance with applicable State, applicable rules and regulations. ‘‘A under Federal or State laws relating to Federal, or local laws relating to separate registration shall be required at the manufacture, distribution, or controlled substances.’ ’’ 115 each principal place of business or dispensing of controlled substances. Although Respondent claims that his professional practice where the (4) Compliance with applicable State, omission of the 1998 probation from his applicant * * * dispenses controlled Federal, or local laws relating to registration renewal application was substances.’’ 105 DEA regulations controlled substances. inadvertent, that is irrelevant because provide that any registrant may apply to (5) Such other conduct which may the Government only needs to show that modify his registration to change his threaten the public health and safety. the applicant ‘‘knew or should have address but such modification shall be As a threshold matter, it should be known that the response given to the handled in the same manner as an noted that the factors specified in liability question was false,’’ not that the application for registration.’’ 106 116 section 823(f) are to be considered in the material falsification was intentional. It is unlawful for any person to disjunctive: The Deputy Administrator It is apparent that Respondent was possess a controlled substance unless may properly rely on any one or a aware of his 1998 probation because he that substance was obtained pursuant to combination of those factors, and give each factor the weight she deems 112 The Lawsons, 72 FR at 74338 (quoting Peter 95 Respondent’s Closing Argument Brief at 17. H. Ahles, 71 FR 50097, 50098 (2006)). See also 96 Respondent’s Closing Argument Brief at 17. appropriate, in determining whether a Hoxie v. DEA, 419 F.3d 477, 483 (6th Cir. 2005) 97 Respondent’s Closing Argument Brief at 17. registration should be revoked or an (‘‘Candor * * * is considered by the DEA to be an 98 Respondent’s Closing Argument Brief at 18. application for registration denied.111 important factor when assessing whether a * * * registration is consistent with the public interest.’’). 99 Respondent’s Closing Argument Brief at 18. 113 Kungys v. United States, 485 U.S. 759, 770 100 Respondent’s Closing Argument Brief at 18. 107 21 U.S.C. 844(a). (1988) (int. quotation and other citations omitted). 101 Respondent’s Closing Argument Brief at 18. 108 21 CFR 1304.03(b), 1304.22(a)(2)(ix), 114 Id. at 772 (int. quotation and other citations 102 Respondent’s Closing Argument Brief at 18. 1304.21(a), 1304.22(c), and 1304.22(a)(2)(iv). omitted). 103 Respondent’s Closing Argument Brief at 18. 109 21 U.S.C. 824(a)(1). 115 The Lawsons, 72 FR at 74338 (citing 21 U.S.C. 104 21 U.S.C. 822(a)(2). 110 21 U.S.C. 824(a)(4). 823(f)). 105 21 U.S.C. 822(e). 111 See Henry J. Schwarz, Jr. M.D., 54 FR 16,422 116 The Lawsons, 72 FR at 74339; Samuel Arnold, 106 21 CFR 1301.51. (DEA 1989). 63 FR 8687 at 8688 (1998).

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admittedly disclosed it on previous DEA immediate hearing is the result of a (a) Respondent’s Prior State Disciplinary registration applications and because he ‘‘vendetta’’ against him instigated by the Actions entered into a consent order with the City of Chicago; despite my previous In the previously discussed 1998 IDFPR and purportedly completed the rulings to the contrary, Respondent Consent Order, the then IDPR alleged required conditions. Respondent continues to assert that most of the that Respondent ‘‘may have prescribed therefore knew or should have known evidence and testimony admitted in the Dilaudid to four (4) patients under that his response to the liability instant hearing is inadmissible and questionable circumstances’’; 120 question was false. should not be considered; and Respondent did not admit or deny the Respondent’s omitted 1998 probation Respondent continues to assert that he allegations but did agree not to contest was related to Respondent’s handling of was ‘‘not afforded a capable them. As a condition of his probation, Dilaudid, which is directly related to 119 attorney’’ although he was at any Respondent was required to complete a the second and fourth factors listed in time free to procure the assistance of remedial education course in controlled 21 U.S.C. 823(f). Regardless of whether counsel, was notified of such, and he substance management. In his Closing DEA and Illinois had prior knowledge of did not request a postponement of the Argument Brief, Respondent asserts that that probation, the omission of an instant hearing prior to its there was never any finding that the offense related to the handling of a 110 commencement in order to do so. probation came about as a result of schedule II controlled substance would unlawful prescribing of Dilaudid, and in certainly have a natural tendency to B. The Public Interest Standard the instant hearing Respondent testified influence the decision of whether to As noted above, Respondent that his actions related to the incident grant Respondent’s application when submitted a request to modify his were lawful. considering the applicant’s experience registration, which is still pending. In the 2003 Consent Order the IDFPR in handling controlled substances and Pursuant to 21 CFR 1301.51, a request alleged, and Respondent admitted, that compliance with applicable State, for a modification shall be handled in he failed to supervise an unlicensed Federal, and local laws relating to the same manner as an application for employee. In the instant hearing and in controlled substances. I thus conclude registration. Pursuant to 21 U.S.C. his Closing Argument Brief, however, that Respondent’s failure to disclose the 823(f), the Deputy Administrator may Respondent asserts that he was the 1998 state probation was a material deny an application for a DEA employee and that he was unable to misrepresentation because it ‘‘ha[d] a Certificate of Registration if she prevent the clinic owner from removing natural tendency to influence the * * * determines that such registration would the phentermine from Respondent’s decision’’ of the DEA as to whether to be inconsistent with the public interest, locked bag, but that he accepted the grant his application for a new consistent with the five factors probation because he should not have registration. Under DEA precedent, a described above. left the bag at the clinic when he was material falsification ‘‘provides an In light of the circumstances of this not there. As a condition of his independent and adequate ground for case, I will consider Respondent’s probation, Respondent was required to denying’’ Respondent’s application.117 compliance with applicable law and complete ten hours of continuing 2. Candor and Admission of Fault experience in handling controlled education in the area of prescribing and substances together below. The DEA properly considers the dispensing controlled substances. I find candor of the physician and his 1. The Recommendation of the that Respondent’s conduct leading to forthrightness in assisting in the Appropriate State Licensing Board the 2003 Consent Order and his apparent lack of understanding of investigation and admitting fault It is undisputed that Respondent is important factors in determining proper methods, even after completing currently licensed as a physician and to several hours of controlled substance whether the physician’s registration handle controlled substances in Illinois. should be revoked.118 I find that handling education, weigh in favor of a Inasmuch as Respondent is currently finding that his continued registration Respondent has repeatedly failed to authorized to handle controlled accept responsibility for his would be inconsistent with the public substances in Illinois, I find that this interest. misconduct. This failure is evidenced factor weighs in favor of a finding that by Respondent’s consistent denial of Respondent’s registration would not be (b) Respondent’s Receipt and any wrongdoing: Respondent asserts inconsistent with the public interest. Dispensing of Marinol that his actions leading to his 1998 state However, I note that state licensure is a I find no merit to Respondent’s probations were lawful even after he necessary but not sufficient condition assertions that he lawfully received agreed to enter into a consent order with for DEA registration, and I therefore find Marinol from a patient and also lawfully the IDFPR; with regard to his 2003 state that this factor is not dispositive. provided it to another patient. Pursuant probation, Respondent asserts (1) that to 21 U.S.C. 844(a), ‘‘[i]t shall be his only blame was in leaving his bag, 2. Respondent’s Experience in Handling unlawful for any person knowingly or without a secure lock, at the clinic when Controlled Substances and Compliance intentionally to possess a controlled he was not present and that he clearly With Applicable State, Federal, or Local substance unless such substance was ‘‘could not prevent the owner’s actions Laws Relating to Controlled Substances obtained directly, or pursuant to a valid once I left medicine (Phentermine) in I conclude that Respondent’s prescription or order, from a my locked bag’’ and (2) that the DEA experience in handling controlled practitioner, while acting in the course should not ‘‘seek additional retribution’’ substances and Respondent’s of his professional practice * * *’’ with regard to the incident because he compliance with applicable State, except as otherwise authorized by the accepted the state probation; Federal, or local laws relating to Controlled Substances Act. Respondent repeatedly claims that the controlled substances weighs in favor of Respondent’s interpretation of 21 a finding that his registration would not 117 The Lawsons, 72 FR at 74338; Cf Bobby Watts, U.S.C. 844(a) is mistaken; Respondent 58 FR 46997 (1993). be consistent with the public interest. apparently believes that, because he is 118 Hoxie v. DEA, 419 F.3d 477, 483 (6th Cir. 2005). 119 Respondent’s Closing Argument Brief at 10. 120 GX 7 at 2.

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a practitioner who was purportedly that are dispensed and received, (c) IDFPR Administrative Subpoenas acting in the course of his professional including the number of dosage units, I find that the Government has not practice at the time he received the the date of receipt or disposal, and the provided sufficient evidence to indicate Marinol, this section permitted him to name, address, and registration number that Respondent violated state law when receive the Marinol from a patient. of the distributor. In his brief, he failed to comply with a subpoena Respondent, however, fails to recognize Respondent asserts that he has a ‘‘ ‘non duces tecum issued by the IDFPR that 21 U.S.C. 844(a) requires that the monetary’ receipt supplied by Mr. requesting copies of patient records. controlled substance be obtained J.W.’’ 123 The only document admitted The Government correctly asserts that directly or pursuant to a prescription into evidence that relates to the receipt the IDFPR has the authority to from a practitioner, not provided to a of the Marinol, however, is an ‘‘subpoena the medical and hospital practitioner acting in the course of his affidavit 124 with a signature reading records of individual patients of’’ 125 professional practice. Respondent has ‘‘J.W.’’ and dated May 2, 2008, nearly licensed physicians. Respondent, made no assertion and provided no five years after Respondent purportedly however, is essentially correct in his evidence that Mr. J.W., from whom received and subsequently dispensed assertion that all information provided Respondent admittedly obtained the the Marinol. Not only is the general pursuant to such a subpoena and which Marinol, was a practitioner 121 acting in authenticity of that document suspect, indicates the identity of the patient, the course of his professional practice or but it also can not reasonably be viewed shall be removed and deleted prior to that Mr. J.W. possessed the proper DEA as a proper record of receipt, submission to the disciplinary board or registration to dispense or distribute particularly considering that it was department. Respondent further controlled substances, as required by 21 prepared nearly five years after the correctly asserts that the term ‘‘all U.S.C. 822(a)(1) and 21 CFR event and that Respondent previously information indicating the identity of 1307.11(a)(1),122 when he provided claimed to have no recollection of the the patient’’ includes patient names and Respondent with the Marinol. Pursuant details of obtaining the Marinol. dates of treatment because the IDFPR to 21 CFR 1307.12, however, a person in Respondent also entered into evidence a and the DEA have the ability to match lawful possession of a controlled controlled substances log dated January that information with prescription substance may, without a registration to 2003 through August 14, 2004, records. Respondent also testified at the do so, distribute such substance to the indicating that on July 21, Respondent instant hearing that disclosure of the person from whom it was obtained or to dispensed 8 Marinol 10mg to Officer requested information, without first the manufacturer of the substance. D.S., which, despite the questionable obtaining patient permission, would Respondent, however, testified at a circumstances under which it was violate the federal Health Insurance police board hearing that the Marinol presented to the IDFPR investigator, Portability and Accountability Act likely came from the prescription of may arguably be considered a record of (HIPAA). another doctor, not Respondent. Mr. dispensing. Although neither party has submitted J.W., therefore, did not obtain the Accordingly, I find that Respondent’s any relevant case law on the topic, the Marinol directly from or pursuant to a receipt of the Marinol was unlawful Illinois Supreme Court has provided prescription from Respondent and there under 21 U.S.C. 844(a) and 21 CFR some guidance regarding the disclosure is no evidence indicating that Mr. J.W. 1304.03(b), 1304.21(a), 1304.22(c), of confidential patient information possessed a DEA registration to 1304.22(a)(iv), 1304.22(a)(2)(ix), pursuant to an administrative subpoena. distribute or dispense controlled 1307.11, and 1307.12 because In People v. Manos, the court held that substances so Respondent was Respondent did not receive the Marinol the Illinois legislature did not expressly subsequently not authorized to receive directly from or pursuant to a provide for the investigatory power the Marinol from Mr. J.W. under 21 CFR prescription or order from a practitioner provided to the IDFPR to override the 1307.12. acting in the course of his professional physician-patient privilege as codified Respondent apparently recognizes, as practice or from a person who was in in 735 ILCS 5/8–802. The IDFPR, indicated in his Closing Argument Brief, lawful possession of and originally therefore, cannot require a physician that he is required to record the receipt obtained the Marinol from Respondent, under an administrative investigation to and subsequent dispensing of controlled or as otherwise authorized by the produce confidential patient medical substances. Pursuant to 21 CFR Controlled Substances Act, and because records unless one of the statutory 1304.03(b), 1304.22(a)(2)(ix), 1304.21(a), the receipt of the Marinol was not exceptions set forth in 735 ILCS 5/8–802 1304.22(c), and 1304.22(a)(2)(iv), a properly recorded. Additionally, as the applies.126 Additionally, the court registered individual practitioner is Government points out, Respondent adopted a finding that the mere deletion required to maintain records of testified in the instant hearing that he of patient names and identifying controlled substances in Schedules II–V has also in the past provided to patients information does not remove the records Tylenol III and Tylenol IV that he had from protection under the physician- 121 ‘‘Practitioner’’ is defined in 21 U.S.C. 802(21) patient privilege when the department as: ‘‘a physician, dentist, veterinarian, scientific obtained from other patients to whom it investigator, pharmacy, hospital, or other person had been prescribed by other that issued the subpoena knows the licensed, registered, or otherwise permitted, by the physicians. I find that Respondent’s names of the patients whose records United States or the jurisdiction in which he unlawful receipt of a Schedule III were sought, those patients are not practices or does research, to distribute, dispense, parties to the investigatory proceedings, conduct research with respect to, administer, or use controlled substance and failure to in teaching or chemical analysis, a controlled properly record such receipt weigh in and matching the records to the names substance in the course of professional practice or favor of a finding that Respondent’s would not be difficult even if the names research.’’ continued registration would be and other identifying information were 122 21 CFR 1307.11(a)(1) generally provides that a redacted.127 I note that at the time that practitioner who is registered to dispense a inconsistent with the public interest. controlled substance may distribute a quantity of such substance to another practitioner for the 123 Respondent’s Closing Argument Brief at 5. 125 225 ILCS 60/38. purpose of general dispensing to patients provided 124 Although the document is signed, it is neither 126 People v. Manos, 202 Ill. 2d 563 (2002). that both the distributing and the receiving witnessed nor notarized, and when the document 127 People v. Manos, 202 Ill. 2d 563 (2002) (citing practitioners record the distribution in accordance was admitted, no witness was presented to verify Parkson v. Central DuPage Hospital, 105 Ill. App. with 21 CFR 1304.22(c). the document’s authenticity. 3d 850 (1982)).

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the IDFPR issued the subpoenas to burden of proof that Respondent The record demonstrates that even Respondent on June 15, 2005, and June violated state law in failing to comply though Respondent moved from his 20, 2007, no applicable exception with a subpoena duces tecum issued by registered address to a new location in applied under 735 ILCS 5/8–802.128 An an administrative tribunal. July 2008, he failed to notify the DEA of exception for subpoenas issued I note that I have already found no this change until at least April 7, pursuant to the Medical Practice Act is merit to Respondent’s argument that the 2009,135 after a DEA diversion now included in 735 ILCS 5/8–802,129 patient files and the testimony of investigator was unable to locate however, that exception did not become Investigator D.M. in the immediate Respondent at his registered address effective until August 27, 2007 and is hearing are inadmissible in this and eventually located him at his therefore not applicable. proceeding and should not be available residence. Additionally, Respondent I agree with the Government’s to the DEA.132 Because Respondent is admittedly continued to handle assertion that Respondent’s argument likely to present this argument again, controlled substances not only while that compliance with the subpoenas however, I will add that, in addition to that modification was pending but after would violate HIPAA is baseless the reasons previously stated in my the DEA had notified him in writing at because the subpoena was issued as an Memorandum to Parties and Rulings, least two times, and Respondent’s own order of an administrative tribunal.130 dated February 12, 2010 and attorney confirmed at least once, that he Nonetheless, I further find that because Memorandum to Parties and Ruling, was not permitted to do so. of the Illinois Supreme Court decision dated April 9, 2010, the section of this Respondent’s argument that the DEA in Manos, it does not matter whether the opinion regarding the IDFPR subpoena actively prevented him from submitting disclosure would violate HIP AA duces tecum cannot provide the basis a request for modification of his because it was not disclosable under the for an argument that the relevant patient registered location is unconvincing, physician-patient privilege law in effect files are inadmissible because particularly considering that in Illinois at the time of the issuance of Respondent obtained permission to Respondent failed to provide any 131 the subpoena. Accordingly, I find provide the files, thereby waiving the evidence indicating he ever attempted that the Government has not met its physician-patient privilege. to submit the request.136 (d) Prescribing From an Unregistered Respondent’s act of continuing to 128 The exceptions in effect during the applicable handle controlled substances after period are as follows: ‘‘* * * (1) in trials for Location numerous warnings shows a flagrant homicide when the disclosure relates directly to the I find that Respondent violated fact or immediate circumstances of the homicide, disregard for the requirements of the federal law by prescribing controlled (2) in actions, civil or criminal, against the law governing the handling of substances from his new location healthcare practitioner for malpractice * * *, (3) controlled substances. Additionally, with the expressed consent of the patient * * *, (4) without a valid registration. As in all actions brought by the patient, his or her provided in 21 U.S.C. 822(e), ‘‘[a] Respondent not only refuses to accept personal representative, a beneficiary under a separate registration shall be required at any blame whatsoever for failing to policy of insurance, or the executor or administrator properly notify the DEA of his change of his or her estate wherein the patient’s physical each principal place of business or or mental condition is an issue * * *, (4.1) in all professional practice where the of address but also claims that the DEA actions brought against the patient, his or her applicant * * * dispenses controlled is responsible for him continuing to personal representative, a beneficiary under a substances.’’ Additionally, pursuant to issue prescriptions for controlled policy of insurance, or the executor or administrator substances and for pharmacies of his or her estate wherein the patient’s physical 21 CFR 1301.51, any registrant may or mental condition is an issue, (5) upon an issue apply to modify his registration to continuing to fill those prescriptions. I as to the validity of a document as a will of the change his address but such therefore find that Respondent’s failure patient, (6) in any criminal action where the charge modification shall be handled in the to comply with federal law regarding is either first degree murder by abortion, attempted modification of his controlled abortion or abortion, (7) in actions, civil or criminal, same manner as an application for arising from the filing of a report in compliance registration. Unlike a renewal substances registration and his with the Abused and Neglected Child Reporting Act application, which, when timely filed, additional refusal to accept [325 ILCS 5/1 et seq.], (8) to any department, responsibility for his actions strongly agency, institution or facility which has custody of remains in effect past the registration the patient pursuant to State statute or any court expiration date while the DEA makes a support a finding that Respondent’s order of commitment, (9) in prosecutions where final determination on the continued registration would be written results of blood alcohol tests are admissible application,133 a request for a inconsistent with the public interest. pursuant to Section 11–501.4 of the Illinois Vehicle Code [625 ILCS 5111–501.4], (10) in prosecutions modification is treated as a new (e) Diversion of OxyContin where written results of blood alcohol tests are application; a registrant, therefore, is not admissible under Section 5–lla of the Boat authorized to dispense or prescribe I find that the Government has met its Registration and Safety Act [625 ILCS 45/5–11a], or controlled substances at his new burden in establishing diversion by a (11) in criminal actions arising from the filing of a location pending approval of a preponderance of the evidence and the report of suspected terrorist offense in compliance Government has also shown that even if with Section 29D–10(p)(7) of the Criminal Code of modification request to change a DEA 1961 [720 ILCS 5/29D-l0]. registered address.134 Respondent was unaware of the 129 ‘‘No physician or surgeon shall be permitted diversion, Respondent was involved in to disclose any information he or she may have 132 See Memorandum to Parties and Rulings, a scheme that created the opportunity acquired in attending any patient in a professional dated February 12, 2010 and Memorandum to for diversion of a Schedule II controlled character, necessary to enable him or her Parties and Ruling, dated April 9, 2010. substance. professionally to serve the patient, except only (Respondent relied on 225 ILCS 60/22(A)(5) and 60/ * * * (12) upon the issuance of a subpoena 23(B) to exclude the testimony of IDFPR pursuant to Section 38 of the Medical Practice Act Investigator D.M. and to exclude all evidence 135 RX 15. of 1987 [225 ILCS 60/38]. * * *’’ 735 ILCS 5/8–802. relating to Respondent’s dispensing of Marinol to 136 Respondent submitted several documents with 130 See 45 CFR 164.512(e)(1), (2), and (3). D.S. I denied Respondent’s request and found that his brief, marked as ‘‘Brief Exhibits.’’ I have not 131 I also find no merit to Respondent’s argument Section 60/23(B)’s constraint on the Medical considered these documents in reaching my that he relied on the advice of counsel when he Disciplinary Board’s ability to further disclose findings and conclusions, however, because they provided the redacted patient files to the IDFPR. reported information is limited to the were not offered or admitted into evidence. See 21 Respondent has cited no relevant law to indicate confidentiality of medical reports and committee CFR 1316.57. Respondent also makes several that reliance on counsel would relieve him of reports as otherwise protected by law.) references to testimony that was offered in related responsibility for failing to comply with a 133 See 5 U.S.C. 558(c). state proceedings; that information also will not be subpoena. 134 See John J. Fotinopoulos, 72 FR 24602 (2007). considered here for the same reason.

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The DEA has held that a finding that exception of the last three or so weeks that Respondent regularly saw Ms. E.M. a practitioner is reckless or negligent in of Ms. E.M.’s life when Mr. I.S. claims as a patient; she therefore did not use ignoring the warning signs that a patient that he prohibited the facility from controlled substances under his is either personally abusing controlled providing any type of pain medication supervision. Mr. I.S.’s testimony substances or diverting them to others is to her). combined with the discrepancies an indication that the practitioner’s Respondent ignored the warning signs between Respondent’s own records for registration would be inconsistent with of diversion by assisting in the family’s Ms. E.M. and the admission and the public interest; misconduct that is scheme to conceal Ms. E.M.’s treatment dates for Ms. E.M. from OxyContin prescriptions and by failing ‘‘unintentional, innocent or devoid of hospice and treating hospitals indicate to test Ms. E.M.’s opioid levels to ensure improper motivation * * * creates the that it is unlikely that Respondent saw that she actually received the drug. I opportunity for diversion and could Ms. E.M. as a patient as frequently as he 137 find that Respondent was at least justify revocation or denial.’’ claims. Respondent even admitted that The evidence in this case clearly reckless or negligent in ignoring the he relied on reports from Ms. E.M.’s demonstrates that Respondent warning signs of diversion with regard family to determine the course of her knowingly and willingly participated in to the OxyContin he prescribed to Ms. a scheme to deceive other healthcare E.M. and his conduct, intentional or not, treatment. Additionally, Respondent providers with regard to Ms. E.M.’s use thereby created the opportunity for knowingly participated in a scheme to of a Schedule II controlled substance diversion. conceal Ms. E.M.’s alleged use of and was at the very least reckless or I find that Respondent did not issue OxyContin from her treating physicians negligent in ignoring the possibility of OxyContin prescriptions for a legitimate and other caregivers. Such actions diversion and thereby created the medical purpose while acting in the certainly do not ‘‘ensure patients use opportunity for diversion of OxyContin. scope of his professional practice. While controlled substances under the The record establishes that Respondent I agree with Respondent that the DEA’s supervision of a doctor,’’ as explained willingly agreed to continue to treat and governing regulations do not require by the Supreme Court. Because Ms. E.M. to prescribe controlled substances to him to perform a physical examination was not using OxyContin under the Ms. E.M. and to refrain from revealing of a patient before providing each supervision of Respondent and his involvement to anyone other than prescription, 21 CFR 1306.04(a), Respondent’s actions contributed to the requires that controlled substance Ms. E.M.’s family, even while Ms. E.M. prevention of her other physicians to prescriptions be issued for a legitimate was institutionalized and while she was supervise her use, Respondent did not medical purpose by a practitioner acting being treated by other physicians. The issue OxyContin prescriptions to Ms. numerous inconsistencies between the in the scope of his professional practice. The evidence also does not support a E.M. for a legitimate medical purpose testimonies of Mr. I.S. and Respondent finding that Respondent issued while acting in the scope of his lead me to believe that neither is a OxyContin prescriptions to Ms. E.M. professional practice. I therefore find credible witness with regard to Ms. pursuant to 21 CFR 1306.12(b)(1), that the prescriptions that Respondent E.M.’s medication and treatment and 1306.05, or 1306.04(a). What constitutes issued to E.M. for OxyContin were not raises the questions of whether bona fide ‘‘medical practice’’ by a issued for a legitimate medical purpose. Respondent actually even treated Ms. physician dispensing narcotic drugs E.M. and whether she received Accordingly, I find that Respondent must be determined upon consideration OxyContin. was at least reckless or negligent in of the evidence and attending The evidence shows that each month ignoring the warning signs of diversion circumstances.139 The Supreme Court of for several years, Respondent provided and issued prescriptions for other than the United States clarified this issue in prescriptions for 60 OxyContin 80 mg a legitimate medical purpose and that Gonzales v. Oregon: 140 tablets to three members of the same this conduct weighs in favor of a finding household, including Ms. E.M., who Under DEA regulations, a prescription for that Respondent’s registration would was over 90 years old and purportedly a controlled substance is not ‘‘effective’’ not be consistent with the public unless it is ‘‘issued for a legitimate medical frail. As the Government points out, Ms. purpose by an individual practitioner acting interest. E.M. was confined to a hospital or in the usual course of his professional 3. Respondent’s Conviction Record nursing home for a total of practice.’’ 21 CFR 1306.04(a). This regulation approximately 290 days during that further provides that ‘‘an order purporting to There is no evidence that Respondent period. be a prescription issued not in the usual has ever been convicted under any I first find it difficult to believe that course of professional treatment * * * is not a prescription within the meaning and intent federal or state laws relating to the Ms. E.M.’s family was able to administer manufacture, distribution, or dispensing OxyContin twice a day for such an of [21 U.S.C. 829] and * * * the person issuing it, shall be subject to the penalties of controlled substances. I therefore find expansive time without ever arousing provided for violations of the provisions of that this factor, although not dispositive, the suspicion of the facility staff. I also law related to controlled substances.’’ Id. As weighs against a finding that his find it difficult to believe that for each the Supreme Court explained, ‘‘the of those approximately 290 days, prescription requirement * * * ensures continued registration would be although Ms. E.M. was purportedly patients use controlled substances under the inconsistent with the public interest. supervision of a doctor so as to prevent receiving a total of 160 mg of OxyContin 4. Other Conduct per day, two doses of 80 mg each,138 Ms. addiction and recreational abuse. As a corollary, [it] also bars doctors from peddling E.M.’s family was able to prevent the to patients who crave the drugs for those In light of my findings discussed possibility of an overdose simply by prohibited uses.’’ (Emphasis added). above, I find it unnecessary to reviewing her daily charts (with the determine whether Respondent’s Contrary to Respondent’s assertions, prescribing of various noncontrolled the evidence does not support a finding 137 See Paul J. Caragine, Jr., 63 FR 51592 (DEA substances to Ms. E.M. should weigh in 1998). favor of a finding that his continued 138 According to the Physician’s Desk Reference, 139 Moore v. U.S., 128 F.2d 887 (1942). 80 mg is the second-highest dosage of OxyContin 140 126 S.Ct. 904, 925 (2006) (citing Moore, 423 registration would be inconsistent with available in a single pill. U.S. 122, 135 (1975)). the public interest.

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Conclusion Dated: August 16, 2011. DEPARTMENT OF JUSTICE Joseph T. Rannazzisi, I conclude that Respondent’s Deputy Assistant Administrator, Office of Drug Enforcement Administration registration with the DEA would be Diversion Control, Drug Enforcement Harold Edward Smith, M.D.; inconsistent with the public interest. Administration. Revocation Of Registration Recommended Decision [FR Doc. 2011–22088 Filed 8–29–11; 8:45 am] BILLING CODE 4410–09–P On April 17, 2009, the Deputy I recommend that Respondent’s Assistant Administrator, Office of controlled substances registration be Diversion Control, Drug Enforcement revoked and his application for renewal DEPARTMENT OF JUSTICE Administration, issued an Order to and modification of his DEA registration Show Cause to Harold Edward Smith, be denied. Drug Enforcement Administration M.D. (Respondent), of Mt. Dora, Florida. Dated: June 15, 2010. The Show Cause Order proposed the Manufacturer of Controlled revocation of Respondent’s DEA Mary Ellen Bittner, Substances; Notice of Registration Certificate of Registration, BS4681979, Administrative Law Judge. and the denial of any pending [FR Doc. 2011–22093 Filed 8–29–11; 8:45 am] By Notice dated April 15, 2011, and applications to renew or modify the BILLING CODE 4410–09–P published in the Federal Register on registration, on the grounds that April 27, 2011, 76 FR 23627, Cedarburg Respondent had materially falsified Pharmaceuticals, Inc., 870 Badger various applications for his DEA DEPARTMENT OF JUSTICE Circle, Grafton, Wisconsin 53024, made registration and had committed acts application by letter to the Drug which render his registration Drug Enforcement Administration Enforcement Administration (DEA) to inconsistent with the public interest. be registered as a bulk manufacturer of Show Cause Order at 1 (citing 21 U.S.C. Importer of Controlled Substances; 4–Anilino-N-phenethyl-4–Piperidine 824(a)(1) & (4)). Notice of Registration (8333), a basic class of controlled The Show Cause Order alleged that substance listed in schedule II. Respondent has ‘‘a documented By Notice dated June 7, 2011, and substance abuse history dating back as The company plans to use this published in the Federal Register on far as 1982,’’ when he ‘‘entered June 16, 2011, 76 FR 35241, Wildlife controlled substance in the treatment for alcohol and controlled Laboratories, 1401 Duff Drive, Suite 400, manufacturer of another controlled substance abuse.’’ Id. The Order alleged Fort Collins, Colorado 80524, made substance. that on April 3, 1985, Respondent application by renewal to the Drug No comments or objections have been entered into a consent order with the Enforcement Administration (DEA) to received. DEA has considered the Georgia Board of Medical Examiners be registered as an importer of factors in 21 U.S.C. 823(a), and (Georgia Board) based on his ‘‘chemical Etorphine Hydrochloride (9059), a basic determined that the registration of dependency,’’ which placed him on class of controlled substance listed in Cedarburg Pharmaceuticals, Inc., to probation for four years and imposed schedule II. manufacture the listed basic class of various conditions including that he The company plans to import the controlled substance is consistent with ‘‘abstain from the consumption of listed controlled substance for sale to its the public interest at this time. DEA has alcohol or controlled substances,’’ undergo random drug testing, and customers. investigated Cedarburg Pharmaceuticals, Inc., to ensure that the company’s ‘‘relinquish’’ his controlled substance No comments or objections have been registration is consistent with the public privileges. Id. The Order then alleged received. DEA has considered the interest. The investigation has included that in June 1990, Respondent tested factors in 21 U.S.C. 823(a) and 952(a) positive for cocaine and that on October inspection and testing of the company’s and determined that the registration of 10, 1990, he ‘‘entered into an Interim physical security systems, verification Wildlife Laboratories to import the basic Consent Order’’ with the Georgia Board of the company’s compliance with state class of controlled substance is under which his medical license was and local laws, and a review of the consistent with the public interest and suspended and he was ordered (1) Not company’s background and history. with United States obligations under to practice medicine, (2) not to use his Therefore, pursuant to 21 U.S.C. 823(a), international treaties, conventions, or DEA registration, and (3) ‘‘to participate and in accordance with 21 CFR 1301.33, protocols in effect on May 1, 1971. DEA in a program for impaired physicians.’’ the above named company is granted has investigated Wildlife Laboratories to Id. at 2. registration as a bulk manufacturer of ensure that the company’s registration is Next, the Show Cause Order alleged the basic class of controlled substance consistent with the public interest. The that during 1999 and 2000, Respondent listed. investigation has included inspection issued prescriptions for hydrocodone to and testing of the company’s physical Dated: August 16, 2011. J.R.S. and L.L.S., and had failed to maintain the ‘‘records of any security systems, verification of the Joseph T. Rannazzisi, examinations, diagnoses, treatment[s] or company’s compliance with State and Deputy Assistant Administrator, Office of * * * drugs prescribed to these local laws, and a review of the Diversion Control, Drug Enforcement individuals as required by Section Administration. company’s background and history. 458.331(1)(q) of the Florida statutes.’’ Id. Therefore, pursuant to 21 U.S.C. 952(a) [FR Doc. 2011–22089 Filed 8–29–11; 8:45 am] The Order further alleged that based on and 958(a), and in accordance with 21 BILLING CODE 4410–09–P this conduct, Respondent ‘‘entered into CFR 1301.34, the above named company a Consent Agreement with the’’ Florida is granted registration as an importer of Board of Medicine, which required him the basic class of controlled substance to pay a fine of $5,000, desist ‘‘from listed. prescribing to family members’’ and to

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take ‘‘a course on the proper prescribing the issuance of this Final Order. See 5 would ‘‘not engage in the practice of of [a]busable [d]rugs.’’ Id. (int. U.S.C. 558(c). medicine or be authorized to utilize his quotations omitted). DEA registration for controlled The State Proceedings Against The Show Cause Order further alleged substances’’; and that he would not Respondent that on February 16, 2007, the Florida resume practicing medicine or use his Board indefinitely suspended In April 1983, Respondent, who was DEA registration ‘‘without the prior Respondent’s medical license ‘‘based in then licensed in Arkansas and written approval of the Board.’’ Id. at 3 part’’ on his ‘‘admission of’’ having Tennessee, was discharged from an & 8. Respondent also agreed to ‘‘remain ‘‘relapse[d] on crack cocaine’’ and impaired physicians program. in treatment,’’ to ‘‘abide by all ‘‘failure to submit to a urine screen Thereafter, Respondent applied for a conditions of his treatment/aftercare while under contract with the Board’s Georgia medical license. On April 17, program,’’ and to submit ‘‘quarterly impaired physicians’ program.’’ Id. The 1985, Respondent entered into a reports on his mental/physical Order then alleged that on June 26, Consent Order with the Georgia Board, condition and progress in 2007, the Florida Board reinstated which noted that he had ‘‘completed a rehabilitation.’’ Id. at 3. Moreover, as a Respondent’s medical license ‘‘subject treatment program for chemical condition of the Board’s lifting of the to several probationary terms.’’ Id. dependency.’’ Consent Order at 1, In re suspension (after he completed Finally, the Show Cause Order alleged Harold Edward Smith, Jr., M.D., No. treatment and executed an aftercare that ‘‘[o]n April 22, 2002, February 28, 91328–85 (Ga. Bd. Med. Exam’rs, April contract), Respondent was required to 2005, and again on January 31, 2008,’’ 17, 1985). Pursuant to the Consent submit: (1) A certification by his Respondent had ‘‘submitted Order, the Georgia Board issued monitoring physicians that he had applications for renewal’’ of his DEA Respondent a medical license and ‘‘successfully completed treatment’’ and registration. Id. The Order alleged that placed him on probation for four years ‘‘is able to resume the practice of each of these applications was subject to several conditions. Id. at 2–4. medicine with reasonable skill and materially false because Respondent The conditions included that he safety,’’ (2) a plan to return to practice failed to disclose the various sanctions ‘‘completely abstain from the under a ‘‘physician who would actively imposed on his state licenses by the consumption of alcohol or controlled supervise [his] practice,’’ and (3) ‘‘a Georgia and Florida Boards, as well as substances, except as prescribed by a summary of continuing education the previous ‘‘surrenders’’ of his DEA duly licensed practitioner for a activity in the last year.’’ Id. at 4–5. registration. Id. legitimate purpose,’’ that he ‘‘undergo At some point, Respondent moved to On May 8, 2009, the Show Cause random alcohol/drug screening at his Florida and obtained a medical license Order, which also notified Respondent own expense,’’ that he ‘‘not possess a from the Florida Department of Health of his right to request a hearing on the DEA permit or any triplicate (DOH). On October 18, 2002, the DOH allegations (or to submit a written prescription forms or Federal order filed an Administrative Complaint statement in lieu of a hearing) and the forms,’’ and that he relinquish his right against him. See Administrative consequences if he failed to do so, Id. (until further order by the Board) ‘‘to Complaint, Department of Health v. at 2, was served on Respondent by prescribe, administer, dispense, order or Smith, No. 2000–12434 (Fla. DOH). The certified mail to him at the address possess (except as prescribed, Complaint alleged that ‘‘[f]rom on or given on his most recent application as administered or dispensed to [him] by about July 24, 1999 to on or about his registered location. Since that date, another person authorized by law to do August 14, 2000,’’ Respondent wrote neither Respondent, nor any person so) controlled substances.’’ Id. hydrocodone prescriptions for J.R.S., purporting to represent him, has filed a Respondent was also required to and that ‘‘[f]rom on or about January 14, request for a hearing or submitted a ‘‘submit quarterly reports regarding his 2000 to on or about June 30, 2000,’’ written statement in lieu of a hearing. physical and mental condition to the Respondent wrote hydrocodone As thirty days have now passed since Board * * * including a report on any prescription for L.L.S., both of whom Respondent was served with the Order medication being prescribed to’’ him. Id. were alleged to be related to him. Id. at to Show Cause, I find that Respondent at 3. In April 1989, Respondent was 2. The Complaint further alleged that has waived his right to a hearing. See 21 ‘‘discharged from probation.’’ Interim Respondent ‘‘did not keep records of CFR 1301.43(d). I therefore enter this Consent Order for Suspension of [his] examinations, diagnoses, treatment Final Order without a hearing based on License During Treatment at 1, In re or * * * drugs prescribed’’ for either relevant evidence contained in the Harold Edward Smith, Jr., M.D., No. 90– person. Id. Investigative Record. See Id. at 499 (Ga. Bd. Med. Exam’rs, Oct. 10, On June 18, 2003, Respondent entered 1301.43(e). I make the following 1990). into a Consent Agreement with the findings. In June 1990, physicians at DOH. Consent Agreement at 6–7. Respondent’s place of employment Therein, Respondent neither admitted Findings requested that he provide a specimen nor denied the allegations. Id. at 2. Respondent currently holds DEA for drug testing. Id. at 2. The specimen However, he agreed to pay a fine of Certificate of Registration BS4681979, tested positive for cocaine. Id. $2,000, to reimburse the DOH for its which authorizes him to dispense Subsequently, the Georgia Board costs in the amount of $4,776.58, and to controlled substances in schedules II ordered Respondent to ‘‘undergo a 72- complete a course entitled ‘‘Protecting through V as a practitioner, at the hour inpatient mental/physical Your Medical Practice, Clinical, Legal registered address of 2875 S. Orange examination evaluation’’ and thereafter, and Ethical Issues in Prescribing Ave., Suite 500–600, Orlando, Florida. Respondent entered ‘‘treatment for Abusable Drugs.1 ’’ Id. at 2–4. While Respondent’s registration was to relapse of chemical dependence.’’ Id. On August 18, 2003, the Florida expire on February 29, 2008, on On October 10, 1990, Respondent Board of Medicine rejected the Consent February 7, 2008, he submitted an entered into an Interim Consent Order application to renew his registration. In with the Georgia Board pursuant to 1 The Order further noted that ‘‘[t]he terminal accordance with the Administrative which he agreed that his license would condition of Respondent’s mother understandably contributed to poor judgment for the time he Procedure Act, Respondent’s be ‘‘suspended until further order of the provided prescriptions for her.’’ Consent Agreement registration remains in effect pending board’’; that during the suspension, he at 4.

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Agreement and offered a counter Smith, M.D., No. 2005–67946 (Fla. Bd. suspended, denied, restricted, or placed agreement, which the parties accepted. Med., June 26, 2007). on probation, or is any such action Final Order at 1. The Agreement On June 26, 2007, the Board pending?’’ In the application’s block for increased the fine to $5,000, imposed a reinstated Respondent’s license and explaining the ‘‘nature of incident’’ and restriction on his license requiring him placed him ‘‘on probation for a period the ‘‘result of incident,’’ Respondent to ‘‘remain in compliance with any and to run concurrent with his [PRN] wrote ‘‘see attached.’’ Respondent all terms of’’ his contract with the contract.’’ Id. at 1. The Board imposed attached a copy of the Florida Board of Professional Resource Network (PRN), the following conditions: That he Medicine’s June 2007 Order on and prohibited him ‘‘from writing comply with his PRN contract; that he Reinstatement and a letter to him from prescriptions for controlled substances appear before the Board’s ‘‘Probationer’s a DOH Compliance Officer relating the for any family member.’’ Id. at 1–2. Committee’’ each quarter; that he submit minutes of a September 7, 2007 meeting On May 31, 2006, the DOH filed a practice plan to the Committee; that he of the Board’s Probation Committee. The another Administrative Complaint practice only ‘‘under the indirect letter related that the Committee had against Respondent. Administrative supervision’’ of a ‘‘monitoring lifted the restriction on his prescribing Complaint, Department of Health v. physician’’ approved by the Committee, authority. Respondent did not, however, Harold Smith, M.D., No. 2005–67946. who is required to submit quarterly disclose the two Georgia proceedings or The Complaint alleged that on reports to the Committee on the 2003 Florida proceeding. approximately August 9, 2005, Respondent’s compliance and to Respondent had ceased complying with ‘‘[r]eview 25 percent of [his] patient Discussion his PRN contract and that, on August records selected on a random basis at Section 304(a)(1) of the Controlled 16, 2005, a PRN monitor had contact least once each month’’ and who is also Substances Act (CSA) provides that a with him and ‘‘recommended,’’ based required to report any violations of registration ‘‘may be suspended or on his ‘‘body language and general applicable laws and regulations to the revoked by the Attorney General upon demeanor[,] * * * that [he] undergo a Board. Id. at 1–5. Finally, the Board a finding that the registrant * * * has psychiatric evaluation.’’ Id. at 4–5. PRN prohibited Respondent ‘‘from writing materially falsified any application then allegedly ‘‘requested that prescriptions for controlled substances pursuant to or required by this Respondent submit to a psychiatric until such time as he is authorized to do subchapter.’’ 21 U.S.C. 824(a)(1). evaluation and drug screen’’; however, so by the * * * Probationer’s Section 304(a)(4) also provides that a Respondent failed to ‘‘present for his Committee.’’ Id. at 5. drug screen.’’ Id. at 5. The Complaint registration to ‘‘dispense a controlled Respondent’s DEA Applications further alleged that three weeks later, substance * * * may be suspended or ‘‘Respondent contacted PRN and On April 22, 2002, Respondent revoked by the Attorney General upon admitted to a relapse on crack cocaine submitted an application to renew his a finding that the registrant * * * has and agreed to be evaluated.’’ Id. DEA registration. In section 3 of the committed such acts as would render The Complaint alleged that on or application, Respondent was required to his registration under section 823 of this about October 7, 2005, Respondent was answer four questions regarding title inconsistent with the public evaluated and ‘‘diagnosed with cocaine whether he had ever been convicted of interest as determined under such dependence’’ and ‘‘opioid dependence, a controlled substance offense, and section.’’ 21 U.S.C. 824(a)(4). With in apparent relapse.’’ Id. The Complaint whether sanctions had ever been respect to a practitioner, the CSA further alleged that the evaluator found imposed against his DEA registration, requires that the following factors be that ‘‘Respondent was not safe to any state medical license, or any state considered in making the public interest practice medicine’’ and recommended controlled substance registration. determination: that he enter a ‘‘structured More specifically, question 3(d) (1) The recommendation of the appropriate detoxification and stabilization unit and asked: ‘‘Has the applicant ever State licensing board or professional undergo intensive psychotherapy.’’ Id. surrendered or had a state professional disciplinary authority. at 5–6. The Complaint alleged that license or controlled substance (2) The [registrant’s] experience in while Respondent completed this registration revoked, suspended, denied, dispensing * * * controlled substances. portion of his treatment, he restricted, or placed on probation? Is (3) The [registrant’s] conviction record any such action pending?’’ Respondent under Federal or State laws relating to the subsequently refused to enter into a manufacture, distribution, or dispensing of halfway house, did not have a phone, circled ‘‘no.’’ controlled substances. and had no money to pay for urine On February 28, 2005, Respondent (4) Compliance with applicable State, screens. Id. at 6. The State thus alleged submitted another application to renew Federal, or local laws relating to controlled that Respondent was ‘‘unable to practice his registration. Respondent was substances. medicine with reasonable skill and required to answer the same four (5) Such other conduct which may threaten safety to patients due to his substance questions as on the previous the public health and safety. abuse problems and his unwillingness application. Once again, in answering to undergo additional treatment’’ and question 3(d), Respondent circled ‘‘no.’’ 21 U.S.C. 823(f). monitoring by PRN. Id. at 7. On January 31, 2008, Respondent ‘‘[T]hese factors * * * are considered In February 2007, the Florida Board of submitted another application to renew in the disjunctive.’’ Robert A. Leslie, 68 Medicine issued a Final Order adopting his DEA registration. While there were FR 15227, 15230 (2003). I may rely on a settlement agreement which some minor changes to the application, any one or a combination of factors and Respondent had entered into with the Respondent was required to answer the give each factor the weight I deem State. Final Order at 2, DOH v. Harold same four questions as on the previous appropriate in determining whether to Smith, M.D., No. 2005–67946 (Fla. Bd. applications. This time, however, revoke an existing registration or to Med., Feb. 15, 2007). Apparently (as the Respondent answered ‘‘yes’’ to the deny an application to renew a agreement is not part of the record), question: ‘‘Has the applicant ever registration. Id. Moreover, I am ‘‘not Respondent had agreed to the surrendered (for cause) or had a state required to make findings as to all of the suspension of his medical license. See professional license or controlled factors.’’ Morall v. DEA, 412 F.3d 165, Order on Reinstatement, DOH v. Harold substance registration revoked, 173–74 (D.C. Cir. 2005); see also

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Volkman v. DEA, 567 F.3d 215, 222 (6th decisionmaking body to which it was substances.4 See 21 U.S.C. 823(f)(2) & Cir. 2009). addressed.’’ Kungys v. United States, (4). Having considered the evidence, I 485 U.S. 759, 770 (1988) (int. quotation I thus conclude that Respondent conclude that the record establishes that and other citations omitted). While the materially falsified his 2002, 2005 and Respondent materially falsified his evidence must be ‘‘clear, unequivocal, 2008 applications to renew his DEA 2002, 2005, and 2008 applications for and convincing,’’ the ‘‘ultimate finding registration.5 Only one of these material DEA registrations. While there is of materiality turns on a substantive falsifications is necessary to support the evidence suggesting that Respondent is interpretation of the law.’’ Id. at 772 revocation of Respondent’s registration; still abusing controlled substances, in (int. quotations and citations omitted). that there are three such instances light of my conclusion with respect to See also Craig H. Bammer, 73 FR 34327, manifests a shocking level of dishonesty the material falsification allegations, I 34328 (2008). on his part. 21 U.S.C. 824(a)(1). deem it unnecessary to rule on the Accordingly, Respondent’s registration Government’s alternative ground for Respondent’s false statements were will be revoked and his pending seeking the revocation of Respondent’s material because, under the public application will be denied. registration.2 interest standard, the Agency is required to consider, inter alia, the applicant’s Order The Material Falsification Allegations experience in dispensing controlled Pursuant to the authority vested in me As found above, on both April 22, substances, his compliance with by 21 U.S.C. 823(f) & 824(a), as well as 2002 and February 28, 2005, applicable state and federal laws related 28 CFR 0.100(b), I order that DEA Respondent submitted an application to to controlled substances, and whether Certificate of Registration, BS4681979, renew his DEA registration on which he his conduct threatens public health and issued to Harold Edward Smith, M.D., answered ‘‘no’’ to the question: ‘‘Has the safety. See 21 U.S.C. 823(f). Disclosure be, and it hereby is, revoked. I further applicant ever surrendered or had a of each of the state orders would have order that the pending application of state professional license or controlled provided significant information to the Harold Edward Smith, M.D., to renew substance registration revoked, Agency showing that Respondent has a his registration, be, and it hereby is, suspended, denied, restricted, or placed significant problem with drug abuse; denied. This Order is effective on probation?’’ In both instances, DEA has long held that a practitioner’s September 29, 2011. Respondent’s answer was false because self-abuse of a controlled substance is a Dated: August 17, 2011. he failed to disclose (1) The Georgia relevant consideration under factor five Michele M. Leonhart, Board’s 1985 consent order which of the public interest standard and is Administrator. placed him on probation for four years, grounds for the revocation of an existing [FR Doc. 2011–22090 Filed 8–29–11; 8:45 am] and (2) the Georgia Board’s 1990 registration or the denial of an Consent Order which suspended his application for registration even where BILLING CODE 4410–09–P license. Moreover, Respondent’s there is no evidence that a practitioner statement on his 2005 application was has abused his prescription-writing DEPARTMENT OF JUSTICE false for the further reason that in 2003, authority.3 See Kenneth Wayne Green, the Florida Board had imposed Jr., M.D., 59 FR 51453, 51454 (1994) Drug Enforcement Administration restrictions on his license which (registrant’s ‘‘continued drug usage and included that he remain in compliance relapses lead[ ] to the conclusion that Dale J. Bingham, P.A.; Revocation of with the PRN contract and was he cannot be entrusted with the Registration prohibited from writing controlled responsibilities of a DEA registrant and substance prescriptions ‘‘for any family On February 4, 2011, the Deputy that his continued possession of a Assistant Administrator, Office of member.’’ registration would be contrary to the As for his January 31, 2008 Diversion Control, Drug Enforcement public interest’’); David E. Trawick, 53 application, it is true that Respondent Administration, issued an Order to FR 5326, 5327 (1988) (‘‘offenses or gave a ‘‘yes’’ answer to the question Show Cause to Dale J. Bingham, P.A. wrongful acts committed by a registrant regarding his state license and included (Registrant), of Ash Fork, Arizona. The outside of his professional practice, but a copy of the Florida Board’s June 2007 Show Cause Order proposed the which relate to controlled substances reinstatement order. However, the revocation of Registrant’s DEA may constitute sufficient grounds for the statement was still false because Certificate of Registration MB1048746, revocation of a’’ registration). Respondent failed to disclose the which authorizes him to dispense Georgia Board’s 1985 and 1990 consent Disclosure of the 2003 Florida controlled substances in schedules II orders, as well as the 2003 Florida proceeding (on the 2005 and 2008 through V, as a mid-level practitioner, consent agreement. applications) would have also provided on the ground that Registrant had It is likewise clear that Respondent’s information that Respondent had been entered into a consent agreement with failure to disclose the various state accused of writing unlawful the Arizona Regulatory Board of proceedings on each of the three prescriptions for hydrocodone, a Physician Assistants, pursuant to which applications was a materially false schedule III controlled substance. 21 he no longer has ‘‘authority to handle statement under the CSA. A false CFR 1308.13(e). This information is statement is material if it ‘‘has a natural material to the Agency’s investigation 4 That the State did not require Respondent to tendency to influence, or was capable of and assessment of Respondent’s admit to the allegations in the consent agreement does not make his failure to disclose the proceeding influencing, the decision of the experience in dispensing controlled any less material. substances and his compliance with 5 While the Agency did not grant Respondent’s 2 As found above, while the DOH 2006 complaint applicable laws related to the 2008 application, ‘‘[i]t makes no difference that a makes the allegations that Respondent had admitted dispensing of controlled specific falsification did not exert influence so long to t relapse on crack cocaine and had been as it had the capacity to do so.’’ United States v. diagnosed as being dependent on cocaine and Alemany Rivera, 781 F.2d 229, 234 (1st Cir. 1985). opioids, neither the Board’s Final Order nor the 3 It is also relevant in assessing Respondent’s Moreover, Respondent’s false statements on his Order on Reinstatement contain factual findings compliance with applicable laws related to 2002 and 2005 applications obviously did influence establishing the validity of these allegations. controlled substances. See 21 U.S.C. 823(f)(4). the Agency’s decision to grant them.

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controlled substances in * * * Arizona, performance of health care tasks.’’ 2 Id. be revoked and any pending application the [S]tate in which [he is] registered Accordingly, the Board ordered that be denied. with DEA.’’ Show Cause Order at 1 Registrant’s practice be ‘‘limited in that Order (citing 21 U.S.C. 824(a)(3)). The Show he shall not perform health care tasks in Cause Order also notified Registrant of the State of Arizona and is prohibited Pursuant to the authority vested in me his right to either request a hearing on from prescribing any form of treatment by 21 U.S.C. 823(f) and 824(a)(3), as the allegations or to submit a written including prescription medication until well as 28 CFR 0.100(b), I order that statement in lieu of a hearing, the [he] applies to the Board and receives DEA Certificate of Registration procedures for doing either, and the permission to do so.’’ Id. at 2. I therefore MB1048746, issued to Dale J. Bingham, consequences if he failed to do either. find that Registrant is without authority P.A., be, and it hereby is, revoked. I Id. at 2 (citing 21 CFR 1301.43(a), (c)– to dispense controlled substances under further order that any application of (e)). the laws of the State of Arizona, the Dale H. Bingham, P.A., to renew or State in which he holds his DEA modify his registration, be denied. This The Government initially attempted registration. Order is effective September 29, 2011. to serve Registrant with the Order to Show Cause by certified mail addressed Discussion Dated: August 17, 2011. to him at his registered location. The Controlled Substances Act (CSA) Michele M. Leonhart, However, this mailing was returned grants the Attorney General authority to Administrator. unclaimed with the notations: ‘‘No City revoke a registration ‘‘upon a finding [FR Doc. 2011–22091 Filed 8–29–11; 8:45 am] Delivery’’ and ‘‘Requires PO Box that the registrant * * * has had his BILLING CODE 4410–09–P Number.’’ GX 3. On March 8, 2011, the State license or registration suspended Government served the Show Cause [or] revoked * * * and is no longer Order on Registrant by certified mail authorized by State law to engage in the DEPARTMENT OF JUSTICE addressed to him at an address he had * * * distribution [or] dispensing of Office of Justice Programs previously provided to the Agency for controlled substances.’’ 21 U.S.C. receiving mail.1 GX 4. The Investigative 824(a)(3). Moreover, consistent with the [OJP (OJJDP) Docket No. 1556] Record includes a signed return receipt CSA’s definition of the term card establishing service. Id. ‘‘practitioner,’’ DEA has long held that Meeting of the Federal Advisory Committee on Juvenile Justice Since the date of service of the Show a practitioner must be currently Cause Order, neither Registrant, nor authorized to handle controlled AGENCY: Office of Juvenile Justice and anyone purporting to represent him, has substances in ‘‘the jurisdiction in which Delinquency Prevention, Office of either requested a hearing or submitted he practices’’ in order to maintain a Justice Programs, U. S. Department of a written statement in lieu thereof. DEA registration. See 21 U.S.C. 802(21) Justice. (‘‘[t]he term ‘practitioner’ means a Because more than thirty days have now ACTION: Notice of meeting. passed since service of the Show Cause physician * * * or other person Order, I find that Registrant has waived licensed, registered, or otherwise SUMMARY: The Office of Juvenile Justice his right to either request a hearing or permitted, by * * * the jurisdiction in and Delinquency Prevention (OJJDP) to submit a written statement. I which he practices * * * to distribute, announces a meeting of the Federal therefore issue this Decision and Final dispense, [or] administer * * * a Advisory Committee on Juvenile Justice Order based on relevant evidence controlled substance in the course of (FACJJ). contained in the Investigative Record professional practice’’). See also id. Dates and Locations: The meeting submitted by the Government. § 823(f) (‘‘The Attorney General shall will take place at the Gaylord National register practitioners * * * if the Hotel and Convention Center, 201 Findings applicant is authorized to dispense Waterfront Street, National Harbor, MD * * * controlled substances under the Registrant is the holder of DEA 20745, on Tuesday, October 11, 2011 laws of the State in which he Certificate of Registration MB1048746, from 8:30 a.m. to 5 p.m. practices.’’). which authorizes him to dispense FOR FURTHER INFORMATION CONTACT: As these provisions make plain, controlled substances in schedules II Robin Delany-Shabazz, Designated possessing authority under state law to through V as a mid-level practitioner, at Federal Official, OJJDP, Robin.Delany- dispense controlled substances is an the registered address of 112 Ash Park [email protected], or 202–307–9963. essential condition for holding a DEA Drive, Ash Fork, AZ. GX 1. Registrant’s [Note: This is not a toll-free number.] registration. See David W. Wang, 72 FR registration does not expire until July SUPPLEMENTARY INFORMATION: 54297, 54298 (2007); Sheran Arden The 31, 2012. Id. Yeates, 71 FR 39130, 39131 (2006); Federal Advisory Committee on Registrant is also the holder of a Dominick A. Ricci, 58 FR 51104, 51105 Juvenile Justice (FACJJ), established license issued by the Arizona (1993); Bobby Watts, 53 FR 11919, pursuant to Section 3(2)A of the Federal Regulatory Board of Physician 11920 (1988). Here, while Registrant Advisory Committee Act (5 U.S.C. Assistants which formerly authorized retains an Arizona P.A. license, the App.2), will meet to carry out its him to perform health care tasks in evidence establishes that he is no longer advisory functions under Section Arizona. GX 6, at 1. However, according authorized under his license to dispense 223(f)(2)(C–E) of the Juvenile Justice and to a Consent Agreement which controlled substances. Because Delinquency Prevention Act of 2002. Registrant entered into with the Board Registrant no longer satisfies this The FACJJ is composed of on March 26, 2010, Registrant ‘‘has a requirement, he is not entitled to representatives from the states and medical condition that may limit his maintain his registration. Accordingly, I territories. FACJJ member duties ability to safely engage in the will order that Registrant’s registration include: reviewing Federal policies regarding juvenile justice and 1 In its request for final agency action, the 2 The Board noted, however, that ‘‘[t]here has delinquency prevention; advising the Government also stated that it mailed the Show been no finding of unprofessional conduct against’’ OJJDP Administrator with respect to Cause Order to Registrant at his last known address. Registrant. GX 6, at 2. particular functions and aspects of

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OJJDP; and advising the President and and/or continuing collections of II. Review Focus: The Department of Congress with regard to State information in accordance with the Labor is particularly interested in perspectives on the operation of OJJDP Paperwork Reduction Act of 1995 comments which: and Federal legislation pertaining to (PRA95) [44 U.S.C. 3506(c)(2)(A)]. This • Evaluate whether the proposed juvenile justice and delinquency program helps to ensure that requested collection of information is necessary prevention. More information may be data can be provided in the desired for the proper performance of the found at http://www.facjj.org. format, reporting burden (time and functions of the agency, including Meeting Agenda: The agenda will financial resources) is minimized, whether the information will have include: (a) Welcome and introductions; collection instruments are clearly practical utility; (b) remarks from the Administrator; (c) understood, and the impact of collection • Evaluate the accuracy of the an introduction to the FACJJ and requirements on respondents can be agency’s estimate of the burden of the overview of member roles and properly assessed. Currently, the Office proposed collection of information, responsibilities; (d) overview of OJJDP; of Workers’ Compensation Programs is including the validity of the (e) strategies for working with non- soliciting comments concerning the methodology and assumptions used; member states and territories; (f) proposed collection: Certification of • discussion of sub committee options Enhance the quality, utility and Medical Necessity (CM–893). A copy of clarity of the information to be and work products; (g) election of a the proposed information collection chair and vice chair; (h) other business; collected; and request can be obtained by contacting • and (i) adjournment. the office listed below in the addresses Minimize the burden of the For security purposes, members of the section of this Notice. collection of information on those who FACJJ and of the public who wish to are to respond, including through the DATES: attend must pre-register online at Written comments must be use of appropriate automated, http://www.facjj.org by Tuesday, submitted to the office listed in the electronic, mechanical, or other October 4, 2011. Should problems arise addresses section below on or before technological collection techniques or with web registration, call Daryel October 31, 2011. other forms of information technology, Dunston at 240–221–4343. [Note: these ADDRESSES: Mr. Vincent Alvarez, U.S. e.g., permitting electronic submissions are not toll-free telephone numbers.] Department of Labor, 200 Constitution of responses. Photo identification will be required. Ave., NW., Room S–3201, Washington, III. Current Actions: The Department Additional identification documents DC 20210, telephone (202) 693–0372, of Labor seeks the approval for the may be required. Space is limited. fax (202) 693–1447, E-mail extension of this currently-approved Written Comments: Interested parties [email protected]. Please use information collection in order to carry may submit written comments by only one method of transmission for out its responsibility to determine the Tuesday, October 4, 2011, to Robin comments (mail, fax, or E-mail). eligibility for reimbursement of medical Delany-Shabazz, Designated Federal SUPPLEMENTARY INFORMATION: benefits to Black Lung recipients. Official for the Federal Advisory I. Background: The Office of Workers’ Agency: Office of Workers’ Committee on Juvenile Justice, OJJDP, at Compensation Programs administers the Compensation Programs. [email protected]. Federal Black Lung Workers’ Type of Review: Extension. Alternatively, fax your comments to Compensation Program. The enabling Title: Certificate of Medical Necessity. 202–307–2819 and call Joyce Mosso regulations of the Black Lung Benefits Stokes at 202–305–4445 to ensure its OMB Number: 1240–0024. Act, at 20 CFR 725.701, establishes receipt. [Note: These are not toll-free Agency Number: CM–893. miner eligibility for medical services numbers.] No oral presentations will be Affected Public: Individuals or and supplies for the length of time permitted though written questions or households; Business or other for profit, required by the miner’s condition and comments may be invited. and not-for-profit institutions. disability. 20 CFR 706 stipulates there Total Respondents: 2,500. Dated: August 24, 2011. must be prior approval before ordering Jeff Slowikowski, an apparatus where the purchase price Total Annual Responses: 2,500. Acting Administrator, Office of Juvenile exceeds $300.00. 20 CFR 725.707 Average Time per Response: 20 to 40 Justice and Delinquency Prevention. provides for the ongoing supervision of minutes. [FR Doc. 2011–22132 Filed 8–29–11; 8:45 am] the miner’s medical care, including the Estimated Total Burden Hours: 965. BILLING CODE 4410–18–P necessity, character and sufficiency of Frequency: On occasion. care to be furnished; gives the authority Total Burden Cost (capital/startup): to request medical reports and indicates $0. DEPARTMENT OF LABOR the right to refuse payment for failing to Total Burden Cost (operating/ submit any reports required. Because of maintenance): $1,335. Office of Workers’ Compensation the above legislation and regulations, it Comments submitted in response to Programs was necessary to devise a form to collect this notice will be summarized and/or the required information. The CM–893, included in the request for Office of Proposed Renewal of Existing Certificate of Medical Necessity is Management and Budget approval of the Collection; Comment Request completed by the coal miner’s doctor information collection request; they will and is used by the Division of Coal Mine ACTION: Notice. also become a matter of public record. Worker’s Compensation to determine if SUMMARY: The Department of Labor, as the miner meets impairment standards Dated: August 24, 2011. part of its continuing effort to reduce to qualify for durable medical Vincent Alvarez, paperwork and respondent burden, equipment, home nursing, and/or Agency Clearance Officer, Office of Workers’ conducts a pre-clearance consultation pulmonary rehabilitation. This Compensation Programs, U.S. Department of program to provide the general public information collection is currently Labor. and Federal agencies with an approved for use through October 31, [FR Doc. 2011–22122 Filed 8–29–11; 8:45 am] opportunity to comment on proposed 2011. BILLING CODE 4510–CK–P

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NATIONAL COUNCIL ON DISABILITY Rochelle Hall at (202) 314–6305 by SUPPLEMENTARY INFORMATION: Friday, September 9, 2011. Sunshine Act Meetings The public may view the meeting via Submitting Comments and Accessing a live or archived webcast by accessing Information TIME AND DATES: The Members of the a link under ‘‘News & Events’’ on the Comments submitted in writing or in National Council on Disability (NCD) NTSB home page at http:// electronic form will be posted on the will meet by phone on Wednesday, www.ntsb.gov. NRC Web site and on the Federal September 7, 2011, 1–3 p.m., ET. FOR FURTHER INFORMATION CONTACT: rulemaking Web site, http:// PLACE: The meeting will occur by Candi Bing, (202) 314–6403 or by e-mail www.regulations.gov. Because your phone. NCD staff will participate in the at [email protected]. comments will not be edited to remove call from the NCD office at 1331 F Dated: August 26, 2011. any identifying or contact information, Street, NW., Suite 850, Washington, DC Candi R. Bing the NRC cautions you against including 20004. Interested parties may join the any information in your submission that Federal Register Liaison Officer. meeting in person at the NCD office or you do not want to be publicly may join the phone line in a listening- [FR Doc. 2011–22253 Filed 8–26–11; 4:15 pm] disclosed. only capacity using the following call- BILLING CODE 7533–01–P The NRC requests that any party in information: Call-in number: 1–888– soliciting or aggregating comments 819–8001; Passcode: 3417257; Meeting received from other persons for Name: NCD Meeting. If asked, the NUCLEAR REGULATORY submission to the NRC inform those conference call’s leader’s name is Aaron COMMISSION persons that the NRC will not edit their Bishop. [Docket No. 50–400; NRC–2011–0200] comments to remove any identifying or MATTERS TO BE CONSIDERED: The Council contact information, and therefore, they will meet by phone to discuss the Carolina Power & Light, Shearon should not include any information in budgets for fiscal years 2012 and 2013 Harris Nuclear Power Plant, Unit 1; their comments that they do not want as well as the agency’s Performance and Notice of Consideration of Approval of publicly disclosed. Accountability Report (PAR). Application for Indirect License You can access publicly available CONTACT PERSON FOR MORE INFORMATION: Transfer Resulting From the Proposed documents related to this document Anne Sommers, NCD, 1331 F Street, Merger Between Progress Energy, Inc. using the following methods: NW., Suite 850, Washington, DC 20004; and Duke Energy Corporation, and • NRC’s Public Document Room 202–272–2004 (V), 202–272–2074 Opportunity for Hearing (PDR): The public may examine and (TTY). AGENCY: Nuclear Regulatory have copied, for a fee, publicly available ACCOMMODATIONS: Those who plan to Commission. documents at the NRC’s PDR, O1–F21, One White Flint North, 11555 Rockville attend and require accommodations ACTION: Notice of request for indirect Pike, Rockville, Maryland 20852. should notify NCD as soon as possible license transfer, opportunity to • NRC’s Agencywide Documents to allow time to make arrangements. comment, opportunity to request a Access and Management System hearing. Dated: August 25, 2011. (ADAMS): Publicly available documents Aaron Bishop, DATES: Comments must be filed by created or received at the NRC are Executive Director. September 29, 2011. A request for a available online in the NRC Library at [FR Doc. 2011–22202 Filed 8–26–11; 11:15 am] hearing must be filed by September 19, http://www.nrc.gov/reading-rm/ BILLING CODE 6820–MA–P 2011. adams.html. From this page, the public can gain entry into ADAMS, which ADDRESSES: Please include Docket ID provides text and image files of the NRC–2011–0200 in the subject line of NRC’s public documents. If you do not NATIONAL TRANSPORTATION your comments. For additional have access to ADAMS or if there are SAFETY BOARD instructions on submitting comments problems in accessing the documents and instructions on accessing Sunshine Act Meeting located in ADAMS, contact the NRC’s documents related to this action, see PDR reference staff at 1–800–397–4209, ‘‘Submitting Comments and Accessing TIME AND DATE: 9:30 a.m., Tuesday, 301–415–4737, or by e-mail to Information’’ in the SUPPLEMENTARY September 13, 2011. [email protected]. The application INFORMATION section of this PLACE: NTSB Conference Center, 429 dated March 30, 2011, is available document. You may submit comments L’Enfant Plaza SW., Washington, DC electronically under ADAMS Accession by any one of the following methods: 20594. • No. ML11110A031. Federal Rulemaking Web Site: Go to • STATUS: The ONE item is open to the http://www.regulations.gov and search Federal Rulemaking Web Site: public. for documents filed under Docket ID Public comments and supporting MATTER TO BE CONSIDERED: 8220A NRC–2011–0200. Address questions materials related to this notice can be Highway Accident Report—Truck- about NRC dockets to Carol Gallagher, found at http://www.regulations.gov by Tractor Semitrailer Median Crossover telephone: 301–492–3668; e-mail: searching on Docket ID NRC–2011– Collision With 15–Passenger Van, [email protected]. 0200. The application dated March 30, Munfordville, Kentucky, March 26, • Mail comments to: Cindy Bladey, 2011, is available electronically under 2010. Chief, Rules, Announcements, and ADAMS Accession No. ML11110A031. NEWS MEDIA CONTACT: Telephone: (202) Directives Branch (RADB), Office of FOR FURTHER INFORMATION CONTACT: 314–6100. Administration, Mail Stop: TWB–05– Farideh E. Saba, Senior Project Manager, The press and public may enter the B01M, U.S. Nuclear Regulatory Plant Licensing Branch 2–2, Division of NTSB Conference Center one hour prior Commission, Washington, DC 20555– Operating Reactor Licensing, Office of to the meeting for set up and seating. 0001. Nuclear Reactor Regulation, U.S. Individuals requesting specific • Fax comments to: RADB at 301– Nuclear Regulatory Commission, accommodations should contact 492–3446. Washington, DC 20555. Telephone:

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301–415–1447; fax number: 301–415– the transaction is complete, similarly must comply with the requirements set 2102; e-mail: [email protected]. subject to their ability and willingness forth in 10 CFR 2.309. Untimely The Commission is considering the to serve. requests and petitions may be denied, as issuance of an order under Title 10 of According to the application, the provided in 10 CFR 2.309(c)(1), unless Code of Federal Regulations (10 CFR) technical qualifications of the licensees good cause for failure to file on time is 50.80 approving the indirect transfer of are not affected by the proposed indirect established. In addition, an untimely the Renewed Facility Operating License transfers of control of the HNP license. request or petition should address the No. NFP–63 for Shearon Harris Nuclear The current licensee will at all times factors that the Commission will also Power Plant, Unit 1 (HNP), currently remain the licensed operator of HNP. No consider, in reviewing untimely held by Carolina Power & Light conforming amendments will be requests or petitions, set forth in 10 CFR Company, as owner and licensed required to the facility operating license 2.309(c)(1)(i)–(viii). NRC regulations are operator. as a result of the proposed transaction. accessible electronically from the NRC According to the application for The nuclear operating organization for Library on the NRC Web site at http:// approval dated March 30, 2011, filed by the licensed facility is expected to www.nrc.gov/reading-rm/doc- Carolina Power & Light Company remain essentially unchanged as a result collections/cfr/. (CP&L, the licensee), Progress Energy, of the acquisition. Specifically, the All documents filed in NRC Inc. (Progress Energy, the licensee’s proposed indirect transfer of control adjudicatory proceedings, including a current ultimate parent corporation) will not result in any change in the role request for hearing, a petition for leave seeks approval pursuant to 10 CFR of the CP&L as the licensed operator of to intervene, any motion or other 50.80 for indirect transfer of control of the licensed facility and will not result document filed in the proceeding prior HNP, along with Brunswick Steam in any changes to its financial to the submission of a request for Electric Plant (BSEP), Units 1 and 2, qualifications, decommissioning hearing or petition to intervene, and including BSEP Independent Spent Fuel funding assurance, or technical documents filed by interested Storage Installation, H.B. Robinson qualifications. CP&L will retain the governmental entities participating Steam Electric Plant (Robinson), Unit 2, requisite qualifications to own and under 10 CFR 2.315(c), must be filed in Robinson Independent Spent Fuel operate the licensed facility. accordance with the NRC E–Filing rule Storage Installations, and Crystal River No physical changes to the above (72 FR 49139, August 28, 2007). The E– Unit 3 Nuclear Generating Plant. listed facilities or operational changes Filing process requires participants to Progress Energy would merge with Duke are being proposed in the application. submit and serve all adjudicatory Energy Corporation (Duke Energy). The Pursuant to 10 CFR 50.80, no license, documents over the internet, or in some merged company would become the or any right thereunder, shall be cases to mail copies on electronic ultimate parent of the current licensee. transferred, directly or indirectly, storage media. Participants may not CP&L will continue to own and operate through transfer of control of the submit paper copies of their filings the licensed facility in accordance with license, unless the Commission shall unless they seek an exemption in the license. give its consent in writing. The accordance with the procedures According to the application, under Commission will approve an described below. the terms of the Merger Agreement, application for the indirect transfer of a To comply with the procedural Diamond Acquisition Corporation license, if the Commission determines requirements of E–Filing, at least 10 (Merger Sub), a wholly owned direct that the proposed merger will not affect days prior to the filing deadline, the subsidiary of Duke Energy, will merge the qualifications of the licensee to hold participant should contact the Office of with and into Progress Energy. Progress the license, and that the transfer is the Secretary by e-mail at Energy will become a wholly owned otherwise consistent with applicable [email protected], or by telephone direct subsidiary of Duke Energy and provisions of law, regulations, and at 301–415–1677, to request (1) A digital the former shareholders of Progress orders issued by the Commission ID certificate, which allows the Energy will become shareholders of pursuant thereto. participant (or its counsel or Duke Energy. The current licensee will The filing of requests for hearing and representative) to digitally sign remain a wholly owned subsidiary of petitions for leave to intervene, and documents and access the E–Submittal Progress Energy and will continue to written comments with regard to the server for any proceeding in which it is operate the HNP facility. license transfer application, are participating; and (2) advise the According to the application, it is discussed below. Secretary that the participant will be anticipated that Duke Energy Within 20 days from the date of submitting a request or petition for shareholders will own approximately 63 publication of this notice, any person(s) hearing (even in instances in which the percent of the combined company and whose interest may be affected by the participant, or its counsel or Progress Energy shareholders will own Commission’s action on the application representative, already holds an NRC- approximately 37 percent of the may request a hearing and intervention issued digital ID certificate). Based upon combined company on a fully diluted via electronic submission through the this information, the Secretary will basis. NRC E-Filing system. Requests for a establish an electronic docket for the According to the application, when hearing and petitions for leave to hearing in this proceeding if the the transaction is completed, Duke intervene should be filed in accordance Secretary has not already established an Energy will have an eighteen-member with the Commission’s rules of practice electronic docket. board of directors. All eleven current set forth in Subpart C ‘‘Rules of General Information about applying for a directors of Duke Energy will continue Applicability: Hearing Requests, digital ID certificate is available on as directors when the transaction is Petitions to Intervene, Availability of NRC’s public Web site at http:// complete, subject to their ability and Documents, Selection of Specific www.nrc.gov/site-help/e-submittals/ willingness to serve. Progress Energy, Hearing Procedures, Presiding Officer apply-certificates.html. System after consultation with Duke Energy, Powers, and General Hearing requirements for accessing the E– designated seven of the current directors Management for NRC Adjudicatory Submittal server are detailed in NRC’s of Progress Energy to be added to the Hearings,’’ of 10 CFR part 2. In ‘‘Guidance for Electronic Submission,’’ board of directors of Duke Energy when particular, such requests and petitions which is available on the agency’s

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public Web site at http://www.nrc.gov/ [email protected], or by a toll- should be granted or the contentions site-help/e-submittals.html. Participants free call at 866–672–7640. The NRC should be admitted, based on a may attempt to use other software not Meta System Help Desk is available balancing of the factors specified in 10 listed on the Web site, but should note between 8 a.m. and 8 p.m., Eastern CFR 2.309(c)(1)(i)–(viii). that the NRC’s E–Filing system does not Time, Monday through Friday, The Commission will issue a notice or support unlisted software, and the NRC excluding government holidays. order granting or denying a hearing Meta System Help Desk will not be able Participants who believe that they to offer assistance in using unlisted have a good cause for not submitting request or intervention petition, software. documents electronically must file an designating the issues for any hearing If a participant is electronically exemption request, in accordance with that will be held and designating the submitting a document to the NRC in 10 CFR 2.302(g), with their initial paper Presiding Officer. A notice granting a accordance with the E–Filing rule, the filing requesting authorization to hearing will be published in the Federal participant must file the document continue to submit documents in paper Register and served on the parties to the using the NRC’s online, Web-based format. Such filings must be submitted hearing. submission form. In order to serve by: (1) First class mail addressed to the Within 30 days from the date of documents through Electronic Office of the Secretary of the publication of this notice, persons may Information Exchange, users will be Commission, U.S. Nuclear Regulatory submit written comments regarding the required to install a Web browser plug- Commission, Washington, DC 20555– license transfer application, as provided in from the NRC Web site. Further 0001, Attention: Rulemaking and for in 10 CFR 2.1305. The Commission information on the Web-based Adjudications Staff; or (2) courier, will consider and, if appropriate, submission form, including the express mail, or expedited delivery installation of the Web browser plug-in, service to the Office of the Secretary, respond to these comments, but such is available on the NRC’s public Web Sixteenth Floor, One White Flint North, comments will not otherwise constitute site at http://www.nrc.gov/site-help/e- 11555 Rockville Pike, Rockville, part of the decisional record. Comments submittals.html. Maryland, 20852, Attention: should be submitted to the Secretary, Once a participant has obtained a Rulemaking and Adjudications Staff. U.S. Nuclear Regulatory Commission, digital ID certificate and a docket has Participants filing a document in this Washington, DC 20555–0001, Attention: been created, the participant can then manner are responsible for serving the Rulemakings and Adjudications Staff, submit a request for hearing or petition document on all other participants. and should cite the publication date and for leave to intervene. Submissions Filing is considered complete by first- page number of this Federal Register should be in Portable Document Format class mail as of the time of deposit in notice. (PDF) in accordance with NRC guidance the mail, or by courier, express mail, or For further details with respect to this available on the NRC public Web site at expedited delivery service upon license transfer application, see the http://www.nrc.gov/site-help/e- depositing the document with the application dated March 30, 2011, submittals.html. A filing is considered provider of the service. A presiding available for public inspection at the complete at the time the documents are officer, having granted an exemption submitted through the NRC’s E–Filing request from using E–Filing, may Commission’s Public Document Room system. To be timely, an electronic require a participant or party to use E– (PDR), located at One White Flint North, filing must be submitted to the E–Filing Filing if the presiding officer Public File Area O1 F21, 11555 system no later than 11:59 p.m. Eastern subsequently determines that the reason Rockville Pike (first floor), Rockville, Time on the due date. Upon receipt of for granting the exemption from use of Maryland. Publicly available documents a transmission, the E–Filing system E–Filing no longer exists. created or received at the NRC are time-stamps the document and sends Documents submitted in adjudicatory accessible electronically through the submitter an e-mail notice proceedings will appear in NRC’s ADAMS in the NRC Library at http:// confirming receipt of the document. The electronic hearing docket which is www.nrc.gov/reading-rm/adams.html. E–Filing system also distributes an e- available to the public at http:// Persons who do not have access to mail notice that provides access to the ehd1.nrc.gov/EHD/, unless excluded ADAMS or who encounter problems in document to the NRC Office of the pursuant to an order of the Commission, accessing the documents located in General Counsel and any others who or the presiding officer. Participants are ADAMS should contact the NRC PDR have advised the Office of the Secretary requested not to include personal Reference staff by telephone at 1–800– that they wish to participate in the privacy information, such as social 397–4209, or 301–415–4737 or by e-mail proceeding, so that the filer need not security numbers, home addresses, or to [email protected]. serve the documents on those home phone numbers in their filings, participants separately. Therefore, unless an NRC regulation or other law Dated at Rockville, Maryland this 22nd day applicants and other participants (or requires submission of such of August 2011. their counsel or representative) must information. With respect to For the Nuclear Regulatory Commission. apply for and receive a digital ID copyrighted works, except for limited Farideh E. Saba, certificate before a hearing request/ excerpts that serve the purpose of the Senior Project Manager, Plant Licensing petition to intervene is filed so that they adjudicatory filings and would Branch 2–2, Division of Operating Reactor can obtain access to the document via constitute a Fair Use application, Licensing, Office of Nuclear Reactor the E–Filing system. participants are requested not to include Regulation. A person filing electronically using copyrighted materials in their [FR Doc. 2011–22100 Filed 8–29–11; 8:45 am] the agency’s adjudicatory E–Filing submission. system may seek assistance by Petitions for leave to intervene must BILLING CODE 7590–01–P contacting the NRC Meta System Help be filed no later than 20 days from the Desk through the ‘‘Contact Us’’ link date of publication of this notice. Non- located on the NRC Web site at http:// timely filings will not be entertained www.nrc.gov/site-help/e- absent a determination by the presiding submittals.html, by e-mail at officer that the petition or request

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NUCLEAR REGULATORY The NRC requests that any party Inc. (Progress Energy, the licensee’s COMMISSION soliciting or aggregating comments current ultimate parent corporation) received from other persons for seeks approval pursuant to 10 CFR [Docket Nos. 50–325 and 50–324; NRC– 50.80 for indirect transfer of control of 2011–0199; Docket No. 72–6] submission to the NRC inform those persons that the NRC will not edit their BSEP Units 1 and 2, including the BSEP Carolina Power & Light; Brunswick comments to remove any identifying or Independent Spent Fuel Storage Steam Electric Plant, Units 1 and 2; contact information, and therefore, they Installation, along with Shearon Harris Independent Spent Fuel Storage should not include any information in Nuclear Power Plant, Unit 1, H.B. Installation; Notice of Consideration of their comments that they do not want Robinson Steam Electric Plant Approval of Application for Indirect publicly disclosed. (Robinson), Unit 2, Robinson License Transfers Resulting From the You can access publicly available Independent Spent Fuel Storage Proposed Merger Between Progress documents related to this document Installations, and Crystal River Unit 3 Energy, Inc. and Duke Energy using the following methods: Nuclear Generating Plant. Progress Corporation, and Opportunity for • NRC’s Public Document Room Energy would merge with Duke Energy Hearing (PDR): The public may examine and Corporation (Duke Energy). The merged have copied, for a fee, publicly available company would become the ultimate AGENCY: Nuclear Regulatory documents at the NRC’s PDR, O1–F21, parent of the current licensee. CP&L will Commission. One White Flint North, 11555 Rockville continue to own and operate the ACTION: Notice of request for indirect Pike, Rockville, Maryland 20852. licensed facility in accordance with the license transfer, opportunity to • NRC’s Agencywide Documents licenses. comment and to request a hearing. Access and Management System According to the application, under (ADAMS): Publicly available documents the terms of the Merger Agreement, DATES: Comments must be filed by created or received at the NRC are Diamond Acquisition Corporation September 29, 2011. A request for a available online in the NRC Library at (Merger Sub), a wholly owned direct hearing must be filed by September 19, http://www.nrc.gov/reading-rm/ subsidiary of Duke Energy, will merge 2011. adams.html. From this page, the public with and into Progress Energy. Progress Energy will become a wholly owned ADDRESSES: Please include Docket ID can gain entry into ADAMS, which direct subsidiary of Duke Energy and NRC–2011–0199 in the subject line of provides text and image files of the the former shareholders of Progress your comments. For additional NRC’s public documents. If you do not Energy will become shareholders of instructions on submitting comments have access to ADAMS or if there are Duke Energy. The current licensee will and instructions on accessing problems in accessing the documents remain a wholly owned subsidiary of documents related to this action, see located in ADAMS, contact the NRC’s Progress Energy and will continue to ‘‘Submitting Comments and Accessing PDR reference staff at 1–800–397–4209, 301–415–4737, or by e-mail to operate the BSEP facility. Information’’ in the SUPPLEMENTARY According to the application, it is [email protected]. INFORMATION section of this document. anticipated that Duke Energy • Federal Rulemaking Web Site: You may submit comments by any one shareholders will own approximately 63 Public comments and supporting of the following methods: percent of the combined company and • materials related to this notice can be Federal Rulemaking Web Site: Go to Progress Energy shareholders will own found at http://www.regulations.gov by http://www.regulations.gov and search approximately 37 percent of the searching on Docket ID NRC–2011– for documents filed under Docket ID combined company on a fully diluted 0199. The application dated March 30, NRC–2011–0199. Address questions basis. about NRC dockets to Carol Gallagher, 2011, is available electronically under According to the application, when telephone: 301–492–3668; e-mail: ADAMS Accession No. ML11110A031. the transaction is completed, Duke [email protected]. FOR FURTHER INFORMATION CONTACT: Energy will have an eighteen-member • Mail comments to: Cindy Bladey, Farideh E. Saba, Senior Project Manager, board of directors. All eleven current Chief, Rules, Announcements, and Plant Licensing Branch 2–2, Division of directors of Duke Energy will continue Directives Branch (RADB), Office of Operating Reactor Licensing, Office of as directors when the transaction is Administration, Mail Stop: TWB–05– Nuclear Reactor Regulation, U.S. complete, subject to their ability and B01M, U.S. Nuclear Regulatory Nuclear Regulatory Commission, willingness to serve. Progress Energy, Commission, Washington, DC 20555– Washington, DC 20555. Telephone: after consultation with Duke Energy, 0001. 301–415–1447; fax number: 301–415– designated seven of the current directors • Fax comments to: RADB at 301– 2102; e-mail: [email protected]. of Progress Energy to be added to the 492–3446. The Commission is considering the board of directors of Duke Energy when SUPPLEMENTARY INFORMATION: issuance of an order under Title 10 of the transaction is complete, similarly Code of Federal Regulations (10 CFR) subject to their ability and willingness Submitting Comments and Accessing 50.80 approving the indirect transfer of to serve. Information the Renewed Facility Operating According to the application, the Comments submitted in writing or in Licenses Nos. DPR–71 and DPR–62 for technical qualifications of the licensees electronic form will be posted on the the Brunswick Steam Electric Plant are not affected by the proposed indirect NRC Web site and on the Federal (BSEP), Units 1 and 2, including the transfers of control of the BSEP licenses. rulemaking Web site, http:// BSEP Independent Spent Fuel Storage The current licensee will at all times www.regulations.gov. Because your Installation, currently held by Carolina remain the licensed operator of BSEP. comments will not be edited to remove Power & Light Company, as owner and No conforming amendments will be any identifying or contact information, licensed operator. required to the facility operating the NRC cautions you against including According to the application for licenses as a result of the proposed any information in your submission that approval dated March 30, 2011, filed by transaction. The nuclear operating you do not want to be publicly Carolina Power & Light Company organizations for the licensed facility disclosed. (CP&L, the licensee), Progress Energy, are expected to remain essentially

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unchanged as a result of the acquisition. All documents filed in NRC documents through Electronic Specifically, the proposed indirect adjudicatory proceedings, including a Information Exchange, users will be transfers of control will not result in any request for hearing, a petition for leave required to install a Web browser plug- change in the role of the CP&L as the to intervene, any motion or other in from the NRC Web site. Further licensed operator of the BSEP facility document filed in the proceeding prior information on the Web-based and will not result in any changes to its to the submission of a request for submission form, including the financial qualifications, hearing or petition to intervene, and installation of the Web browser plug-in, decommissioning funding assurance, or documents filed by interested is available on the NRC’s public Web technical qualifications. CP&L will governmental entities participating site at http://www.nrc.gov/site-help/e- retain the requisite qualifications to own under 10 CFR 2.315(c), must be filed in submittals.html. and operate the licensed facility. accordance with the NRC E–Filing rule Once a participant has obtained a No physical changes to the BSEP (72 FR 49139, August 28, 2007). The E– digital ID certificate and a docket has facility or operational changes are being Filing process requires participants to been created, the participant can then proposed in the application. submit and serve all adjudicatory submit a request for hearing or petition Pursuant to 10 CFR 50.80, no license, documents over the internet, or in some for leave to intervene. Submissions or any right thereunder, shall be cases to mail copies on electronic should be in Portable Document Format transferred, directly or indirectly, storage media. Participants may not (PDF) in accordance with NRC guidance through transfer of control of the submit paper copies of their filings available on the NRC public Web site at license, unless the Commission shall unless they seek an exemption in http://www.nrc.gov/site-help/e- give its consent in writing. The accordance with the procedures submittals.html. A filing is considered Commission will approve an described below. complete at the time the documents are application for the indirect transfer of a To comply with the procedural submitted through the NRC’s E–Filing license, if the Commission determines requirements of E–Filing, at least 10 system. To be timely, an electronic that the proposed merger will not affect days prior to the filing deadline, the filing must be submitted to the E–Filing the qualifications of the licensee to hold participant should contact the Office of system no later than 11:59 p.m. Eastern the license, and that the transfer is the Secretary by e-mail at Time on the due date. Upon receipt of otherwise consistent with applicable [email protected], or by telephone a transmission, the E–Filing system provisions of law, regulations, and at (301) 415–1677, to request (1) a time-stamps the document and sends orders issued by the Commission digital ID certificate, which allows the the submitter an e-mail notice pursuant thereto. participant (or its counsel or confirming receipt of the document. The The filing of requests for hearing and representative) to digitally sign E–Filing system also distributes an e- petitions for leave to intervene, and documents and access the E–Submittal mail notice that provides access to the written comments with regard to the server for any proceeding in which it is document to the NRC Office of the license transfer application, are participating; and (2) advise the General Counsel and any others who discussed below. Secretary that the participant will be have advised the Office of the Secretary Within 20 days from the date of submitting a request or petition for that they wish to participate in the publication of this notice, any person(s) hearing (even in instances in which the proceeding, so that the filer need not whose interest may be affected by the participant, or its counsel or serve the documents on those Commission’s action on the application representative, already holds an NRC- participants separately. Therefore, may request a hearing and intervention issued digital ID certificate). Based upon applicants and other participants (or via electronic submission through the this information, the Secretary will their counsel or representative) must NRC E–Filing system. Requests for a establish an electronic docket for the apply for and receive a digital ID hearing and petitions for leave to hearing in this proceeding if the certificate before a hearing request/ intervene should be filed in accordance Secretary has not already established an petition to intervene is filed so that they with the Commission’s rules of practice electronic docket. can obtain access to the document via set forth in Subpart C ‘‘Rules of General Information about applying for a the E–Filing system. Applicability: Hearing Requests, digital ID certificate is available on A person filing electronically using Petitions to Intervene, Availability of NRC’s public Web site at http:// the agency’s adjudicatory E–Filing Documents, Selection of Specific www.nrc.gov/site-help/e-submittals/ system may seek assistance by Hearing Procedures, Presiding Officer apply-certificates.html. System contacting the NRC Meta System Help Powers, and General Hearing requirements for accessing the E– Desk through the ‘‘Contact Us’’ link Management for NRC Adjudicatory Submittal server are detailed in NRC’s located on the NRC Web site at http:// Hearings,’’ of 10 CFR part 2. In ‘‘Guidance for Electronic Submission,’’ www.nrc.gov/site-help/e- particular, such requests and petitions which is available on the agency’s submittals.html, by e-mail at must comply with the requirements set public Web site at http://www.nrc.gov/ [email protected], or by a toll- forth in 10 CFR 2.309. Untimely site-help/e-submittals.html. Participants free call at (866) 672–7640. The NRC requests and petitions may be denied, as may attempt to use other software not Meta System Help Desk is available provided in 10 CFR 2.309(c)(1), unless listed on the Web site, but should note between 8 a.m. and 8 p.m., Eastern good cause for failure to file on time is that the NRC’s E–Filing system does not Time, Monday through Friday, established. In addition, an untimely support unlisted software, and the NRC excluding government holidays. request or petition should address the Meta System Help Desk will not be able Participants who believe that they factors that the Commission will also to offer assistance in using unlisted have a good cause for not submitting consider, in reviewing untimely software. documents electronically must file an requests or petitions, set forth in 10 CFR If a participant is electronically exemption request, in accordance with 2.309(c)(1)(i)–(viii). NRC regulations are submitting a document to the NRC in 10 CFR 2.302(g), with their initial paper accessible electronically from the NRC accordance with the E–Filing rule, the filing requesting authorization to Library on the NRC Web site at http:// participant must file the document continue to submit documents in paper www.nrc.gov/reading-rm/doc- using the NRC’s online, Web-based format. Such filings must be submitted collections/cfr/. submission form. In order to serve by: (1) First class mail addressed to the

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Office of the Secretary of the submit written comments regarding the hearing must be filed by September 19, Commission, U.S. Nuclear Regulatory license transfer application, as provided 2011. Commission, Washington, DC 20555– for in 10 CFR 2.1305. The Commission ADDRESSES: Please include Docket ID 0001, Attention: Rulemaking and will consider and, if appropriate, NRC–2011–0198 in the subject line of Adjudications Staff; or (2) courier, respond to these comments, but such your comments. For additional express mail, or expedited delivery comments will not otherwise constitute instructions on submitting comments service to the Office of the Secretary, part of the decisional record. Comments and instructions on accessing Sixteenth Floor, One White Flint North, should be submitted to the Secretary, documents related to this action, see 11555 Rockville Pike, Rockville, U.S. Nuclear Regulatory Commission, ‘‘Submitting Comments and Accessing Maryland 20852, Attention: Rulemaking Washington, DC 20555–0001, Attention: Information’’ in the SUPPLEMENTARY and Adjudications Staff. Participants Rulemakings and Adjudications Staff, INFORMATION section of this document. filing a document in this manner are and should cite the publication date and You may submit comments by any one responsible for serving the document on page number of this Federal Register of the following methods: all other participants. Filing is notice. • Federal Rulemaking Web Site: Go to considered complete by first-class mail For further details with respect to this http://www.regulations.gov and search as of the time of deposit in the mail, or license transfer application, see the for documents filed under Docket ID by courier, express mail, or expedited application dated March 30, 2011, NRC–2011–0198. Address questions delivery service upon depositing the available for public inspection at the about NRC dockets to Carol Gallagher, document with the provider of the Commission’s Public Document Room telephone: 301–492–3668; e-mail: service. A presiding officer, having (PDR), located at One White Flint North, [email protected]. granted an exemption request from Public File Area O1 F21, 11555 • Mail comments to: Cindy Bladey, using E–Filing, may require a Rockville Pike (first floor), Rockville, Chief, Rules, Announcements, and participant or party to use E–Filing if Maryland. Publicly available documents Directives Branch (RADB), Office of the presiding officer subsequently created or received at the NRC are Administration, Mail Stop: TWB–05– determines that the reason for granting accessible electronically through B01M, U.S. Nuclear Regulatory the exemption from use of E–Filing no ADAMS in the NRC Library at http:// Commission, Washington, DC 20555– longer exists. www.nrc.gov/reading-rm/adams.html. 0001. Documents submitted in adjudicatory Persons who do not have access to • Fax comments to: RADB at 301– proceedings will appear in NRC’s ADAMS or who encounter problems in 492–3446. electronic hearing docket which is accessing the documents located in SUPPLEMENTARY INFORMATION: available to the public at http:// ADAMS should contact the NRC PDR ehd1.nrc.gov/EHD/, unless excluded Reference staff by telephone at 1–800– Submitting Comments and Accessing pursuant to an order of the Commission, 397–4209, or 301–415–4737 or by e-mail Information or the presiding officer. Participants are to [email protected]. requested not to include personal Comments submitted in writing or in privacy information, such as social Dated at Rockville, Maryland this 22nd day electronic form will be posted on the security numbers, home addresses, or of August 2011. NRC Web site and on the Federal home phone numbers in their filings, For the Nuclear Regulatory Commission. rulemaking Web site, http:// unless an NRC regulation or other law Farideh E. Saba, www.regulations.gov. Because your requires submission of such Senior Project Manager, Plant Licensing comments will not be edited to remove information. With respect to Branch 2–2, Division of Operating Reactor any identifying or contact information, copyrighted works, except for limited Licensing, Office of Nuclear Reactor the NRC cautions you against including excerpts that serve the purpose of the Regulation. any information in your submission that adjudicatory filings and would [FR Doc. 2011–22103 Filed 8–29–11; 8:45 am] you do not want to be publicly constitute a Fair Use application, BILLING CODE 7590–01–P disclosed. participants are requested not to include The NRC requests that any party copyrighted materials in their soliciting or aggregating comments submission. NUCLEAR REGULATORY received from other persons for Petitions for leave to intervene must COMMISSION submission to the NRC inform those be filed no later than 20 days from the [Docket No. 50.302; NRC–2011–0198] persons that the NRC will not edit their date of publication of this notice. Non- comments to remove any identifying or timely filings will not be entertained Florida Power Corporation, Crystal contact information, and therefore, they absent a determination by the presiding River Unit No. 3 Nuclear Generating should not include any information in officer that the petition or request Plant; Notice of Consideration of their comments that they do not want should be granted or the contentions Approval of Application for Indirect publicly disclosed. should be admitted, based on a License Transfers Resulting From the You can access publicly available balancing of the factors specified in 10 Proposed Merger Between Progress documents related to this document CFR 2.309(c)(1)(i)-(viii). Energy, Inc. and Duke Energy using the following methods: The Commission will issue a notice or Corporation, and Opportunity for • NRC’s Public Document Room order granting or denying a hearing Hearing (PDR): The public may examine and request or intervention petition, have copied, for a fee, publicly available designating the issues for any hearing AGENCY: Nuclear Regulatory documents at the NRC’s PDR, O1–F21, that will be held and designating the Commission. One White Flint North, 11555 Rockville presiding officer. A notice granting a ACTION: Notice of request for indirect Pike, Rockville, Maryland 20852. hearing will be published in the Federal license transfer, opportunity to • NRC’s Agencywide Documents Register and served on the parties to the comment and to request a hearing. Access and Management System hearing. (ADAMS): Publicly available documents Within 30 days from the date of DATES: Comments must be filed by created or received at the NRC are publication of this notice, persons may September 29, 2011. A request for a available online in the NRC Library at

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http://www.nrc.gov/reading-rm/ the former shareholders of Progress orders issued by the Commission adams.html. From this page, the public Energy will become shareholders of pursuant thereto. can gain entry into ADAMS, which Duke Energy. The current licensee will The filing of requests for hearing and provides text and image files of the remain a wholly owned subsidiary of petitions for leave to intervene, and NRC’s public documents. If you do not Progress Energy and will continue to written comments with regard to the have access to ADAMS or if there are operate CR–3 facility. license transfer application, are problems in accessing the documents According to the application, it is discussed below. located in ADAMS, contact the NRC’s anticipated that Duke Energy Within 20 days from the date of PDR reference staff at 1–800–397–4209, shareholders will own approximately 63 publication of this notice, any person(s) 301–415–4737, or by e-mail to percent of the combined company and whose interest may be affected by the [email protected]. The application Progress Energy shareholders will own Commission’s action on the application dated March 30, 2011, is available approximately 37 percent of the may request a hearing and intervention electronically under ADAMS Accession combined company on a fully diluted via electronic submission through the No. ML11110A031. basis. NRC E-Filing system. Requests for a • Federal Rulemaking Web Site: According to the application, when hearing and petitions for leave to Public comments and supporting the transaction is completed, Duke intervene should be filed in accordance materials related to this notice can be Energy will have an eighteen-member with the Commission’s rules of practice found at http://www.regulations.gov by board of directors. All eleven current set forth in Subpart C ‘‘Rules of General searching on Docket ID NRC–2011– directors of Duke Energy will continue Applicability: Hearing Requests, 0198. as directors when the transaction is Petitions to Intervene, Availability of complete, subject to their ability and Documents, Selection of Specific FOR FURTHER INFORMATION CONTACT: willingness to serve. Progress Energy, Hearing Procedures, Presiding Officer Farideh E. Saba, Senior Project Manager, after consultation with Duke Energy, Powers, and General Hearing Plant Licensing Branch 2–2, Division of designated seven of the current directors Management for NRC Adjudicatory Operating Reactor Licensing, Office of of Progress Energy to be added to the Hearings,’’ of 10 CFR part 2. In Nuclear Reactor Regulation, U.S. board of directors of Duke Energy when particular, such requests and petitions Nuclear Regulatory Commission, the transaction is complete, similarly must comply with the requirements set Washington, DC 20555. Telephone: subject to their ability and willingness forth in 10 CFR 2.309. Untimely 301–415–1447; fax number: 301–415– to serve. requests and petitions may be denied, as 2102; e-mail: [email protected]. According to the application, the provided in 10 CFR 2.309(c)(1), unless The Commission is considering the technical qualifications of the licensees good cause for failure to file on time is issuance of an order under Title 10 of are not affected by the proposed indirect established. In addition, an untimely Code of Federal Regulations (10 CFR) transfers of control of the CR–3 license. request or petition should address the 50.80 approving the indirect transfer of The current licensee will at all times factors that the Commission will also the Facility Operating License No. DPR– remain the licensed operator of CR–3. consider, in reviewing untimely 72 for Crystal River Unit 3 Nuclear No conforming amendments will be requests or petitions, set forth in 10 CFR generating Plant (CR–3), currently held required to the facility operating license 2.309(c)(1)(i)–(viii). NRC regulations are by Florida Power Corporation, as owner as a result of the proposed transaction. accessible electronically from the NRC and licensed operator. The nuclear operating organization for Library at http://www.nrc.gov/reading- According to an application dated the licensed facility is expected to rm/doc-collections/cfr/. March 30, 2011, filed by Florida Power remain essentially unchanged as a result All documents filed in NRC Corporation (FPC, the licensee), of the acquisition. Specifically, the adjudicatory proceedings, including a Progress Energy, Inc. (Progress Energy, proposed indirect transfer of control request for hearing, a petition for leave the licensee’s current ultimate parent will not result in any change in the role to intervene, any motion or other corporation) seeks approval pursuant to of the FPC as the licensed operator of document filed in the proceeding prior 10 CFR 50.80 for indirect transfer of the licensed facilities and will not result to the submission of a request for control of CR–3, along with Brunswick in any changes to their financial hearing or petition to intervene, and Steam Electric Plant (BSEP), Units 1 and qualifications, decommissioning documents filed by interested 2, including BSEP Independent Spent funding assurance, or technical governmental entities participating Fuel Storage Installation, Shearon Harris qualifications. FPC will retain the under 10 CFR 2.315(c), must be filed in Nuclear Power Plant, Unit 1, H.B. requisite qualifications to own and accordance with the NRC E-Filing rule Robinson Steam Electric Plant operate the licensed facility. (72 FR 49139, August 28, 2007). The E- (Robinson), Unit 2, and Robinson No physical changes to the above Filing process requires participants to Independent Spent Fuel Storage listed facilities or operational changes submit and serve all adjudicatory Installations. Progress Energy would are being proposed in the application. documents over the internet, or in some merge with Duke Energy Corporation Pursuant to 10 CFR 50.80, no license, cases to mail copies on electronic (Duke Energy). The merged company or any right thereunder, shall be storage media. Participants may not would become the ultimate parent of the transferred, directly or indirectly, submit paper copies of their filings current licensee. FPC will continue to through transfer of control of the unless they seek an exemption in own and operate the licensed facility in license, unless the Commission shall accordance with the procedures accordance with the License. give its consent in writing. The described below. According to the application, under Commission will approve an To comply with the procedural the terms of the Merger Agreement, application for the indirect transfer of a requirements of E-Filing, at least 10 Diamond Acquisition Corporation license, if the Commission determines days prior to the filing deadline, the (Merger Sub), a wholly-owned direct that the proposed merger will not affect participant should contact the Office of subsidiary of Duke Energy, will merge the qualifications of the licensee to hold the Secretary by e-mail at with and into Progress Energy. Progress the license, and that the transfer is [email protected], or by telephone Energy will become a wholly owned otherwise consistent with applicable at 301–415–1677, to request (1) A digital direct subsidiary of Duke Energy and provisions of law, regulations, and ID certificate, which allows the

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participant (or its counsel or confirming receipt of the document. The available to the public at http:// representative) to digitally sign E-Filing system also distributes an e- ehd1.nrc.gov/EHD/, unless excluded documents and access the E-Submittal mail notice that provides access to the pursuant to an order of the Commission, server for any proceeding in which it is document to the NRC Office of the or the presiding officer. Participants are participating; and (2) advise the General Counsel and any others who requested not to include personal Secretary that the participant will be have advised the Office of the Secretary privacy information, such as social submitting a request or petition for that they wish to participate in the security numbers, home addresses, or hearing (even in instances in which the proceeding, so that the filer need not home phone numbers in their filings, participant, or its counsel or serve the documents on those unless an NRC regulation or other law representative, already holds an NRC- participants separately. Therefore, requires submission of such issued digital ID certificate). Based upon applicants and other participants (or information. With respect to this information, the Secretary will their counsel or representative) must copyrighted works, except for limited establish an electronic docket for the apply for and receive a digital ID excerpts that serve the purpose of the hearing in this proceeding if the certificate before a hearing request/ adjudicatory filings and would Secretary has not already established an petition to intervene is filed so that they constitute a Fair Use application, electronic docket. can obtain access to the document via participants are requested not to include Information about applying for a the E-Filing system. copyrighted materials in their digital ID certificate is available on A person filing electronically using submission. NRC’s public Web site at http:// the agency’s adjudicatory E-Filing Petitions for leave to intervene must www.nrc.gov/site-help/e-submittals/ system may seek assistance by be filed no later than 20 days from the apply-certificates.html. System contacting the NRC Meta System Help date of publication of this notice. Non- requirements for accessing the E- Desk through the ‘‘Contact Us’’ link timely filings will not be entertained Submittal server are detailed in NRC’s located on the NRC Web site at http:// absent a determination by the presiding ‘‘Guidance for Electronic Submission,’’ www.nrc.gov/site-help/e- officer that the petition or request which is available on the agency’s submittals.html, by e-mail at should be granted or the contentions public Web site at http://www.nrc.gov/ [email protected], or by a toll- should be admitted, based on a site-help/e-submittals.html. Participants free call at (866) 672–7640. The NRC balancing of the factors specified in 10 may attempt to use other software not Meta System Help Desk is available CFR 2.309(c)(1)(i)–(viii). listed on the Web site, but should note between 8 a.m. and 8 p.m., Eastern The Commission will issue a notice or that the NRC’s E-Filing system does not Time, Monday through Friday, order granting or denying a hearing support unlisted software, and the NRC excluding government holidays. request or intervention petition, Meta System Help Desk will not be able Participants who believe that they designating the issues for any hearing to offer assistance in using unlisted have a good cause for not submitting that will be held and designating the software. documents electronically must file an Presiding Officer. A notice granting a If a participant is electronically exemption request, in accordance with hearing will be published in the Federal submitting a document to the NRC in 10 CFR 2.302(g), with their initial paper Register and served on the parties to the accordance with the E-Filing rule, the filing requesting authorization to hearing. participant must file the document continue to submit documents in paper Within 30 days from the date of using the NRC’s online, Web-based format. Such filings must be submitted publication of this notice, persons may submission form. In order to serve by: (1) First class mail addressed to the submit written comments regarding the documents through Electronic Office of the Secretary of the license transfer application, as provided Information Exchange, users will be Commission, U.S. Nuclear Regulatory for in 10 CFR 2.1305. The Commission required to install a Web browser plug- Commission, Washington, DC 20555– will consider and, if appropriate, in from the NRC Web site. Further 0001, Attention: Rulemaking and respond to these comments, but such information on the Web-based Adjudications Staff; or (2) courier, comments will not otherwise constitute submission form, including the express mail, or expedited delivery part of the decisional record. Comments installation of the Web browser plug-in, service to the Office of the Secretary, should be submitted to the Secretary, is available on the NRC’s public Web Sixteenth Floor, One White Flint North, U.S. Nuclear Regulatory Commission, site at http://www.nrc.gov/site-help/e- 11555 Rockville Pike, Rockville, Washington, DC 20555–0001, Attention: submittals.html. Maryland 20852, Attention: Rulemaking Rulemakings and Adjudications Staff, Once a participant has obtained a and Adjudications Staff. Participants and should cite the publication date and digital ID certificate and a docket has filing a document in this manner are page number of this Federal Register been created, the participant can then responsible for serving the document on notice. submit a request for hearing or petition all other participants. Filing is For further details with respect to this for leave to intervene. Submissions considered complete by first-class mail license transfer application, see the should be in Portable Document Format as of the time of deposit in the mail, or application dated March 30, 2011, (PDF) in accordance with NRC guidance by courier, express mail, or expedited available for public inspection at the available on the NRC public Web site at delivery service upon depositing the Commission’s Public Document Room http://www.nrc.gov/site-help/e- document with the provider of the (PDR), located at One White Flint North, submittals.html. A filing is considered service. A presiding officer, having Public File Area O1 F21, 11555 complete at the time the documents are granted an exemption request from Rockville Pike (first floor), Rockville, submitted through the NRC’s E-Filing using E-Filing, may require a participant Maryland. Publicly available documents system. To be timely, an electronic or party to use E-Filing if the presiding created or received at the NRC are filing must be submitted to the E-Filing officer subsequently determines that the accessible electronically through system no later than 11:59 p.m. Eastern reason for granting the exemption from ADAMS in the NRC Library at http:// Time on the due date. Upon receipt of use of E-Filing no longer exists. www.nrc.gov/reading-rm/adams.html. a transmission, the E-Filing system Documents submitted in adjudicatory Persons who do not have access to time-stamps the document and sends proceedings will appear in NRC’s ADAMS or who encounter problems in the submitter an e-mail notice electronic hearing docket which is accessing the documents located in

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ADAMS should contact the NRC PDR The NRC inspection identified that 1. Within 90 days of the issuance of Reference staff by telephone at 1–800– safety and security-related violations this Confirmatory Order, PSI agrees to 397–4209, or 301–415–4737 or by e-mail had occurred at PSI’s Rock Springs, review the training, certification and to [email protected]. Wyoming, office, and at temporary job security authorization of each employee Dated at Rockville, Maryland this 22nd day sites in the vicinity of the Rock Springs, performing or assisting with of August 2011. Wyoming, office during 2008 and 2009. radiography. Within 30 days of the For the Nuclear Regulatory Commission. The apparent safety violations included completion of the review, a corporate PSI’s failure to: (1) Ensure that level individual will sign a statement Farideh E. Saba, individuals acting as radiographers had indicating whether the employee is Senior Project Manager, Plant Licensing required training; (2) ensure that authorized to work with licensed Branch 2–2, Division of Operating Reactor Licensing, Office of Nuclear Reactor individuals acting as radiographer’s material. For radiographers, this Regulation. assistants had required training and that statement will include the expiration there were two qualified individuals date for their radiography training [FR Doc. 2011–22104 Filed 8–29–11; 8:45 am] present when performing radiography at required by 10 CFR 34.43 or equivalent BILLING CODE 7590–01–P temporary jobsites; (3) provide a State requirements. A copy of the radiographer’s assistant with a statement will be provided to the NUCLEAR REGULATORY personnel dosimeter to wear while employee, the employee’s immediate COMMISSION conducting radiographic operations; (4) supervisor, and the local radiation conduct annual reviews of its Radiation safety officer, as well as be kept by the [NRC–2011–0195; 030–33792; 12–16941–03 Protection Program content and corporate office. Prior to the employee (terminated); EA–10–161] implementation; (5) provide annual being assigned to a radiography crew, reports of the doses received by the person assigning work will verify In the Matter of Professional Service monitored individuals to those that the employee is qualified. PSI will Industries, Inc., Oakbrook Terrace, IL; individuals; (6) use physical barriers for implement a periodic (at least biennial) Confirmatory Order (Effective the restricted area perimeter; (7) prevent review of the qualification statements Immediately) unauthorized personnel from being for at least the next five years. This item I within the restricted area boundaries will be included as a line item in the PSI while industrial radiographic annual audit (required by 10 CFR Professional Service Industries, Inc., equipment was in use; and (8) conduct 20.1101 or the equivalent State (PSI) was the holder of Materials reasonable surveys to assure compliance requirements) of the Radiation Safety License No. 12–16941–03 issued by the with public dose limits. The security- Program for the next five years; it may U.S. Nuclear Regulatory Commission related violations are described in the be lined through for those years not (NRC or Commission) pursuant to Title non-publicly available Appendix to this requiring review. 10 of the Code of Federal Regulations Confirmatory Order. 2. Within 90 days of the issuance of (10 CFR) part 30 on September 13, 1995, The NRC investigation determined this Confirmatory Order, PSI agrees to and terminated on January 29, 2010. that a manager in the PSI Rock Springs, develop and implement procedures for The license authorized PSI to possess Wyoming, office willfully assigned an the corporate radiation safety office to and use sealed radioactive sources in individual to perform radiography on at directly perform or to observe the local performance of industrial radiographic least one occasion, knowing that the radiation safety officer’s performance of activities in Rock Springs, Wyoming, individual was not properly qualified. the field inspections/audits of and at temporary job sites within The NRC investigation also determined radiographers and radiographer Federal jurisdiction. that an individual deliberately accepted assistants required by 10 CFR 34.43(e) This Confirmatory Order is the result the assignment and performed or equivalent State requirements. The of an agreement reached during an radiography, knowing that his Industrial procedures shall define the periodicity Alternative Dispute Resolution (ADR) Radiography Radiation Safety Personnel of the inspections/audits, such that each mediation session conducted on July 11, (IRRSP) card had expired. branch office is inspected by the 2011. On July 11, 2011, the NRC and PSI corporate radiation safety staff at least II met in an ADR session mediated by a once every year. These procedures will professional mediator, arranged through be maintained and revised based on On March 31, 2009, the NRC Cornell University’s Institute on lessons learned for a minimum of five conducted an inspection at the PSI Conflict Resolution. Alternative Dispute years. These procedures will include Oakbrook Terrace, Illinois, facility, and Resolution is a process in which a safety and security areas to be evaluated on July 27 through 30, 2009, at the PSI neutral mediator with no decision- by corporate radiation staff and areas Rock Springs, Wyoming, facility and at making authority assists the parties in that will be evaluated by branch office a temporary jobsite in Wyoming. The reaching an agreement on resolving any radiation staff. NRC also continued to do in-office differences regarding the dispute. This 3. Within 90 days of the issuance of inspection through April 25, 2011. On Confirmatory Order is issued pursuant this Confirmatory Order, PSI agrees to April 10, 2009, the NRC Office of to the agreement reached during the develop and implement a disciplinary Investigations (OI) initiated an ADR process. program with a graded approach for investigation (OI Case No. 3–2009–021) radiation safety and security infractions. to determine whether management III Under the program, corporate staff will individuals at the PSI Rock Springs, In response to the NRC’s offer, PSI have the authority to take direct Wyoming, office engaged in deliberate requested use of the NRC’s ADR process disciplinary action for radiation safety misconduct by allowing uncertified to resolve differences it had with the and security issues. The disciplinary radiographers to conduct radiography NRC. During an ADR session on July 11, program will emphasize individual and by failing to ensure that qualified 2011, a preliminary settlement responsibility for radiation safety and individuals were present to maintain agreement was reached. The elements of radioactive material security, and will proper surveillance during radiographic the agreement consisted of the encourage reporting safety and security operations. following: concerns, including the employee

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hotline. Prior to implementation of the of assignment, if that assignment occurs was completed, including copies of program, PSI will train its employees on greater than 180 days after the issuance procedure changes and training the program. PSI agrees to perform of this Confirmatory Order. Verification materials, within 30 days following the biennial verification that the procedure of training will be included as a line completion of the last item (which is remains current for the next five years item in the PSI annual audit of the scheduled to be completed no later than (minimum of two verifications). This Radiation Safety Program for the next 180 days after the issuance of this item will be included as a line item in five years. Confirmatory Order). PSI also agrees to the PSI annual audit of the Radiation 6. PSI agrees to include as part of the provide the NRC a summary of its Safety Program for the next five years; annual reviews of the Radiation Safety annual reviews of the Radiation Safety it may be lined through for those years Program (including security aspects), an Program, including information about not requiring review. assessment of the effectiveness of and how this Confirmatory Order has been 4. Within 90 days of the issuance of adherence to the terms of this met for the next five years following this Confirmatory Order, PSI agrees to Confirmatory Order. The assessment issuance of this Confirmatory Order. develop, implement, and provide will be summarized and provided to all This summary shall be provided to the training to all radiation safety officers, PSI employees who have NRC within 60 days of completion of radiographers, and assistant responsibilities in the use of the annual audit. radiographers. Additionally, this radiography. The complete assessment 10. PSI agrees to provide the NRC training shall be provided to new will be provided to corporate with a minimum of eight days notice employees prior to working with management and retained for at least prior to entering NRC’s jurisdiction licensed material for the first time. five years from the date of the audit. beyond the requirements of 10 CFR Refresher training will be provided 7. [Official Use Only—Security- 150.20, for a period of three years annually (at intervals not to exceed 12 Related Information. Described in the following issuance of this Confirmatory months) thereafter for all employees non-publicly available Appendix to this Order. involved in licensed activities. Records Confirmatory Order]. 11. PSI agrees to provide written long- of training materials and course 8. Within 30 days of issuance of this term corrective actions for each of the attendees shall be maintained for at Confirmatory Order, PSI agrees to revise specific safety and security violations least five years. Verification of training procedures to increase the enclosed with the Order within 60 days will be included as a line item in the PSI independence of inspections/audits of of the issuance of this Confirmatory annual audit of the Radiation Safety each radiographer and assistant Order. Program for the next five years. The radiographer for the next two years 12. In consideration of the above training shall address at a minimum: following issuance of this Confirmatory actions on the part of PSI, NRC agrees (a) A review of requirements for safe Order. The revised procedure will have to limit the civil penalty amount in this and secure performance of radiography, at least one quarterly inspection/audit at enforcement action to $15,000. including review of PSI’s Operating and each branch office be conducted by an Accordingly, within 30 days of the date Emergency Procedures; independent auditor (corporate of this Confirmatory Order, PSI shall (b) A review of any radiation mishaps, radiation safety officer, radiation safety pay the civil penalty in the amount of audit deficiencies, or regulatory officer from a different branch office, an $15,000 in accordance with NRC violations within PSI as well as independent consultant, or another Technical Report (NUREG)/BR–0254 significant events within the industry individual meeting the NRC’s and submit to the Director, Office of (if known); requirements for a radiation safety Enforcement, U.S. Nuclear Regulatory (c) A review of the consequences of officer). As prescribed by procedure, the Commission, Washington, DC 20555, a and the potential actions that could be field audits shall be unannounced and statement indicating when and by what taken for deliberate violations of PSI the auditor shall observe PSI method payment was made. requirements; radiographers actually performing 13. In consideration of the above (d) A review of PSI’s license radiographic operations. Serious actions on the part of PSI, NRC agrees conditions and regulations governing deficiencies (such as untrained to enclose Notices of Violation to this the use of licensed material (including personnel, not wearing dosimetry, Confirmatory Order documenting the appropriate reporting requirements such unsafe operations or security issues) eight safety violations described above, as 10 CFR 30.50 and 10 CFR 34.101; and identified during the audit will be the security-related violations described employee protection requirements such discussed with the local and corporate in the non-publicly available Appendix as those contained in 10 CFR 30.7, or radiation safety officers within 24 hours to this Confirmatory Order, and the the equivalent State requirements); of the observation and a plan to correct severity level of each violation, with no (e) A review of the changes made to the problem will be put into place additional response requirements PSI procedures and policies resulting within the following 48 hours following beyond the terms specified in this from the terms of this Confirmatory the conversation. The auditor will agreement. Order. provide both the local and corporate 14. PSI makes no admission that any 5. Within 90 days of the date of this radiation safety officers with a copy of employee or former employee Confirmatory Order, PSI agrees to the audit results, including discussion deliberately violated any NRC develop and schedule a training session of areas needing improvement. The requirements and the NRC agrees not to on safety culture and the role and annual audit of the Radiation Safety pursue any further enforcement action responsibility of the radiation safety Program will include verification that in connection with events described in officer to maintain an effective safety field audit deficiencies have been the NRC’s May 16, 2011, letter to PSI. culture. The training shall be presented corrected. This does not prohibit the NRC from to each radiation safety officer within 9. PSI agrees to make a one-time taking enforcement action in accordance 180 days of the date of this submittal to the Director, Division of with the NRC Enforcement Policy if PSI Confirmatory Order. The training shall Nuclear Materials Safety, U.S. Nuclear commits similar violations in the future be conducted annually for five years Regulatory Commission, Region III, or violates this Confirmatory Order. and provided to newly assigned 2443 Warrenville Road, Lisle, IL 60532– On August 9, 2011, the licensee radiation safety officers within 30 days 4352, as to how each of the above items consented to issuing this Confirmatory

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Order with the commitments, as 2. Within 90 days of the issuance of Program for the next five years. The described in Section V below. PSI this Confirmatory Order, PSI shall training shall address at a minimum: further agreed that this Confirmatory develop and implement procedures for (a) A review of requirements for safe Order is to be effective upon issuance the corporate radiation safety office to and secure performance of radiography, and that it has waived its right to a directly perform or to observe the local including review of PSI’s Operating and hearing. radiation safety officer’s performance of Emergency Procedures; (b) A review of any radiation mishaps, IV the field inspections/audits of radiographers and radiographer audit deficiencies, or regulatory Since the licensee has agreed to take assistants required by 10 CFR 34.43(e) violations within PSI as well as additional actions to address NRC or equivalent State requirements. The significant events within the industry (if concerns, as set forth in Item III above, procedures shall define the periodicity known); the NRC has concluded that its concerns of the inspections/audits, such that each (c) A review of the consequences of can be resolved through issuance of this branch office is inspected by the and the potential actions that could be Confirmatory Order. corporate radiation safety staff at least taken for deliberate violations of PSI We find that PSI’s commitments as set once every year. These procedures shall requirements; forth in Section V are acceptable and be maintained and revised based on (d) A review of PSI’s license necessary and conclude that with these lessons learned for a minimum of five conditions and regulations governing commitments the public health and years. These procedures shall include the use of licensed material (including safety are reasonably assured. In view of safety and security areas to be evaluated appropriate reporting requirements such the foregoing, we have determined that by corporate radiation staff and areas as 10 CFR 30.50 and 10 CFR 34.101; and public health and safety require that that shall be evaluated by branch office employee protection requirements such PSI’s commitments be confirmed by this radiation staff. as those contained in 10 CFR 30.7 or the Confirmatory Order. Based on the above equivalent State requirements); and PSI’s consent, this Confirmatory 3. Within 90 days of the issuance of (e) A review of the changes made to Order is immediately effective upon this Confirmatory Order, PSI shall PSI procedures and policies resulting issuance. develop and implement a disciplinary from the terms of this Confirmatory program with a graded approach for Order. V radiation safety and security infractions. 5. Within 90 days of the date of this Accordingly, pursuant to Sections 81, Under the program, corporate staff shall Confirmatory Order, PSI shall develop 161b, 161i, 161o, 182 and 186 of the have the authority to take direct and schedule a training session on Atomic Energy Act of 1954, as amended, disciplinary action for radiation safety safety culture and the role and and the Commission’s regulations in and security issues. The disciplinary responsibility of the radiography 10 CFR 2.202 and 10 CFR part 30, it is program shall emphasize individual radiation safety officer to maintain an hereby ordered, effective immediately, responsibility for radiation safety and effective safety culture. The training that: radioactive material security, and shall shall be presented to each radiation 1. Within 90 days of the issuance of encourage reporting safety and security safety officer within 180 days of the date this Confirmatory Order, PSI shall concerns, including the employee of this Confirmatory Order. The training review the training, certification and hotline. Prior to implementation of the shall be conducted annually for five security authorization of each employee program, PSI shall train its radiography years and provided to newly assigned performing or assisting with employees on the program. PSI shall radiation safety officers within 30 days radiography. Within 30 days of the perform biennial verification that the of assignment, if that assignment occurs completion of the review, a corporate procedure remains current and that the greater than 180 days after the issuance level individual shall sign a statement program remains in effect for the next of this Confirmatory Order. Verification indicating whether the employee is five years (minimum of two of training shall be included as a line authorized to work with licensed verifications). This item shall be item in the PSI annual audit of the material. For radiographers, this included as a line item in the PSI Radiation Safety Program for the next statement shall include the expiration annual audit of the radiography five years. date for their radiography training Radiation Safety Program for the next 6. PSI shall include as part of the required by 10 CFR 34.43 or equivalent five years; it may be lined through for annual reviews of the Radiation Safety State requirements. A copy of the those years not requiring review. Program (including security-related statement shall be provided to the 4. Within 90 days of the issuance of aspects), an assessment of the employee, the employee’s immediate this Confirmatory Order, PSI shall effectiveness of and adherence to the supervisor, and the local radiation develop, implement, and provide terms of this Confirmatory Order. The safety officer, as well as be kept by the training to all radiography radiation assessment shall be summarized and corporate office. For the next five years, safety officers, radiographers, and provided to all PSI employees who have the person assigning work will verify assistant radiographers. For the next five responsibilities in the use of that the employee is qualified prior to years, this training shall be provided to radiography. The complete assessment the employee being assigned to a new radiography employees prior to shall be provided to corporate radiography crew. PSI shall implement working with licensed material for the management and retained for at least a periodic (at least biennial) review of first time. Additionally, for the next five five years from the date of the audit. the qualification statements for at least years, refresher training will be 7. [Official Use Only—Security- the next five years. This item shall be provided annually (at intervals not to Related Information. Described in the included as a line item in the PSI exceed 12 months) for all employees non-publicly available Appendix to this annual audit (required by 10 CFR involved in licensed activities. Records Confirmatory Order]. 20.1101 or the equivalent State of training materials and course 8. Within 30 days of issuance of this requirements) of the Radiation Safety attendees shall be maintained for at Confirmatory Order, PSI shall revise Program for the next five years; it may least five years. Verification of training procedures to increase the be lined through for those years not shall be included as a line item in the independence of inspections/audits of requiring review. PSI annual audit of the Radiation Safety each radiographer and assistant

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radiographer for the next two years 12. Within 30 days of the date of this this information, the Secretary will following issuance of this Confirmatory Confirmatory Order, PSI shall pay the establish an electronic docket for the Order. The revised procedure shall have civil penalty in the amount of $15,000 hearing in this proceeding if the at least one quarterly inspection/audit at in accordance with NUREG/BR–0254 Secretary has not already established an each branch office be conducted by an and submit to the Director, Office of electronic docket. independent auditor (corporate Enforcement, U.S. Nuclear Regulatory Information about applying for a radiation safety officer, radiation safety Commission, Washington, DC 20555, a digital ID certificate is available on officer from a different branch office, an statement indicating when and by what NRC’s public Web site at http:// independent consultant, or another method payment was made. www.nrc.gov/site-help/e-submittals/ individual meeting the NRC’s The Regional Administrator, Region apply-certificates.html. System requirements for a radiation safety III, NRC, may, in writing, relax or requirements for accessing the E- officer). As prescribed by procedure, the rescind any of the above conditions Submittal server are detailed in NRC’s field audits shall be unannounced and upon demonstration by PSI of good ‘‘Guidance for Electronic Submission,’’ the auditor shall observe PSI cause. which is available on the agency’s public Web site at http://www.nrc.gov/ radiographers actually performing VI radiographic operations. Serious site-help/e-submittals.html. Participants deficiencies (such as untrained Any person adversely affected by this may attempt to use other software not personnel, not wearing dosimetry, Confirmatory Order, other than PSI, may listed on the Web site, but should note unsafe operations or security issues) request a hearing within 20 days of its that the NRC’s E-Filing system does not identified during the audit shall be publication in the Federal Register. support unlisted software, and the NRC discussed with the local and corporate Where good cause is shown, Meta System Help Desk will not be able consideration will be given to extending radiation safety officers within 24 hours to offer assistance in using unlisted the time to request a hearing. A request of the observation and a plan to correct software. for extension of time must be made in the problem shall be put into place If a participant is electronically writing to the Director, Office of within the following 48 hours following submitting a document to the NRC in Enforcement, U.S. Nuclear Regulatory the conversation. The auditor shall accordance with the E-Filing rule, the Commission, Washington, DC 20555, provide both the local and corporate participant must file the document and include a statement of good cause radiation safety officers with a copy of using the NRC’s online, Web-based for the extension. the audit results, including discussion submission form. In order to serve All documents filed in the NRC’s documents through the Electronic of areas needing improvement. The adjudicatory proceedings, including a annual audit of the Radiation Safety Information Exchange, users will be request for hearing, a petition for leave required to install a Web browser plug- Program shall include verification that to intervene, any motion or other in from the NRC Web site. Further field audit deficiencies have been document filed in the proceeding prior information on the Web-based corrected. to the submission of a request for submission form, including the 9. PSI shall make a one-time submittal hearing or petition to intervene, and installation of the Web browser plug-in, to the Director, Division of Nuclear documents filed by interested is available on the NRC’s public Web Materials Safety, U.S. Nuclear governmental entities participating site at http://www.nrc.gov/site-help/e- Regulatory Commission, Region III, under 10 CFR 2.315(c), must be filed in submittals.html. 2443 Warrenville Road, Lisle, IL 60532– accordance with the NRC E-Filing rule Once a participant has obtained a 4352, as to how each of the above items (72 FR 49139, August 28, 2007). The E- digital ID certificate and a docket has was completed, including copies of Filing process requires participants to been created, the participant can then procedure changes and training submit and serve all adjudicatory submit a request for hearing or petition materials, within 30 days following the documents over the internet, or in some for leave to intervene. Submissions initial implementation of the last item cases to mail copies on electronic should be in Portable Document Format (which is scheduled to be implemented storage media. Participants may not (PDF) in accordance with NRC guidance no later than 180 days after the issuance submit paper copies of their filings available on the NRC public Web site at of this Confirmatory Order). PSI shall unless they seek an exemption in http://www.nrc.gov/site-help/e- provide the NRC a summary of its accordance with the procedures submittals.html. A filing is considered annual reviews of the Radiation Safety described below. complete at the time the documents are Program, including information about To comply with the procedural submitted through the NRC’s E-Filing how this Confirmatory Order has been requirements of E-Filing, at least ten system. To be timely, an electronic met for the next five years following days prior to the filing deadline, the filing must be submitted to the E-Filing issuance of this Confirmatory Order. participant should contact the Office of system no later than 11:59 p.m. Eastern This summary shall be provided to the the Secretary by e-mail at Time on the due date. Upon receipt of NRC within 60 days of completion of [email protected], or by telephone a transmission, the E-Filing system the annual audit. at 301–415–1677, to request: (1) A time-stamps the document and sends 10. PSI shall provide the NRC with a digital ID certificate, which allows the the submitter an e-mail notice minimum of eight days notice prior to participant (or its counsel or confirming receipt of the document. The entering NRC jurisdiction beyond the representative) to digitally sign E-Filing system also distributes an e- requirements of 10 CFR 150.20, for a documents and access the E-Submittal mail notice that provides access to the period of three years following issuance server for any proceeding in which it is document to the NRC Office of the of this Confirmatory Order. participating; and (2) advise the General Counsel and any others who 11. PSI shall provide written long- Secretary that the participant will be have advised the Office of the Secretary term corrective actions for each of the submitting a request or petition for that they wish to participate in the specific safety and security-related hearing (even in instances in which the proceeding, so that the filer need not violations enclosed with the Order participant, or its counsel or serve the documents on those within 60 days of the issuance of this representative, already holds an NRC- participants separately. Therefore, Confirmatory Order. issued digital ID certificate). Based upon applicants and other participants (or

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their counsel or representative) must copyrighted works, except for limited Wednesday, September 7, 2011—8:30 apply for and receive a digital ID excerpts that serve the purpose of the a.m. Until 12 p.m. certificate before a hearing request/ adjudicatory filings and would petition to intervene is filed so that they constitute a Fair Use application, The Subcommittee will review Draft can obtain access to the document via participants are requested not to include Final Revision 4 to Regulatory Guide the E-Filing system. copyrighted materials in their 1.82, ‘‘Water Sources for Long-Term A person filing electronically using submission. Recirculation Cooling Following a Loss- the agency’s adjudicatory E-Filing of-Coolant Accident.’’ The If a person (other than PSI) requests system may seek assistance by Subcommittee will hear presentations a hearing, that person shall set forth contacting the NRC Meta System Help by and hold discussions with the NRC Desk through the ‘‘Contact Us’’ link with particularity the manner in which staff and other interested persons located on the NRC Web site at http:// his interest is adversely affected by this regarding this matter. The www.nrc.gov/site-help/e- Confirmatory Order and shall address Subcommittee will gather information, submittals.html, by e-mail at the criteria set forth in 10 CFR 2.309(d) analyze relevant issues and facts, and [email protected], or by a toll- and (f). formulate proposed positions and free call at (866) 672–7640. The NRC If a hearing is requested by a person actions, as appropriate, for deliberation Meta System Help Desk is available whose interest is adversely affected, the by the Full Committee. between 8 a.m. and 8 p.m., Eastern Commission will issue an order Members of the public desiring to Time, Monday through Friday, designating the time and place of any provide oral statements and/or written excluding government holidays. hearing. If a hearing is held, the issue to comments should notify the Designated Participants who believe that they be considered at such hearing shall be have a good cause for not submitting Federal Official (DFO), Mrs. Ilka Berrios whether this Confirmatory Order should (Telephone 301–415–3179 or E-mail: documents electronically must file an be sustained. exemption request, in accordance with [email protected]) five days prior to In the absence of any request for 10 CFR 2.302(g), with their initial paper the meeting, if possible, so that hearing, or written approval of an filing requesting authorization to appropriate arrangements can be made. continue to submit documents in paper extension of time in which to request a Thirty-five hard copies of each format. Such filings must be submitted hearing, the provisions specified in presentation or handout should be by: (1) First class mail addressed to the Section V above shall be final 20 days provided to the DFO thirty minutes Office of the Secretary of the from the date this Confirmatory Order is before the meeting. In addition, one Commission, U.S. Nuclear Regulatory published in the Federal Register electronic copy of each presentation Commission, Washington, DC 20555– without further order or proceedings. If should be e-mailed to the DFO one day 0001, Attention: Rulemaking and an extension of time for requesting a before the meeting. If an electronic copy Adjudications Staff; or (2) courier, hearing has been approved, the cannot be provided within this express mail, or expedited delivery provisions specified in Section V shall timeframe, presenters should provide service to the Office of the Secretary, be final when the extension expires if a the DFO with a CD containing each Sixteenth Floor, One White Flint North, hearing request has not been received. presentation at least thirty minutes 11555 Rockville Pike, Rockville, A request for hearing shall not stay before the meeting. Electronic Maryland 20852, Attention: Rulemaking the immediate effectiveness of this recordings will be permitted only and Adjudications Staff. Participants order. during those portions of the meeting filing a document in this manner are that are open to the public. Detailed responsible for serving the document on For the U.S. Nuclear Regulatory procedures for the conduct of and all other participants. Filing is Commission. participation in ACRS meetings were considered complete by first-class mail Dated this 18th day of August 2011. published in the Federal Register on as of the time of deposit in the mail, or Mark A. Satorius, October 21, 2010, (75 FR 65038–65039). by courier, express mail, or expedited Regional Administrator, NRC Region III. Detailed meeting agendas and meeting delivery service upon depositing the [FR Doc. 2011–22109 Filed 8–29–11; 8:45 am] transcripts are available on the NRC document with the provider of the BILLING CODE 7590–01–P Web site at http://www.nrc.gov/reading- service. A presiding officer, having rm/doc-collections/acrs. Information granted an exemption request from regarding topics to be discussed, using E-Filing, may require a participant NUCLEAR REGULATORY changes to the agenda, whether the or party to use E-Filing if the presiding COMMISSION meeting has been canceled or officer subsequently determines that the rescheduled, and the time allotted to reason for granting the exemption from Advisory Committee on Reactor present oral statements can be obtained use of E-Filing no longer exists. Safeguards (ACRS); Meeting of the from the website cited above or by Documents submitted in adjudicatory ACRS Subcommittee on Thermal proceedings will appear in NRC’s contacting the identified DFO. Hydraulics Phenomena; Notice of Moreover, in view of the possibility that electronic hearing docket which is Meeting available to the public at http:// the schedule for ACRS meetings may be _ adjusted by the Chairman as necessary ehd.nrc.gov/EHD Proceeding/home.asp, The ACRS Subcommittee on Thermal unless excluded pursuant to an order of to facilitate the conduct of the meeting, Hydraulics Phenomena will hold a persons planning to attend should check the Commission, or the presiding meeting on September 7, 2011, Room T– officer. Participants are requested not to with these references if such 2B3, 11545 Rockville Pike, Rockville, rescheduling would result in a major include personal privacy information, Maryland. such as social security numbers, home inconvenience. addresses, or home phone numbers in The entire meeting will be open to If attending this meeting, please their filings, unless an NRC regulation public attendance. contact Mr. Theron Brown (Telephone or other law requires submission of such The agenda for the subject meeting 240–888–9835) to be escorted to the information. With respect to shall be as follows: meeting room.

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Dated: August 17, 2011. Combined Licenses for Vogtle NUCLEAR REGULATORY Cayetano Santos, Electric Generating Plant, Units 3 COMMISSION Chief, Technical Support Branch, Advisory and 4, and Limited Work Committee on Reactor Safeguards. Authorizations (Public Meeting); Request for a License To Import [FR Doc. 2011–22108 Filed 8–29–11; 8:45 am] (Contact: Rochelle Bavol, 301–415– Radioactive Waste BILLING CODE 7590–01–P 1651). Pursuant to 10 CFR 110.70 (b) ‘‘Public This meeting will be webcast live at Notice of Receipt of an Application,’’ the Web address—http://www.nrc.gov. please take notice that the Nuclear NUCLEAR REGULATORY Regulatory Commission (NRC) has COMMISSION Week of October 3, 2011—Tentative received the following request for an [NRC–2011–0006] There are no meetings scheduled for import license. Copies of the request are the week of October 3, 2011. available electronically through ADAMS Sunshine Federal Register Notice and can be accessed through the Public * * * * * Electronic Reading Room (PERR) link AGENCY HOLDING THE MEETINGS: Nuclear * The schedule for Commission http://www.nrc.gov/reading-rm.html at Regulatory Commission. meetings is subject to change on short the NRC Homepage. DATE: Weeks of August 29, September 5, notice. To verify the status of meetings, A request for a hearing or petition for 12, 19, 26, and October 3, 2011. call (recording)—(301) 415–1292. leave to intervene may be filed within PLACE: Commissioners’ Conference Contact person for more information: thirty days after publication of this Room, 11555 Rockville Pike, Rockville, Rochelle Bavol, (301) 415–1651. notice in the Federal Register. Any Maryland. * * * * * request for hearing or petition for leave STATUS: Public and Closed. to intervene shall be served by the The NRC Commission Meeting requestor or petitioner upon the Schedule can be found on the Internet Week of August 29, 2011 applicant, the office of the General at: http://www.nrc.gov/public-involve/ Tuesday, August 30, 2011 Counsel, U.S. Nuclear Regulatory public-meetings/schedule.html. Commission, Washington, DC 20555; 8:55 a.m. Affirmation Session (Public * * * * * Meeting) (Tentative) the Secretary, U.S. Nuclear Regulatory Final Rule: Enhancements to The NRC provides reasonable Commission, Washington, DC 20555; Emergency Preparedness accommodation to individuals with and the Executive Secretary, U.S. Regulations (10 CFR part 50 and 10 disabilities where appropriate. If you Department of State, Washington, DC CFR part 52) (RIN–3150–Al10) need a reasonable accommodation to 20520. (Tentative) participate in these public meetings, or A request for a hearing or petition for need this meeting notice or the leave to intervene may be filed with the This meeting will be Webcast live at NRC electronically in accordance with the Web address—http://www.nrc.gov. transcript or other information from the public meetings in another format (e.g. NRC’s E–Filing rule promulgated in 9 a.m. Information Briefing on braille, large print), please notify Bill August 2007, 72 FR 49139 (Aug. 28, Inspections, Tests, Analyses, and Dosch, Chief, Work Life and Benefits 2007). Information about filing Acceptance Criteria (ITAAC) electronically is available on the NRC’s Related Activities (Public Meeting); Branch, at 301–415–6200, TDD: 301– 415–2100, or by e-mail at public Web site at http://www.rnc.gov/ (Contact: Aida Rivera-Varona, 301– site-help/e-submittals.html. To ensure 415–4001) [email protected]. Determinations on requests for reasonable timely electronic filing, at least 5 (five) This meeting will be Webcast live at accommodation will be made on a case- days prior to the filing deadline, the the Web address—http://www.nrc.gov. by-case basis. petitioner/requestor should contact the Office of the Secretary by e-mail at Week of September 5, 2011—Tentative * * * * * [email protected], or by calling There are no meetings scheduled for This notice is distributed (301) 415–1677, to request a digital ID the week of September 5, 2011. electronically to subscribers. If you no certificate and allow for the creation of Week of September 12, 2011—Tentative longer wish to receive it, or would like an electronic docket. to be added to the distribution, please In addition to a request for hearing or There are no meetings scheduled for contact the Office of the Secretary, petition for leave to intervene, written the week of September 12, 2011. Washington, DC 20555 (301–415–1969), comments, in accordance with 10 CFR Week of September 19, 2011—Tentative or send an e-mail to 110.81, should be submitted within [email protected]. thirty (30) days after publication of this There are no meetings scheduled for notice in the Federal Register to Office Dated: August 25, 2011. the week of September 19, 2011. of the Secretary, U.S. Nuclear Richard J. Laufer, Week of September 26, 2011—Tentative Regulatory Commission, Washington, Technical Coordinator, Office of the DC 20555, Attention: Rulemaking and Tuesday, September 27, 2011 Secretary. Adjudications. 9 a.m. Mandatory Hearing—Southern [FR Doc. 2011–22267 Filed 8–26–11; 4:15 pm] The information concerning this Nuclear Operating Co., et al.; BILLING CODE 7590–01–P import license application follows.

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NRC IMPORT LICENSE APPLICATION [Description of Material]

Name of applicant date of application date received Material type Total quantity End use Country application No. from docket No.

GE Hitachi Nuclear Energy, Radioactive waste consisting Up to 210 Cobalt-60 sealed Recycling, forensic testing or China LLC. August 1, 2011, Au- of used Cobalt-60 radio- sources. Combined total storage and disposition. gust 5, 2011, IW030. active sealed sources. activity level for all sources not to exceed 7955 TBq. 11005957 ......

For the Nuclear Regulatory Commission. I. Introduction Postal Service requests that the China Dated this19th day of August 2011 at On August 16, 2011, the Postal Post 2011 Agreement be included Rockville, Maryland. Service filed a notice, pursuant to 39 within the Inbound Competitive Multi- Scott Moore, CFR 3015.5, that it has entered into an Service Agreement with Foreign Postal Deputy Director, Office of International additional Inbound Competitive Multi- Operators 1 product. Id. at 3. Programs. Service Agreements with Foreign Postal In support of its Notice, the Postal [FR Doc. 2011–22102 Filed 8–29–11; 8:45 am] Operators 1 agreement.1 The Notice Service filed four attachments as BILLING CODE 7590–01–P concerns the inbound portion of a follows: • Multi-Product Bilateral Agreement with Attachment 1—a redacted copy of the China Post 2011 Agreement; China Post Group (China Post 2011 • POSTAL REGULATORY COMMISSION Agreement) that the Postal Service seeks Attachment 2—a certified statement to add to the Inbound Competitive required by 39 CFR 3015.5(c)(2); [Docket No. CP2011–68; Order No. 817] • Multi-Service Agreement with Foreign Attachment 3—a redacted copy of Governors’ Decision No. 10–3 which New Postal Product Postal Operators 1 product. In Order No. 546, the Commission establishes prices and classifications for AGENCY: Postal Regulatory Commission. approved the Inbound Competitive Inbound Competitive Multi-Service Agreements with Foreign Postal ACTION: Notice. Multi-Service Agreement with Foreign Postal Operators 1 product and a Operators agreements, proposed MCS SUMMARY: The Commission is noticing a functionally equivalent agreement, language, formulas for prices, recently-filed Postal Service request to Koninklijke TNT Post BV and TNT Post certification of the Governors’ vote and enter into an additional agreement Pakketservice Benelux BV (TNT certification of compliance with 39 under the ‘‘Inbound Competitive Multi- Agreement). The Notice states that for U.S.C.3633(a); and • Service Agreements with Foreign Postal other competitive products, the Attachment 4—an application for Operators 1’’ product offering. This Commission has authorized functionally non-public treatment of materials to document invites public comments on equivalent agreements to be included maintain redacted portions of the the request and addresses several within the product, provided that they agreement and supporting documents related procedural steps. meet the requirements of 39 U.S.C. under seal. 2 China Post 2011 Agreement. The DATES: Comments are due: August 29, 3633. The Postal Service asserts that its Postal Service filed the instant contract 2011. filing demonstrates that the China Post 2011 Agreement fits within the Mail pursuant to 39 CFR 3015.5 and in ADDRESSES: Submit comments Classification Schedule (MCS) language accordance with Order No. 546. The electronically by accessing the ‘‘Filing in Governors’ Decision No. 10–3 Postal Service states that the Online’’ link in the banner at the top of originally filed in Docket Nos. MC2010– competitive services in the China Post the Commission’s Web site (http:// 34 and CP2010–95. Additionally, it 2011 Agreement include rates for Air www.prc.gov) or by directly accessing contends that the China Post 2011 CP, Surface CP, and EMS, requires the Commission’s Filing Online system Agreement to deliver inbound Air performance metrics for late delivery, at https://www.prc.gov/prc-pages/filing- Parcel Post (Air CP), Surface Parcel Post late information transmission and online/login.aspx. Commenters who (Surface CP) and Express Mail Service missing delivery information and cannot submit their views electronically (EMS) in the United States is imposes associated penalties. Id. at 3. should contact the person identified in functionally equivalent to the agreement The Postal Service states it intends for the FOR FURTHER INFORMATION CONTACT to deliver inbound Air CP, Surface CP the effective date for the rates for section as the source for case-related and EMS in the TNT Agreement. The inbound Air CP, Surface CP and EMS to information for advice on alternatives to be January 1, 2012.3 Id. at 3, Attachment electronic filing. 1 Notice of United States Postal Service of Filing 1 at 2. It maintains that the rates in the FOR FURTHER INFORMATION CONTACT: Functionally Equivalent Inbound Competitive agreement are intended to remain in Multi-Service Agreement with a Foreign Postal Stephen L. Sharfman, General Counsel, Operator, August 16, 2011 (Notice). See also Docket at 202–789–6820 (case-related Nos. MC2010–34 and CP2010–95, Order Adding 3 Article 22 of the China Post 2011 Agreement information) or [email protected] Inbound Competitive Multi-Service Agreements provides that if an effective date for the settlement with Foreign Postal Operators 1 to the Competitive rates for EMS in the China Post 2011 Agreement is (electronic filing assistance). Product List and Approving Included Agreement, established, the China Post–United States Bilateral SUPPLEMENTARY INFORMATION: September 29, 2010 (Order No. 546). Agreement that was approved in Docket Nos. 2 See Docket No. CP2009–50, Order Granting MC2010–13 and CP2010–12 will terminate at 11:59 I. Introduction Clarification and Adding Global Expedited Package p.m. on the day prior to the effective date of the II. Notice of Filing Services 2 to the Competitive Product List, August settlement rates for EMS in the China Post 2011 III. Ordering Paragraphs 28, 2009 (Order No. 290). Agreement. Id. at 3–4 n.6; id. Attachment 1 at 6.

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effect for one year from the effective matters raised by the Postal Service’s online/login.aspx. Commenters who date unless terminated sooner. Id. at 3– Notice. cannot submit their views electronically 4. The China Post 2011 Agreement The Commission appoints James F. should contact the person identified in provides that it becomes effective after Callow to serve as Public Representative the FOR FURTHER INFORMATION CONTACT all regulatory approvals have been in this docket. section as the source for case-related received, acceptance of specific Comments. Interested persons may information for advice on alternatives to business rules by both parties, submit comments on whether the Postal electronic filing. notification to China Post, and mutual Service’s filings in the captioned docket FOR FURTHER INFORMATION CONTACT: agreement on an effective date. Id. are consistent with the policies of 39 Stephen L. Sharfman, General Counsel, Attachment 1 at 2. It includes a table for U.S.C. 3632, 3633 or 39 CFR part 3015. at 202–789–6820 (case-related intended effective dates applicable to Comments are due no later than August information) or [email protected] settlement rates for specific products 29, 2011. The public portions of this (electronic filing assistance). that is variable based on notification filing can be accessed via the SUPPLEMENTARY INFORMATION: from the Postal Service. The agreement Commission’s Web site (http:// I. Introduction also provides that prior to expiration, www.prc.gov). II. Notice of Filing the parties will determine whether to III. Ordering Paragraphs III. Ordering Paragraphs extend or modify the agreement. Id. at I. Introduction 7–8. The agreement may, however, be It is ordered: terminated by either party on not less 1. The Commission establishes Docket On August 16, 2011, the Postal than 30 days’ written notice. Id. at 3. No. CP2011–68 for consideration of the Service filed a notice, pursuant to 39 Functional equivalence. The Postal matters raised in this docket. CFR 3010.40 et seq. that it has entered Service asserts that the China Post 2011 2. Pursuant to 39 U.S.C. 505, James F. into an additional Inbound Market Agreement is substantially similar to the Callow is appointed to serve as officer Dominant Multi-Service Agreements inbound portion of the TNT Agreement of the Commission (Public with Foreign Postal Operators 1 based on the products being offered and Representative) to represent the agreement.1 The Notice concerns the the agreement’s cost characteristics. Id. interests of the general public in this inbound portion of a Multi-Product at 5. The Postal Service identifies proceeding. Bilateral Agreement with China Post 3. Comments by interested persons in differences that distinguish the instant Group (China Post 2011 Agreement) that this proceeding are due no later than agreement from the TNT Agreement. Id. the Postal Service seeks to add to the August 29, 2011. at 5–8. These distinctions include Inbound Market Dominant Multi- 4. The Secretary shall arrange for different foreign postal operators, Service Agreement with Foreign Postal publication of this order in the Federal execution of a separate accord, customs Operators 1 product. Register. inspection, termination results, In Order No. 549, the Commission confidentiality terms, effective date, rate By the Commission. approved the Inbound Market Dominant tables, term, content restrictions, and Shoshana M. Grove, Multi-Service Agreement with Foreign other differences. Id. Secretary. Postal Operators 1 product and the Strategic Bilateral Agreement Between The Postal Service asserts that the [FR Doc. 2011–22023 Filed 8–29–11; 8:45 am] United States Postal Service and China Post 2011 Agreement and the BILLING CODE 7710–FW–P TNT Agreement incorporate the same Koninklijke TNT Post BV and TNT Post cost attributes and methodology and the Pakketservice Benelux BV (TNT relevant cost and market characteristics POSTAL REGULATORY COMMISSION Agreement) and the China Post Group— United States Postal Service Letter Post are similar, if not the same, for the [Docket No. R2011–7; Order No. 818] China Post 2011 Agreement and the Bilateral Agreement, and the China Post Group—United States Postal Service TNT Agreement. Id. at 8. Despite some New Postal Product and Rate Letter Post Bilateral Agreement (China differences, the Postal Service asserts Adjustment that the China Post 2011 Agreement is, Post 2010 Agreement). In Order No. 700, ‘‘‘functionally equivalent in all AGENCY: Postal Regulatory Commission. the Commission approved the pertinent respects’’’ to the TNT ACTION: Notice. functionally equivalent HongKong Post 2 Agreement previously filed. Id. Agreement. The Postal Service asserts SUMMARY: (Footnote omitted.) The Commission is noticing a that the China Post 2011 Agreement is recently filed Postal Service request to In its Notice, the Postal Service similar to the China Post 2010 enter into an additional agreement and maintains that certain portions of the Agreement, TNT Agreement, and the Type 2 rate adjustment under the agreement, prices, and related financial HongKong Post Agreement. The Postal ‘‘Inbound Competitive Multi-Service information should remain under seal. Service requests that the China Post Agreements with Foreign Postal Id. at 2, Attachment 4. 2011 Agreement be included within the Operators 1’’ product offering. This Inbound Market Dominant Multi- The Postal Service concludes that the document invites public comments on China Post 2011 Agreement complies the request and addresses several 1 Notice of United States Postal Service of Type with 39 U.S.C. 3633 and is functionally related procedural steps. 2 Rate Adjustment, and Notice of Filing equivalent to the TNT Agreement. Functionally Equivalent Agreement, August 16, Therefore, it requests that the DATES: Comments are due: August 30, 2011 (Notice). See also Docket Nos. MC2010–35, Commission add the China Post 2011 2011. R2010–5 and R2010–6, Order Adding Inbound Market Dominant Multi-Service Agreements with Agreement to the Inbound Competitive ADDRESSES: Submit comments Foreign Postal Operators 1 to the Market Dominant Multi-Service Agreement with Foreign electronically by accessing the ‘‘Filing Product List and Approving Included Agreement, Postal Operators 1 product. Id. at 8. Online’’ link in the banner at the top of September 30, 2010 (Order No. 549). the Commission’s Web site (http:// 2 See Docket No. R2011–4, Order Approving Rate II. Notice of Filing Adjustment for HongKong Post-United States www.prc.gov) or by directly accessing Service Letter Post Bilateral Agreement Negotiated The Commission establishes Docket the Commission’s Filing Online system Service Agreement, March 18, 2011 (Order No. No. CP2011–68 for consideration of at https://www.prc.gov/prc-pages/filing- 700).

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Service Agreement with Foreign Postal information on mailflows within the is consistent with the policies of 39 Operators 1 product. Notice at 2. annual compliance review process, the U.S.C. 3622 and 39 CFR part 3010.40. In support of its Notice, the Postal Postal Service proposes that no special Comments are due no later than August Service filed two attachments as data collection plan be established for 30, 2011.3 The public portions of these follows: this agreement. With respect to filings can be accessed via the • Attachment 1—an application for performance measurement, it requests Commission’s Web site (http:// non-public treatment of materials to that the Commission exempt this www.prc.gov). maintain redacted portions of the agreement from separate reporting The Commission appoints James F. agreement and supporting documents requirements under 39 CFR 3055.3 as Callow to serve as Public Representative under seal; and determined in Order Nos. 549 and 700 in this docket. • Attachment 2—a redacted copy of for the agreements in Docket Nos. the China Post 2011 Agreement. R2010–5, R2010–6, and R2011–4, III. Ordering Paragraphs China Post 2011 Agreement. The respectively. Id. at 7. It is ordered: Postal Service filed the instant contract The Postal Service advances reasons 1. The Commission establishes Docket pursuant to 39 CFR 3010.40 et seq. The why the agreement is functionally No. R2011–7 to consider matters raised Postal Service states that the proposed equivalent to the previously filed China by the Postal Service’s Notice. inbound market dominant rates are Post 2010 Agreement, TNT and 2. Pursuant to 39 U.S.C. 505, James F. intended to become effective on October HongKong Post Agreements and Callow is appointed to serve as officer 1, 2011 after the rates that are currently contains the same attributes and of the Commission (Public in effect under the China Post 2010 methodology. Id. at 8–10. It asserts that Representative) to represent the Agreement expires on September 30, the instant agreement fits within the interests of the general public in this 2011. Id. at 3. The China Post 2011 Mail Classification Schedule language proceeding. Agreement provides that it becomes for the Inbound Multi-Service 3. Comments by interested persons in effective after all regulatory approvals Agreements with the Foreign Postal this proceeding are due no later than have been received, acceptance of Operators 1 product. Additionally, it August 30, 2011. specific business rules by both parties, states that the China Post 2011 4. The Secretary shall arrange for notification to China Post, and mutual Agreement includes similar terms and publication of this order in the Federal agreement on an effective date. Id. conditions, e.g., is with a foreign postal Register. Attachment 2 at 2. The agreement operator, conforms to a common By the Commission. however, may be terminated by either description, and relates to rates for Shoshana M. Grove, party no less than 30 days’ written Letter Post tendered from the postal notice. Id. at 3. It states that public operator’s territory with accompanying Secretary. notice of the rates is provided through ancillary services. Id. at 9. [FR Doc. 2011–22057 Filed 8–29–11; 8:45 am] its filing at least 45 days before the The Postal Service identifies specific BILLING CODE 7710–FW–P proposed effective date. Notice at 3. The terms that distinguish the instant Postal Service and China Post Group, agreement from the three existing the postal operator for China, are parties agreements. These distinctions include POSTAL REGULATORY COMMISSION to the agreement. The Postal Service the term, purpose of the agreement, [Docket No. CP2011–69; Order No. 822] relates that the agreement covers effective date, confidentiality terms, inbound Letter Post, in the form of signatory, revision of product stream New Postal Product letters, flats, small packets, and bags, rates, detailed air conveyance charges, AGENCY: Postal Regulatory Commission. and International Registered Mail specifications for letters, related service for Letter Post along with an updates, and other changes. Id. at 10– ACTION: Notice. ancillary service for delivery 12. The Postal Service contends that the SUMMARY: The Commission is noticing a confirmation scanning for Letter Post instant agreement is nonetheless recently-filed Postal Service request to small packets. Id. at 3–4. functionally equivalent to existing Requirements under part 3010. The enter into an additional agreement agreements and ‘‘[t]he Postal Service (referred to as Norway Post Agreement) Postal Service states that the China Post does not consider that the specified 2011 Agreement is expected to generate under the ‘‘Inbound Competitive Multi- differences affect either the fundamental Service Agreements with Foreign Postal financial performance improvements service the Postal Service is offering or including, e.g., delivery confirmation Operators 1’’ product offering. This the fundamental structure of the document invites public comments on service, barcodes for delivery contracts.’’ Id. at 12. confirmation, sortations for routing, and the request and addresses several In its Notice, the Postal Service related procedural steps. service updates. It contends that these maintains that certain portions of the improvements should enhance mail agreement, prices, and related financial DATES: Comments are due: August 31, efficiency and other functions for Letter information should remain under seal. 2011. Post items under the agreement. Id. at 5. Id. at 12; id. Attachment 1. ADDRESSES: Submit comments The Postal Service asserts that the The Postal Service concludes that the electronically by accessing the ‘‘Filing agreement should not cause China Post 2011 Agreement should be Online’’ link in the banner at the top of unreasonable harm in the marketplace added as a functionally equivalent the Commission’s Web site (http:// since it is unaware of any significant agreement under the Inbound Market www.prc.gov) or by directly accessing competition in this market. Id. at 5–6. Dominant Multi-Service Agreements the Commission’s Filing Online system Under 39 CFR 3010.43, the Postal with Foreign Postal Operators 1 Service is required to submit a data product. Id. at 13. 3 To provide interested persons sufficient time to collection plan. The Postal Service comment in these proceedings, the Commission indicates that it intends to report II. Notice of Filing finds it appropriate to waive the 10-day comment period specified in 39 CFR 3010.44(a)(5). The information on this agreement through Interested persons may submit modest extension will not prejudice either party to its Annual Compliance Report. While comments on whether the Postal the agreement given the 45 days’ advance notice indicating its willingness to provide Service’s filing in the captioned docket required for Type 2 rate adjustments.

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at https://www.prc.gov/prc-pages/filing- language, formulas for prices, information should remain under seal. online/login.aspx. Commenters who certification of the Governors’ vote and Id. at 2; Attachment 1. cannot submit their views electronically certification of compliance with 39 The Postal Service concludes that the should contact the person identified in U.S.C. 3633(a); Norway Post Agreement complies with the FOR FURTHER INFORMATION CONTACT • Attachment 3—a redacted copy of 39 U.S.C. 3633 and is functionally section as the source for case-related the Norway Post Agreement; and equivalent to the TNT Agreement. information for advice on alternatives to • Attachment 4—a certified statement Notice at 4. Therefore, it requests that electronic filing. required by 39 CFR 3015.5(c)(2). the Commission add the Norway Post FOR FURTHER INFORMATION CONTACT: Norway Post Agreement. The Postal Agreement to the Inbound Competitive Stephen L. Sharfman, General Counsel, Service filed the instant contract Multi-Service Agreement with Foreign at 202–789–6820 (case-related pursuant to 39 CFR 3015.5 and in Postal Operators 1 product. Id. accordance with Order No. 546. The information) or [email protected] II. Notice of Filing (electronic filing assistance). Postal Service states that the inbound air parcel post competitive services in SUPPLEMENTARY INFORMATION: The Commission establishes Docket the Norway Post Agreement conform to I. Introduction No. CP2011–69 for consideration of II. Notice of Filing the proposed MCS language for Inbound matters raised by the Postal Service’s III. Ordering Paragraphs Multi-Service Agreements with Foreign Notice. Postal Operators 1. The Postal Service The Commission appoints James F. I. Introduction states it will notify the mailer of the Callow to serve as Public Representative On August 18, 2011, the Postal effective date within 30 days after all in this docket. Service filed a notice, pursuant to 39 necessary regulatory approvals have Comments. Interested persons may CFR 3015.5, that it has entered into an been received. Id. The agreement submit comments on whether the Postal additional Inbound Competitive Multi- provides that the parties will mutually Service’s filings in the captioned docket Service Agreements with Foreign Postal agree on the effective date. Id. at 3; are consistent with the policies of 39 Operators 1 agreement.1 The Notice Attachment 3 at 1. The parties intend U.S.C. 3632, 3633 or 39 CFR part 3015. concerns a bilateral agreement for for the agreement to become effective on Comments are due no later than August inbound competitive services with October 1, 2011, and to remain in effect 31, 2011. The public portions of this Posten Norge AS (Norway Post for 1 year with the option for renewal filing can be accessed via the Agreement) that the Postal Service seeks for another year. Id. at 2; Attachment 3 Commission’s Web site (http:// to add to the Inbound Competitive at 1. www.prc.gov). Multi-Service Agreement with Foreign Functional equivalence. The Postal III. Ordering Paragraphs Postal Operators 1 product. Service asserts that the Norway Post In Order No. 546, the Commission Agreement and the TNT Agreement It is ordered: approved the Inbound Competitive incorporate the same cost and market 1. The Commission establishes Docket Multi-Service Agreement with Foreign characteristics. Notice at 3. It states that No. CP2011–69 for consideration of the Postal Operators 1 product and a the TNT Agreement includes similar matters raised in this docket. functionally equivalent agreement, terms and conditions, e.g., is an 2. Pursuant to 39 U.S.C. 505, James F. Koninklijke TNT Post BV and TNT Post agreement with a foreign postal operator Callow is appointed to serve as officer Pakketservice Benelux BV (TNT and conforms to a common description. of the Commission (Public Agreement). The Postal Service asserts Id. Additionally, the Postal Service Representative) to represent the that its filing demonstrates that the contends that the Norway Post interests of the general public in this Norway Post Agreement fits within the Agreement is similar in cost proceeding. Mail Classification Schedule (MCS) characteristics with the TNT Agreement 3. Comments by interested persons in language in Governors’ Decision No. 10– other than certain minor adjustments, this proceeding are due no later than 3 originally filed in Docket Nos. such as expression of costs in different August 31, 2011. MC2010–34 and CP2010–95. Notice at currencies, which are slight 4. The Secretary shall arrange for 2. modifications that do not affect the publication of this order in the Federal In support of its Notice, the Postal agreement’s functional equivalence. Id. Register. It maintains that because of the limited Service filed four attachments as By the Commission. follows: changes, the cost characteristics are Shoshana M. Grove, • Attachment 1—an application for essentially the same as the TNT non-public treatment of materials to Agreement.2 Secretary. maintain redacted portions of the The Postal Service identifies specific [FR Doc. 2011–22131 Filed 8–29–11; 8:45 am] agreement and supporting documents terms that distinguish the instant BILLING CODE under seal; agreement from the existing agreement. • Attachment 2—a redacted copy of These distinctions include the term, Governors’ Decision No. 10–3 that products, services, applicable law and POSTAL REGULATORY COMMISSION establishes prices and classifications for dispute resolution methods. Id. at 3–4. [Docket No. A2011–50; Order No. 820] Inbound Competitive Multi-Service Despite some minor differences, the Agreements with Foreign Postal Postal Service asserts that the Norway Post Office Closing Operators agreements, proposed MCS Post Agreement is functionally equivalent to the TNT Agreement AGENCY: Postal Regulatory Commission. 1 Notice of United States Postal Service of Filing previously filed. Id. at 4. ACTION: Notice. Additional Functionally Equivalent Agreement, In its Notice, the Postal Service August 18, 2011 (Notice); see also Docket Nos. maintains that certain portions of the SUMMARY: This document informs the MC2010–34 and CP2010–95, Order Adding public that an appeal of the closing of Inbound Competitive Multi-Service Agreements agreement, prices, and related financial with Foreign Postal Operators 1 to the Competitive the Prairie Hill, Texas post office has Product List and Approving Included Agreement, 2 The Postal Service’s Notice refers to the TNT been filed. It identifies preliminary September 29, 2010 (Order No. 546). Agreement as the ‘‘baseline agreement.’’ Id. steps and provides a procedural

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schedule. Publication of this document not it will continue to provide a found on the Commission’s Web site or will allow the Postal Service, maximum degree of effective and by contacting the Commission’s docket petitioners, and others to take regular postal services to the community section at [email protected] or via appropriate action. (see 39 U.S.C. 404(d)(2)(A)(iii)); and (3) telephone at 202–789–6846. DATES: Administrative record due (from the Postal Service failed to adequately The Commission reserves the right to Postal Service): September 2, 2011; consider the economic savings resulting redact personal information which may deadline for notices to intervene: from the closure (see 39 U.S.C. infringe on an individual’s privacy September 16, 2011. See the Procedural 404(d)(2)(A)(iv)). rights from documents filed in this Schedule in the SUPPLEMENTARY After the Postal Service files the proceeding. INFORMATION section for other dates of administrative record and the Intervention. Persons, other than interest. Commission reviews it, the Commission Petitioner and respondent, wishing to be ADDRESSES: Submit comments may find that there are more legal issues heard in this matter are directed to file electronically by accessing the ‘‘Filing than those set forth above, or that the a notice of intervention. See 39 CFR Online’’ link in the banner at the top of Postal Service’s determination disposes 3001.111(b). Notices of intervention in the Commission’s Web site (http:// of one or more of those issues. The this case are to be filed on or before www.prc.gov) or by directly accessing deadline for the Postal Service to file the September 16, 2011. A notice of the Commission’s Filing Online system applicable administrative record with intervention shall be filed using the at https://www.prc.gov/prc-pages/filing- the Commission is September 2, 2011. Internet (Filing Online) at the online/login.aspx. Commenters who See 39 CFR 3001.113. In addition, the Commission’s Web site unless a waiver cannot submit their views electronically due date for any responsive pleading by is obtained for hardcopy filing. See 39 should contact the person identified in the Postal Service to this notice is CFR 3001.9(a) and 3001.10(a). the FOR FURTHER INFORMATION CONTACT September 2, 2011. Further procedures. By statute, the section as the source for case-related Availability; Web site posting. The Commission is required to issue its information for advice on alternatives to Commission has posted the appeal and decision within 120 days from the date electronic filing. supporting material on its Web site at it receives the appeal. See 39 U.S.C. FOR FURTHER INFORMATION CONTACT: http://www.prc.gov. Additional filings 404(d)(5). A procedural schedule has Stephen L. Sharfman, General Counsel, in this case and participants’ been developed to accommodate this at 202–789–6820 (case-related submissions also will be posted on the statutory deadline. In the interest of information) or [email protected] Commission’s Web site, if provided in expedition, in light of the 120-day (electronic filing assistance). electronic format or amenable to decision schedule, the Commission may SUPPLEMENTARY INFORMATION: Notice is conversion, and not subject to a valid request the Postal Service or other hereby given that, pursuant to 39 U.S.C. protective order. Information on how to participants to submit information or 404(d), on August 18, 2011, the use the Commission’s Web site is memoranda of law on any appropriate Commission received a petition for available online or by contacting the issue. As required by the Commission review of the Postal Service’s Commission’s webmaster via telephone rules, if any motions are filed, responses determination to close the Prairie Hill at 202–789–6873 or via electronic mail are due 7 days after any such motion is post office in Prairie Hill, Texas. The at [email protected]. filed. See 39 CFR 3001.21. petition was filed by Stell Waldrop, Jr. The appeal and all related documents It is ordered: are also available for public inspection (Petitioner) and is postmarked August 1. The Postal Service shall file the in the Commission’s docket section. 12, 2011. The Commission hereby applicable administrative record Docket section hours are 8 a.m. to 4:30 institutes a proceeding under 39 U.S.C. regarding this appeal no later than p.m., eastern time, Monday through 404(d)(5) and establishes Docket No. September 2, 2011. Friday, except on Federal government A2011–50 to consider Petitioner’s 2. Any responsive pleading by the appeal. If Petitioner would like to holidays. Docket section personnel may be contacted via electronic mail at prc- Postal Service to this notice is due no further explain his position with later than September 2, 2011. supplemental information or facts, [email protected] or via telephone at Petitioner may either file a Participant 202–789–6846. 3. The procedural schedule listed Statement on PRC Form 61 or file a brief Filing of documents. All filings of below is hereby adopted. with the Commission no later than documents in this case shall be made 4. Pursuant to 39 U.S.C. 505, Malin September 22, 2011. using the Internet (Filing Online) Moench is designated officer of the Categories of issues apparently raised. pursuant to Commission rules 9(a) and Commission (Public Representative) to Petitioner contends that: (1) The Postal 10(a) at the Commission’s Web site, represent the interests of the general Service failed to consider the effect of http://www.prc.gov, unless a waiver is public. the closing on the community (see 39 obtained. See 39 CFR 3001.9(a) and 5. The Secretary shall arrange for U.S.C. 404(d)(2)(A)(i)); (2) the Postal 3001.10(a). Instructions for obtaining an publication of this notice and order in Service failed to consider whether or account to file documents online may be the Federal Register.

PROCEDURAL SCHEDULE

August 18, 2011 ...... Filing of Appeal. September 2, 2011 ...... Deadline for the Postal Service to file the applicable administrative record in this appeal. September 2, 2011 ...... Deadline for the Postal Service to file any responsive pleading. September 16, 2011 ...... Deadline for notices to intervene (see 39 CFR 3001.111(b)). September 22, 2011 ...... Deadline for Petitioner’s Form 61 or initial brief in support of petition (see 39 CFR 3001.115(a) and (b)). October 12, 2011 ...... Deadline for answering brief in support of the Postal Service (see 39 CFR 3001.115(c)). October 27, 2011 ...... Deadline for reply briefs in response to answering briefs (see 39 CFR 3001.115(d)). November 3, 2011 ...... Deadline for motions by any party requesting oral argument; the Commission will schedule oral argument only when it is a necessary addition to the written filings (see 39 CFR 3001.116).

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PROCEDURAL SCHEDULE—Continued December 12, 2011 ...... Expiration of the Commission’s 120-day decisional schedule (see 39 U.S.C. 404(d)(5)).

By the Commission. 404(d)(5) and establishes Docket No. 3001.10(a). Instructions for obtaining an Shoshana M. Grove, A2011–49 to consider Petitioners’ account to file documents online may be Secretary. appeal. If Petitioners would like to found on the Commission’s Web site or [FR Doc. 2011–22055 Filed 8–29–11; 8:45 am] further explain their position with by contacting the Commission’s docket BILLING CODE 7710–FW–P supplemental information or facts, section at [email protected] or via Petitioners may either file a Participant telephone at 202–789–6846. Statement on PRC Form 61 or file a brief The Commission reserves the right to POSTAL REGULATORY COMMISSION with the Commission no later than redact personal information which may September 22, 2011. [Docket No. A2011–49; Order No. 819] infringe on an individual’s privacy Categories of issues apparently raised. rights from documents filed in this Post Office Closing Petitioners contend that: (1) The Postal proceeding. Service failed to consider the effect of Intervention. Persons, other than AGENCY: Postal Regulatory Commission. the closing on the community (see 39 Petitioners and respondent, wishing to ACTION: Notice. U.S.C. 404(d)(2)(A)(i)); and (2) and failure of the Postal Service to follow be heard in this matter are directed to SUMMARY: This document informs the procedures required by law regarding file a notice of intervention. See 39 CFR public that an appeal of the closing of closures (see 39 U.S.C. 404(d)(5)(B)). 3001.111(b). Notices of intervention in the Pinehurst Village Station, Pinehurst, After the Postal Service files the this case are to be filed on or before North Carolina has been filed. It administrative record and the September 16, 2011. A notice of identifies preliminary steps and Commission reviews it, the Commission intervention shall be filed using the provides a procedural schedule. may find that there are more legal issues Internet (Filing Online) at the Publication of this document will allow than the one set forth above, or that the Commission’s Web site unless a waiver the Postal Service, petitioners, and Postal Service’s determination disposes is obtained for hardcopy filing. See 39 others to take appropriate action. of one or more of those issues. The CFR 3001.9(a) and 3001.10(a). DATES: Administrative record due (from deadline for the Postal Service to file the Further procedures. By statute, the Postal Service): September 2, 2011; applicable administrative record with Commission is required to issue its deadline for notices to intervene: the Commission is September 2, 2011. decision within 120 days from the date September 16, 2011. See the Procedural See 39 CFR 3001.113. In addition, the it receives the appeal. See 39 U.S.C. Schedule in the SUPPLEMENTARY due date for any responsive pleading by 404(d)(5). A procedural schedule has INFORMATION section for other dates of the Postal Service to this notice is been developed to accommodate this interest. September 2, 2011. statutory deadline. In the interest of Availability; Web site posting. The ADDRESSES: Submit comments expedition, in light of the 120-day Commission has posted the appeal and electronically by accessing the ‘‘Filing decision schedule, the Commission may supporting material on its Web site at Online’’ link in the banner at the top of request the Postal Service or other http://www.prc.gov. Additional filings the Commission’s Web site (http:// participants to submit information or in this case and participants’ www.prc.gov) or by directly accessing memoranda of law on any appropriate submissions also will be posted on the the Commission’s Filing Online system issue. As required by the Commission Commission’s Web site, if provided in at https://www.prc.gov/prc-pages/filing- rules, if any motions are filed, responses electronic format or amenable to online/login.aspx. Commenters who are due 7 days after any such motion is conversion, and not subject to a valid cannot submit their views electronically filed. See 39 CFR 3001.21. protective order. Information on how to It is ordered: should contact the person identified in use the Commission’s Web site is FOR FURTHER INFORMATION CONTACT the available online or by contacting the 1. The Postal Service shall file the section as the source for case-related Commission’s webmaster via telephone applicable administrative record information for advice on alternatives to at 202–789–6873 or via electronic mail regarding this appeal no later than electronic filing. at [email protected]. September 2, 2011. FOR FURTHER INFORMATION CONTACT: The appeal and all related documents 2. Any responsive pleading by the Stephen L. Sharfman, General Counsel, are also available for public inspection Postal Service to this notice is due no at 202–789–6820 (case-related in the Commission’s docket section. later than September 2, 2011. information) or [email protected] Docket section hours are 8 a.m. to 4:30 3. The procedural schedule listed (electronic filing assistance). p.m., eastern time, Monday through below is hereby adopted. SUPPLEMENTARY INFORMATION: Notice is Friday, except on Federal government 4. Pursuant to 39 U.S.C. 505, Malin hereby given that, pursuant to 39 U.S.C. holidays. Docket section personnel may Moench is designated officer of the 404(d), on August 18, 2011, the be contacted via electronic mail at prc- Commission (Public Representative) to Commission received a petition for [email protected] or via telephone at represent the interests of the general review of the Postal Service’s 202–789–6846. public. determination to close the Pinehurst Filing of documents. All filings of 5. The Secretary shall arrange for Village Station in Pinehurst, North documents in this case shall be made publication of this notice and order in Carolina. The petition was filed by John using the Internet (Filing Online) the Federal Register. M. Marcum and Bettye M. Marcum pursuant to Commission rules 9(a) and (Petitioners) and is postmarked August 10(a) at the Commission’s Web site, By the Commission. 12, 2011. The Commission hereby http://www.prc.gov, unless a waiver is Shoshana M. Grove, institutes a proceeding under 39 U.S.C. obtained. See 39 CFR 3001.9(a) and Secretary.

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PROCEDURAL SCHEDULE

August 18, 2011 ...... Filing of Appeal. September 2, 2011 ...... Deadline for the Postal Service to file the applicable administrative record in this appeal. September 2, 2011 ...... Deadline for the Postal Service to file any responsive pleading. September 16, 2011 ...... Deadline for notices to intervene (see 39 CFR 3001.111(b)). September 22, 2011 ...... Deadline for Petitioners’ Form 61 or initial brief in support of petition (see 39 CFR 3001.115(a) and (b)). October 12, 2011 ...... Deadline for answering brief in support of the Postal Service (see 39 CFR 3001.115(c)). October 27, 2011 ...... Deadline for reply briefs in response to answering briefs (see 39 CFR 3001.115(d)). November 3, 2011 ...... Deadline for motions by any party requesting oral argument; the Commission will schedule oral argument only when it is a necessary addition to the written filings (see 39 CFR 3001.116). December 12, 2011 ...... Expiration of the Commission’s 120-day decisional schedule (see 39 U.S.C. 404(d)(5)).

[FR Doc. 2011–22056 Filed 8–29–11; 8:45 am] Dated: August 25, 2011. certificates did not expressly indicate BILLING CODE 7710–FW–P Elizabeth M. Murphy, the CDs could be redeemed early, a Secretary. number of DTC participants expressed [FR Doc. 2011–22217 Filed 8–26–11; 11:15 am] their concerns that the CDs had been BILLING CODE 8011–01–P sold to investors without disclosing the SECURITIES AND EXCHANGE possibility of early redemption. COMMISSION Over the past several months, DTC SECURITIES AND EXCHANGE has worked with industry Sunshine Act Meeting COMMISSION representatives, including the Retail Fixed Income Committee of The Notice is hereby given, pursuant to [Release No. 34–65186; File No. SR–DTC– Securities Industry and Financial 2011–06] the provisions of the Government in the Markets Association (‘‘SIFMA’’), to Sunshine Act, Public Law 94–409, that better understand the issues related to the Securities and Exchange Self-Regulatory Organizations; The Depository Trust Company; Order the early redemption of CDs that do not Commission will hold a Closed Meeting contain express early redemption on Thursday, September 1, 2011 at 2 Granting Approval of a Proposed Rule Change To Amend Rules Relating to provisions. As a result, DTC is p.m. amending its Redemption Service Guide Commissioners, Counsel to the the Early Redemption of Certificates of Deposit to state that DTC will not process early Commissioners, the Secretary to the redemptions or calls on CDs unless (1) Commission, and recording secretaries August 23, 2011. There is an explicit provision in the will attend the Closed Meeting. Certain I. Introduction master certificate that permits early staff members who have an interest in redemption by the issuer and specifies the matters also may be present. On July 1, 2011, The Depository Trust the payment to be made in connection The General Counsel of the Company (‘‘DTC’’) filed proposed rule therewith or (2) written consent to an Commission, or his designee, has change SR–DTC–2011–06 with the early redemption in a form designated certified that, in his opinion, one or Securities and Exchange Commission by DTC is obtained by the issuer from more of the exemptions set forth in 5 (‘‘Commission’’) pursuant to Section all of the holders of the CD. U.S.C. 552b(c)(3), (5), (7), 9(B) and (10) 19(b)(1) of the Securities Exchange Act Furthermore, in the event that an issuer and 17 CFR 200.402(a)(3), (5), (7), 9(ii) of 1934 (‘‘Act’’).1 Notice of the proposed sends such payment to DTC in and (10), permit consideration of the rule change was published in the contravention of the rule, DTC will scheduled matters at the Closed Federal Register on July 18, 2011.2 The return the payment, less any costs Meeting. Commission received no comment associated with facilitating the Commissioner Paredes, as duty letters. For the reasons discussed below, attempted redemption and return of officer, voted to consider the items the Commission is granting approval of funds, to the issuer. listed for the Closed Meeting in a closed the proposed rule change. III. Discussion session. II. Description The subject matter of the Closed Section 17A(b)(3)(F) of the Act Meeting scheduled for Thursday, Recently, several issuers of requires, among other things, that the September 1, 2011 will be: Certificates of Deposit (‘‘CDs’’) have rules of a clearing agency be designed to contacted DTC in an attempt to redeem promote the prompt and accurate Institution and settlement of injunctive or ‘‘call’’ their CDs prior to the maturity actions; clearance and settlement of securities date. The master certificate of these CDs transactions and to remove Institution and settlement of did not expressly specify that they were administrative proceedings; and impediments to and perfect the callable or subject to early redemption. mechanism of a national system for the Other matters relating to enforcement In some instances, the issuer offered to prompt and accurate clearance and proceedings. pay DTC participants the principal plus settlement of securities transactions.3 At times, changes in Commission interest through the date of maturity. In The Commission finds that DTC’s rule priorities require alterations in the other instances, the issuer offered to pay change should clarify the terms and scheduling of meeting items. principal plus interest only through the conditions under which DTC will For further information and to date of redemption. Because the master process the early redemption of certain ascertain what, if any, matters have been CDs and thus should facilitate the added, deleted or postponed, please 1 15 U.S.C. 78s(b)(1). prompt and accurate clearance and contact: 2 Securities Exchange Act Release No. 64864 (July 12, 2011), 76 FR 42149 (July 18, 2011). A technical settlement of transactions involving The Office of the Secretary at (202) correction to this notice was made on July 18, 2011. 551–5400. 76 FR 45309 (July 28, 2011). 3 15 U.S.C. 78q–1(b)(3)(F).

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these CDs and should remove Commission is publishing this notice to charged per member firm. For 2011, the impediments to and perfect the solicit comments on the proposed rule Exchange proposes to charge firms on a mechanism of a national system for the change from interested persons. pro-rated basis beginning September 1, prompt and accurate clearance and 2011. Beginning in January 2012, the I. Self-Regulatory Organization’s Exchange plans to charge an Annual settlement of securities transactions, Statement of the Terms of Substance of Membership Fee which will be assessed and, in general, to protect investors and the Proposed Rule Change the public interest. on all EDGA members as of a date Accordingly, for the reasons stated The Exchange proposes to amend the determined by EDGA in January of each above the Commission believes that the fee schedule assessed on members, year. For any month in which a firm is proposed rule change is consistent with effective September 1, 2011, to approved for membership with the DTC’s obligation under Section 17A of establish: (i) An Annual Membership Exchange after the January renewal the Act and the rules and regulations Fee; (ii) a monthly Trading Rights Fee; period, the Annual Membership Fee thereunder.4 and (iii) a monthly fee for each member will be pro-rated beginning on the date Market Participant Identifier (‘‘MPID’’) on which membership is approved. The IV. Conclusion in excess of five MPIDs. The text of the pro-rated fee will be calculated based on On the basis of the foregoing, the proposed rule change is available on the the remaining trading days in that year, Commission finds that the proposed Exchange’s Web site at http:// and assessed in the month following rule change is consistent with the www.directedge.com, at the Exchange’s membership approval. For example, if a requirements of the Act, particularly principal office, and at the Public firm applies for membership with the with the requirements of Section 17A of Reference Room of the Commission. Exchange on or before the close of the the Act, and the rules and regulations II. Self-Regulatory Organization’s January renewal period, and is approved thereunder. Statement of the Purpose of, and for membership in the same month, the It is therefore ordered, pursuant to Statutory Basis for, the Proposed Rule new Member will pay a $2000 Annual Section 19(b)(2) of the Act, that the Change Membership fee. However, if a firm proposed rule change (File No. SR– applies and is accepted for membership DTC–2011–06) be and hereby is In its filing with the Commission, the with the Exchange in February 2012, the approved. self-regulatory organization included new Member will be assessed a pro- statements concerning the purpose of, For the Commission by the Division of rated Annual Membership Fee for the and basis for, the proposed rule change period beginning the first trading day in Trading and Markets, pursuant to delegated and discussed any comments it received authority.5 February in which they are a member on the proposed rule change. The text through the end of 2012. The fee will be Elizabeth M. Murphy, of these statements may be examined at Secretary. assessed in the next month’s billing the places specified in Item IV below. cycle. In this case, March 2012. [FR Doc. 2011–22098 Filed 8–29–11; 8:45 am] The self-regulatory organization has In addition, the fee will not be BILLING CODE 8011–01–P prepared summaries, set forth in refundable in the event that the firm Sections A, B and C below, of the most ceases to be an EDGA member following significant aspects of such statements. the date on which fees are assessed. SECURITIES AND EXCHANGE However, if a Member is pending a COMMISSION A. Self-Regulatory Organization’s Statement of the Purpose of, and voluntary termination of rights as a [Release No. 34–65188; File No. SR–EDGA– Statutory Basis for, the Proposed Rule Member pursuant to Rule 2.8 prior to 2011–27] Change the date any Annual Membership Fee for a given year will be assessed (i.e., Self-Regulatory Organizations; EDGA Purpose September 1, 2011, January 1, 2012, etc.) Exchange, Inc.; Notice of Filing and To help pay for the costs of regulating and the Member does not utilize the Immediate Effectiveness of Proposed EDGA members, the Exchange proposes facilities of EDGA 3 during such time, Rule Change To Amend the EDGA Fee to establish the following membership then the Member will not be obligated Schedule To Establish an Annual fees: (i) An Annual Membership Fee for to pay the Annual Membership Fee. For Membership Fee, Monthly Trading EDGA members; (ii) a Trading Rights example, if a Member submits a request Rights Fee, and a Monthly MPID Fee Fee for EDGA members; and (iii) a fee to terminate their membership prior to close of business on August 31, 2011, August 24, 2011. for each MPID approved by EDGA for use by a member firm on EDGA’s the Member will not be charged any Pursuant to Section 19(b)(1) of the systems in excess of five. The Exchange Annual Membership Fee regardless of Securities Exchange Act of 1934 (the believes that each fee is warranted in how long it takes for the Member’s ‘‘Act’’),1 and Rule 19b–4 thereunder,2 order to provide for a dedicated source voluntary termination of membership to notice is hereby given that on August of revenue to be applied toward funding become effective. Prior to the September 19, 2011, the EDGA Exchange, Inc. (the the overall regulation of the Exchange 1, 2011 implementation date for these ‘‘Exchange’’ or the ‘‘EDGA’’) filed with and its members. On July 26, 2011, the fee changes only, the Exchange will also the Securities and Exchange Exchange provided its Members with waive monthly Trading Rights and Commission (‘‘Commission’’) the notice about these proposed fees, which MPID fees, as described below, if a proposed rule change as described in would be implemented on September 1, Member is pending a voluntary Items I, II, and III below, which items 2011, pending SEC approval. termination of rights pursuant to Rule have been prepared by the self- 2.8 and the Member does not utilize the regulatory organization. The Annual Membership Fee & Trading Rights Fee facilities of EDGA during such time. This waiver of such fees by the 4 In approving this proposal, the Commission has First, EDGA proposes to charge an considered its impact on efficiency, competition, Exchange will again occur regardless of and capital formation. 15 U.S.C. 78c(f). Annual Membership fee of $2,000 to how long it takes for the Member’s 5 17 CFR 200.30–3(a)(12). each member firm of EDGA which will 1 15 U.S.C. 78s(b)(1). support their exchange membership for 3 This would include Members adding, removing, 2 17 CFR 240.19b–4. the calendar year. The fee will be or routing liquidity to EDGA.

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voluntary termination of membership to desks or to support sponsored access Basis become effective. The Exchange believes participants. EDGA notes that certain EDGA believes that the proposed rule this to be appropriate since ordinarily member firms possess many changes are consistent with the there is a 30 day waiting period before underutilized MPIDs through which provisions of Section 6 of the Act,7 in such resignation shall take effect very little or no activity occurs. These general, and Section 6(b)(4) of the Act,8 provided the conditions provided for in unused or underutilized MPIDs provide in particular, because it provides for the 4 Rule 2.8 are satisfied. negligible benefit to the market, yet equitable allocation of reasonable dues, Second, EDGA proposes to charge represent an administrative and fees and other charges among members member firms a monthly Trading Rights regulatory burden to EDGA. In order to and issuers and other persons using any Fee of $300 per month for the ability to address the burden of administering and facility or system that EDGA operates or trade on the EDGA Exchange. Firms will supporting multiple MPIDs for member controls, and it does not unfairly be charged per month, regardless of the firms, EDGA proposes to assess a discriminate between customers, volume of shares traded. For any month monthly fee of $250 per month issuers, brokers or dealers. in which a firm is approved for beginning September 1, 2011 for each First, the Exchange believes that membership with the Exchange, the MPID approved by the Exchange for use assessing an Annual Membership Fee monthly Trading Rights Fee will be pro- by a member firm on EDGA’s systems in and a Trading Rights Fee provides an rated beginning on the date on which equitable allocation of reasonable dues, membership is approved. The pro-rated excess of five MPIDs. The MPID Fee will be assessed on a pro-rated basis by fees and other charges among its fee will be calculated based on the members and other persons using its remaining trading days in that month. In charging the firm based on the trading day in the month during which an MPID facilities. The Exchange makes all any month in which the firm terminates services and products subject to these membership with the Exchange, the greater than five becomes effective for use. If the MPID is terminated within a fees available on a non-discriminatory monthly Trading Rights Fee will be pro- basis to similarly situated recipients. rated based on the number of trading month, the MPID Fee will be charged in full regardless of the number of trading EDGA believes the Annual Membership days which have elapsed in that month. Fee and monthly Trading Rights Fee are days elapsed or remaining in that The Exchange plans to implement the a reasonable and equitable method of month. The Exchange believes that this Trading Rights Fee and charge firms ensuring that its fees fund a greater practice is appropriate because of the directly beginning September 1, 2011. portion of the cost of regulating the EDGA believes that even with these administrative costs associated with EDGA market, and that even after proposed fees, the cost of EDGA disabling MPIDs. The Exchange also assessing these fees, the overall cost of membership is generally lower than the believes that assessing a fee on 5 EDGA membership is reasonable as cost of membership in other SROs. supplemental MPIDs will benefit the compared with the costs of membership Market Participant Identifier (‘‘MPID’’) markets and investors because such fee in other SROs. Fee will promote efficiency in MPID use. Second, with respect to MPID fees, member firms will continue to have An MPID is a four character identifier The Exchange notes that NASDAQ discretion to request EDGA approval to that is approved by the Exchange and currently assesses a Supplemental MPID use additional MPIDs on EDGA. Use of assigned to the member firm for use on Fee of $1,000 per month, per MPID, for more than five MPIDs is voluntary and the EDGA exchange to identify the firm any MPID in excess of one. Similarly, solely determined by the member firm’s on the orders sent to the Exchange and the New York Stock Exchange (‘‘NYSE’’) needs. The Exchange believes that resulting executions. Many member charges fees for access to its floor which are analogous to the proposed MPID fee. charging for more than five MPIDs is firms request the use of one MPID as the reasonable given that other exchanges identifier for their exchange The NYSE fees are based on the number of individuals that a member firm charge members for having more than transactions. However, a member firm 9 wishes to employ on the floor of the one MPID. The proposed Market may request additional MPIDs for use by Participant Identifier Fee will be separate business units and trading exchange and include, among other things, an annual fee of $40,000 per imposed on all member firms equally based on the number of MPIDs 4 trading license per floor broker, a $5,000 These conditions include: (i) The Exchange’s approved for use on EDGA. EDGA also receipt of such written resignation; (ii) the annual fee per handheld device used on believes that the proposed fee will member’s having satisfied all outstanding the floor, and a $250 annual badge indebtedness due the Exchange; (iii) any Exchange encourage efficiency in member firm’s maintenance fee per badge. Under the investigation or disciplinary action brought against use of MPIDs. the Member having reached a final disposition; and proposed MPID Fee schedule, EDGA Further, the market for transaction (iv) any examination of such Member in process member firms would not be charged for having been completed, and all exceptions arising execution and routing services is highly out of such examination having been satisfactorily maintaining five or less MPIDs, but competitive. Broker-dealers currently resolved. would pay the proposed $250 monthly have numerous alternative venues for 5 See, e.g., NASDAQ OMX Group, Inc., Equity MPID fee only if the member maintains their order flow, including multiple Rule 7001, at http://nasdaq.cchwallstreet.com/ more than five MPIDS. In addition, competing self-regulatory organizations NASDAQTools/PlatformViewer.asp?selectednode= members would be charged a proposed chp%5F1%5F1%5F4%5F4&manual=%2F markets, as well as broker-dealers and nasdaq%2Fmain%2Fnasdaq%2Dequityrules%2F $2,000 annual membership fee and aggregators such as electronic (assessing a $3,000 annual membership fee and trading rights fee of $300 per month, communications networks. A member $500 per month trading rights fee on members); totaling $5,600 annually.6 Thus, EDGA New York Stock Exchange Price List 2011, at http:// www.nyse.com/pdfs/nyse_equities_pricelist.pdf believes that even with the proposed 7 15 U.S.C. 78f. (assessing a $40,000 annual trading license fee for MPID fee, the cost of EDGA membership 8 15 U.S.C. 78f(b)(4). the first two licenses held by a member is generally lower than the cost of 9 See, e.g., NASDAQ OMX Group, Inc., Equity organization, among other itemized regulatory and membership in other SROs. Rule 7001, at http://nasdaq.cchwallstreet.com/ trading rights fees); Chicago Stock Exchange Fees NASDAQTools/PlatformViewer.asp?selectednode= and Assessments, at http://www.chx.com/content/ chp%5F1%5F1%5F4%5F4&manual=%2F Participant_Information/Downloadable_Docs/ 6 See supra note 5 (explaining the fee structure of nasdaq%2Fmain%2Fnasdaq%2Dequityrules%2F Rules/CHX_Fee_Schedule_04252011.pdf (assessing the NASDAQ OMX Group, Inc., the New York (assessing a Supplemental MPID Fee of $1,000 per a $7,200 annual trading permit fee). Stock Exchange, and the Chicago Stock Exchange). month, per MPID, for any MPID in excess of one).

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firm is able to select any venue of which Securities and Exchange Commission, SECURITIES AND EXCHANGE it is a member or participant to send its 100 F Street, NE., Washington, DC COMMISSION order flow. As such, if member firms 20549–1090. believe that the proposed (i) Annual All submissions should refer to File [Release No. 34–65189; File No. SR–EDGX– membership fee, (ii) trading rights fee, 2011–26] or (iii) fee for MPIDs in excess of five, Number SR–EDGA–2011–27. This file number should be included on the is excessive they may easily choose to Self-Regulatory Organizations; EDGX subject line if e-mail is used. To help the move their order flow elsewhere. EDGA Exchange, Inc.; Notice of Filing and believes that its proposed fees are Commission process and review your Immediate Effectiveness of Proposed comparable to, and lower than, comments more efficiently, please use Rule Change To Amend the EDGX Fee analogous NASDAQ and NYSE fees. only one method. The Commission will Schedule To Establish an Annual post all comments on the Commission’s B. Self-Regulatory Organization’s Membership Fee, Monthly Trading Statement on Burden on Competition Internet Web site (http://www.sec.gov/ Rights Fee, and a Monthly MPID Fee rules/sro.shtml). Copies of the The proposed rule change does not submission, all subsequent August 24, 2011. impose any burden on competition that amendments, all written statements Pursuant to Section 19(b)(1) of the is not necessary or appropriate in with respect to the proposed rule furtherance of the purposes of the Act. Securities Exchange Act of 1934 (the change that are filed with the ‘‘Act’’),1 and Rule 19b–4 thereunder,2 C. Self-Regulatory Organization’s Commission, and all written notice is hereby given that on August Statement on Comments on the communications relating to the 19, 2011, the EDGX Exchange, Inc. (the Proposed Rule Change Received From proposed rule change between the ‘‘Exchange’’ or the ‘‘EDGX’’) filed with Members, Participants or Others Commission and any person, other than the Securities and Exchange The Exchange has not solicited, and those that may be withheld from the Commission (‘‘Commission’’) the does not intend to solicit, comments on public in accordance with the proposed rule change as described in this proposed rule change. The provisions of 5 U.S.C. 552, will be Items I, II, and III below, which items Exchange has not received any available for Web site viewing and have been prepared by the self- unsolicited written comments from printing in the Commission’s Public regulatory organization. The members or other interested parties. Reference Room, 100 F Street, NE., Commission is publishing this notice to III. Date of Effectiveness of the Washington, DC 20549, on official solicit comments on the proposed rule Proposed Rule Change and Timing for business days between the hours of 10 change from interested persons. Commission Action a.m. and 3 p.m. Copies of the filing also I. Self-Regulatory Organization’s will be available for inspection and The foregoing rule change has become Statement of the Terms of Substance of effective pursuant to Section 19(b)(3) of copying at the principal office of the the Proposed Rule Change the Act 10 and Rule 19b–4(f)(2) 11 Exchange. All comments received will thereunder. At any time within 60 days be posted without change; the The Exchange proposes to amend the of the filing of such proposed rule Commission does not edit personal fee schedule assessed on members, change, the Commission summarily may identifying information from effective September 1, 2011, to temporarily suspend such rule change if submissions. You should submit only establish: (i) An Annual Membership it appears to the Commission that such information that you wish to make Fee; (ii) a monthly Trading Rights Fee; action is necessary or appropriate in the available publicly. All submissions and (iii) a monthly fee for each member public interest, for the protection of should refer to File Number SR–EDGA– Market Participant Identifier (‘‘MPID’’) investors, or otherwise in furtherance of 2011–27 and should be submitted on or in excess of five MPIDs. The text of the the purposes of the Act. before September 20, 2011. proposed rule change is available on the Exchange’s Web site at http:// IV. Solicitation of Comments For the Commission, by the Division of www.directedge.com, at the Exchange’s Interested persons are invited to Trading and Markets, pursuant to delegated principal office, and at the Public 12 submit written data, views, and authority. Reference Room of the Commission. arguments concerning the foregoing, Elizabeth M. Murphy, including whether the proposed rule Secretary. II. Self-Regulatory Organization’s Statement of the Purpose of, and change is consistent with the Act. [FR Doc. 2011–22130 Filed 8–29–11; 8:45 am] Statutory Basis for, the Proposed Rule Comments may be submitted by any of BILLING CODE 8011–01–P the following methods: Change Electronic Comments In its filing with the Commission, the • Use the Commission’s Internet self-regulatory organization included comment form (http://www.sec.gov/ statements concerning the purpose of, rules/sro.shtml); or and basis for, the proposed rule change • Send an e-mail to rule- and discussed any comments it received [email protected]. Please include File on the proposed rule change. The text Number SR–EDGA–2011–27 on the of these statements may be examined at subject line. the places specified in Item IV below. The self-regulatory organization has Paper Comments prepared summaries, set forth in • Send paper comments in triplicate Sections A, B and C below, of the most to Elizabeth M. Murphy, Secretary, significant aspects of such statements.

10 15 U.S.C. 78s(b)(3)(A). 1 15 U.S.C. 78s(b)(1). 11 17 CFR 19b–4(f)(2). 12 17 CFR 200.30–3(a)(12). 2 17 CFR 240.19b–4.

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A. Self-Regulatory Organization’s However, if a Member is pending a EDGA believes that even with these Statement of the Purpose of, and voluntary termination of rights as a proposed fees, the cost of EDGA Statutory Basis for, the Proposed Rule Member pursuant to Rule 2.8 prior to membership is generally lower than the Change the date any Annual Membership Fee cost of membership in other SROs.5 for a given year will be assessed (i.e., Purpose Market Participant Identifier (‘‘MPID’’) September 1, 2011, January 1, 2012, etc.) Fee To help pay for the costs of regulating and the Member does not utilize the EDGA members, the Exchange proposes facilities of EDGA 3 during such time, An MPID is a four character identifier to establish the following membership then the Member will not be obligated that is approved by the Exchange and fees: (i) An Annual Membership Fee for to pay the Annual Membership Fee. For assigned to the member firm for use on EDGA members; (ii) a Trading Rights example, if a Member submits a request the EDGX exchange to identify the firm Fee for EDGA members; and (iii) a fee to terminate their membership prior to on the orders sent to the Exchange and for each MPID approved by EDGA for close of business on August 31, 2011, resulting executions. Many member use by a member firm on EDGA’s the Member will not be charged any firms request the use of one MPID as the systems in excess of five. The Exchange Annual Membership Fee regardless of identifier for their exchange believes that each fee is warranted in how long it takes for the Member’s transactions. However, a member firm order to provide for a dedicated source voluntary termination of membership to may request additional MPIDs for use by of revenue to be applied toward funding become effective. Prior to the September separate business units and trading the overall regulation of the Exchange 1, 2011 implementation date for these desks or to support sponsored access and its members. On July 26, 2011, the fee changes only, the Exchange will also participants. EDGX notes that certain Exchange provided its Members with waive monthly Trading Rights and member firms possess many notice about these proposed fees, which MPID fees, as described below, if a underutilized MPIDs through which would be implemented on September 1, Member is pending a voluntary very little or no activity occurs. These 2011, pending SEC approval. termination of rights pursuant to Rule unused or underutilized MPIDs provide negligible benefit to the market, yet Annual Membership Fee and Trading 2.8 and the Member does not utilize the represent an administrative and Rights Fee facilities of EDGA during such time. This waiver of such fees by the regulatory burden to EDGX. In order to First, EDGA proposes to charge an address the burden of administering and Annual Membership fee of $2,000 to Exchange will again occur regardless of how long it takes for the Member’s supporting multiple MPIDs for member each member firm of EDGA which will firms, EDGX proposes to assess a voluntary termination of membership to support their exchange membership for monthly fee of $250 per month become effective. The Exchange believes the calendar year. The fee will be beginning September 1, 2011 for each this to be appropriate since ordinarily charged per member firm. For 2011, the MPID approved by the Exchange for use there is a 30 day waiting period before Exchange proposes to charge firms on a by a member firm on EDGX’s systems in such resignation shall take effect pro-rated basis beginning September 1, excess of five MPIDs. The MPID Fee will provided the conditions provided for in 2011. Beginning in January 2012, the be assessed on a pro-rated basis by Rule 2.8 are satisfied.4 Exchange plans to charge an Annual charging the firm based on the trading Membership Fee which will be assessed Second, EDGA proposes to charge day in the month during which an MPID on all EDGA members as of a date member firms a monthly Trading Rights greater than five becomes effective for determined by EDGA in January of each Fee of $300 per month for the ability to use. If the MPID is terminated within a year. For any month in which a firm is trade on the EDGA Exchange. Firms will month, the MPID Fee will be charged in approved for membership with the be charged per month, regardless of the full regardless of the number of trading Exchange after the January renewal volume of shares traded. For any month days elapsed or remaining in that period, the Annual Membership Fee in which a firm is approved for month. The Exchange believes that this will be pro-rated beginning on the date membership with the Exchange, the practice is appropriate because of the on which membership is approved. The monthly Trading Rights Fee will be pro- administrative costs associated with pro-rated fee will be calculated based on rated beginning on the date on which disabling MPIDs. The Exchange also the remaining trading days in that year, membership is approved. The pro-rated believes that assessing a fee on and assessed in the month following fee will be calculated based on the supplemental MPIDs will benefit the membership approval. For example, if a remaining trading days in that month. In markets and investors because such fee firm applies for membership with the any month in which the firm terminates will promote efficiency in MPID use. Exchange on or before the close of the membership with the Exchange, the The Exchange notes that NASDAQ January renewal period, and is approved monthly Trading Rights Fee will be pro- currently assesses a Supplemental MPID for membership in the same month, the rated based on the number of trading Fee of $1,000 per month, per MPID, for new Member will pay a $2,000 Annual days which have elapsed in that month. Membership fee. However, if a firm The Exchange plans to implement the 5 See, e.g., NASDAQ OMX Group, Inc., Equity applies and is accepted for membership Trading Rights Fee and charge firms Rule 7001, at http://nasdaq.cchwallstreet.com/ with the Exchange in February 2012, the directly beginning September 1, 2011. NASDAQTools/PlatformViewer.asp?selectednode= chp%5F1%5F1%5F4%5F4&manual=%2 new Member will be assessed a pro- Fnasdaq%2Fmain%2Fnasdaq%2Dequityrules%2F rated Annual Membership Fee for the 3 This would include Members adding, removing, (assessing an $3,000 annual membership fee and period beginning the first trading day in or routing liquidity to EDGA. $500 per month trading rights fee on members); February in which they are a member 4 These conditions include: (i) The Exchange’s New York Stock Exchange Price List 2011, at receipt of such written resignation; (ii) the http://www.nyse.com/pdfs/nyse_equities_pricelist. through the end of 2012. The fee will be member’s having satisfied all outstanding pdf (assessing a $40,000 annual trading license fee assessed in the next month’s billing indebtedness due the Exchange; (iii) any Exchange for the first two licenses held by a member cycle. In this case, March 2012. investigation or disciplinary action brought against organization, among other itemized regulatory and In addition, the fee will not be the Member having reached a final disposition; and trading rights fees); Chicago Stock Exchange Fees (iv) any examination of such Member in process and Assessments, at http://www.chx.com/content/ refundable in the event that the firm having been completed, and all exceptions arising Participant_Information/Downloadable_Docs/ ceases to be an EDGA member following out of such examination having been satisfactorily Rules/CHX_Fee_Schedule_04252011.pdf (assessing the date on which fees are assessed. resolved. a $7,200 annual trading permit fee).

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any MPID in excess of one. Similarly, discretion to request EDGX approval to thereunder. At any time within 60 days the New York Stock Exchange (‘‘NYSE’’) use additional MPIDs on EDGX. Use of of the filing of such proposed rule charges fees for access to its floor which more than five MPIDs is voluntary and change, the Commission summarily may are analogous to the proposed MPID fee. solely determined by the member firm’s temporarily suspend such rule change if The NYSE fees are based on the number needs. The Exchange believes that it appears to the Commission that such of individuals that a member firm charging for more than five MPIDs is action is necessary or appropriate in the wishes to employ on the floor of the reasonable given that other exchanges public interest, for the protection of exchange and include, among other charge members for having more than investors, or otherwise in furtherance of things, an annual fee of $40,000 per one MPID.9 The proposed Market the purposes of the Act. Participant Identifier Fee will be trading license per floor broker, a $5,000 IV. Solicitation of Comments annual fee per handheld device used on imposed on all member firms equally the floor, and a $250 annual badge based on the number of MPIDs Interested persons are invited to maintenance fee per badge. Under the approved for use on EDGX. EDGX also submit written data, views, and proposed MPID Fee schedule, EDGA believes that the proposed fee will arguments concerning the foregoing, member firms would not be charged for encourage efficiency in member firm’s including whether the proposed rule maintaining five or less MPIDs, but use of MPIDs. change is consistent with the Act. would pay the proposed $250 monthly Further, the market for transaction Comments may be submitted by any of MPID fee only if the member maintains execution and routing services is highly the following methods: more than five MPIDS. In addition, competitive. Broker-dealers currently Electronic Comments members would be charged a proposed have numerous alternative venues for • Use the Commission’s Internet $2,000 annual membership fee and their order flow, including multiple competing self-regulatory organization’s comment form (http://www.sec.gov/ trading rights fee of $300 per month, rules/sro.shtml); or totaling $5,600 annually.6 Thus, EDGA markets, as well as broker-dealers and • aggregators such as electronic Send an e-mail to rule- believes that even with the proposed [email protected]. Please include File MPID fee, the cost of EDGA membership communications networks. A member firm is able to select any venue of which Number SR–EDGX–2011–26 on the is generally lower than the cost of subject line. membership in other SROs. it is a member or participant to send its order flow. As such, if member firms Paper Comments Basis believe that the proposed (i) Annual • Send paper comments in triplicate membership fee, (ii) trading rights fee, EDGX believes that the proposed rule to Elizabeth M. Murphy, Secretary, or (iii) fee for MPIDs in excess of five, changes are consistent with the Securities and Exchange Commission, 7 is excessive they may easily choose to provisions of Section 6 of the Act, in 100 F Street, NE., Washington, DC 8 move their order flow elsewhere. EDGX general, and Section 6(b)(4) of the Act, 20549–1090. believes that its proposed fees are in particular, because it provides for the All submissions should refer to File equitable allocation of reasonable dues, comparable to, and lower than, analogous NASDAQ and NYSE fees. Number SR–EDGX–2011–26. This file fees and other charges among members number should be included on the and issuers and other persons using any B. Self-Regulatory Organization’s subject line if e-mail is used. To help the facility or system that EDGX operates or Statement on Burden on Competition Commission process and review your controls, and it does not unfairly The proposed rule change does not comments more efficiently, please use discriminate between customers, impose any burden on competition that only one method. The Commission will issuers, brokers or dealers. is not necessary or appropriate in post all comments on the Commission’s First, the Exchange believes that furtherance of the purposes of the Act. Internet Web site (http://www.sec.gov/ assessing an Annual Membership Fee rules/sro.shtml). Copies of the and a Trading Rights Fee provides an C. Self-Regulatory Organization’s submission, all subsequent equitable allocation of reasonable dues, Statement on Comments on the amendments, all written statements fees and other charges among its Proposed Rule Change Received From with respect to the proposed rule members and other persons using its Members, Participants or Others change that are filed with the facilities. The Exchange makes all The Exchange has not solicited, and Commission, and all written services and products subject to these does not intend to solicit, comments on communications relating to the fees available on a non-discriminatory this proposed rule change. The proposed rule change between the basis to similarly situated recipients. Exchange has not received any Commission and any person, other than EDGX believes the Annual Membership unsolicited written comments from those that may be withheld from the Fee and monthly Trading Rights Fee are members or other interested parties. public in accordance with the a reasonable and equitable method of III. Date of Effectiveness of the provisions of 5 U.S.C. 552, will be ensuring that its fees fund a greater available for Web site viewing and portion of the cost of regulating the Proposed Rule Change and Timing for Commission Action printing in the Commission’s Public EDGX market, and that even after Reference Room, 100 F Street, NE., assessing these fees, the overall cost of The foregoing rule change has become Washington, DC 20549, on official EDGX membership is reasonable as effective pursuant to Section 19(b)(3) of business days between the hours of 10 10 11 compared with the costs of membership the Act and Rule 19b–4(f)(2) a.m. and 3 p.m. Copies of the filing also in other SROs. will be available for inspection and 9 Second, with respect to MPID fees, See, e.g., NASDAQ OMX Group, Inc., Equity copying at the principal office of the member firms will continue to have Rule 7001, at http://nasdaq.cchwallstreet.com/ NASDAQTools/PlatformViewer.asp?selectednode= Exchange. All comments received will chp%5F1%5F1%5F4%5F4&manual=%2 be posted without change; the 6 See supra note 5 (explaining the fee structure of Fnasdaq%2Fmain%2Fnasdaq%2Dequityrules%2F Commission does not edit personal the NASDAQ OMX Group, Inc., the New York (assessing a Supplemental MPID Fee of $1,000 per Stock Exchange, and the Chicago Stock Exchange). month, per MPID, for any MPID in excess of one). identifying information from 7 15 U.S.C. 78f. 10 15 U.S.C. 78s(b)(3)(A). submissions. You should submit only 8 15 U.S.C. 78f(b)(4). 11 17 CFR 19b–4(f)(2). information that you wish to make

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available publicly. All submissions The tentative agenda for this meeting 0001. Fax: 410–597–0825. E-mail to: should refer to File Number SR–EDGX– includes: Presentations by staff from the [email protected]. For additional 2011–26 and should be submitted on or Department of Labor’s Employment and information, please visit the panel Web before September 20, 2011. Training Administration, National site at http://www.ssa.gov/oidap. Center for O*NET Development and the For the Commission, by the Division of Leola S. Brooks, Trading and Markets, pursuant to delegated U. S. Census Bureau; a presentation on authority.12 the status of ongoing SSA FY 2011 OIS Designated Federal Officer, Occupational Elizabeth M. Murphy, Development project and research Information Development Advisory Panel. Secretary. activities currently underway; [FR Doc. 2011–22147 Filed 8–29–11; 8:45 am] [FR Doc. 2011–22134 Filed 8–29–11; 8:45 am] Occupational Information Development BILLING CODE 4191–02–P Advisory Panel Chair and subcommittee BILLING CODE 8011–01–P reports; public comment; panel discussion and deliberation; and, an administrative business meeting. We DEPARTMENT OF STATE SOCIAL SECURITY ADMINISTRATION will post the final agenda on the [Docket No. SSA–2011–0074] Internet prior to the meeting at http:// [Public Notice: 7572] www.socialsecurity.gov. Occupational Information Development The panel will hear public comment Culturally Significant Objects Imported Advisory Panel Meeting during the quarterly meeting on for Exhibition Determinations: ‘‘New AGENCY: Social Security Administration Wednesday, September 21, 2011 from Photography 2011: Zhang Dali, Moyra (SSA). 3:15 p.m. to 3:45 p.m. (EDT) and Davey, George Georgiou, Deana ACTION: Notice of Upcoming Quarterly Thursday, September 22, 2011 from 2:15 Lawson, Doug Rickard, Viviane Panel Meeting. p.m. to 2:45 pm. (EDT). Members of the Sassen’’ public must reserve a time slot— DATES: September 21, 2011, 9 a.m.–5 assigned on a first come, first served SUMMARY: Notice is hereby given of the p.m. (EDT); September 22, 2011, 8:30 basis—in order to comment. In the event following determinations: Pursuant to a.m. to 4 p.m. (EDT). that scheduled public comment does the authority vested in me by the Act of Location: Radisson Plaza Lord not take the entire time allotted, the October 19, 1965 (79 Stat. 985; 22 U.S.C. Baltimore. panel may use any remaining time to 2459), Executive Order 12047 of March deliberate or conduct other business. ADDRESSES: 20 West Baltimore Street, 27, 1978, the Foreign Affairs Reform and Those interested in providing Baltimore, MD 21201. Restructuring Act of 1998 (112 Stat. By Teleconference: 1–866–882–0470. testimony in person at the meeting or 2681, et seq.; 22 U.S.C. 6501 note, et via teleconference should contact the SUPPLEMENTARY INFORMATION: seq.), Delegation of Authority No. 234 of Type of meeting: The meeting is open panel staff by e-mail to [email protected]. October 1, 1999, and Delegation of to the public. Individuals providing testimony are Authority No. 236–3 of August 28, 2000 Purpose: This discretionary panel, limited to a maximum five minutes; (and, as appropriate, Delegation of established under the Federal Advisory organizational representatives, a Authority No. 257 of April 15, 2003), I Committee Act of 1972, as amended, maximum of ten minutes. You may hereby determine that the objects to be shall report to the Commissioner of submit written testimony, no longer included in the exhibition ‘‘New Social Security. The panel will advise than five (5) pages, at any time in person Photography 2011: Zhang Dali, Moyra the agency on the creation of an or by mail, fax or e-mail to Davey, George Georgiou, Deana Lawson, occupational information system [email protected] for panel consideration. Doug Rickard, Viviane Sassen,’’ Seating is limited. Those needing tailored specifically for the our imported from abroad for temporary special accommodation in order to disability determination process and exhibition within the United States, are attend or participate in the meeting (e.g., adjudicative needs. Advice and of cultural significance. The objects are sign language interpretation, assistive recommendations will relate to our imported pursuant to a loan agreement listening devices, or materials in disability programs in the following with the foreign owner or custodian. I alternative formats, such as large print areas: Medical and vocational analysis also determine that the exhibition or or CD) should notify Leola Brooks via e- of disability claims; occupational display of the exhibit objects at The mail to [email protected] no later analysis, including definitions, ratings Museum of Modern Art, New York, New than September 15, 2011. We will and capture of physical and mental/ York, from on or about September 27, attempt to accommodate requests made cognitive demands of work and other 2011, until on or about January 16, occupational information critical to our but cannot guarantee availability of services. All meeting locations are 2012, and at possible additional disability programs; data collection; use exhibitions or venues yet to be of occupational information in our barrier free. For telephone access to the meeting determined, is in the national interest. disability programs; and any other I have ordered that Public Notice of area(s) that would enable us to develop on both days, please dial toll-free to (866) 882–0470. these Determinations be published in an occupational information system the Federal Register. suited to its disability programs and FOR FURTHER INFORMATION CONTACT: improve the medical-vocational Records of all public panel proceedings FOR FURTHER INFORMATION CONTACT: For adjudication policies and processes. are maintained and available for further information, including a list of Agenda: The panel will meet on inspection. Anyone requiring further the exhibit objects, contact Kevin M. Wednesday, September 21, 2011, from 9 information should contact the panel Gleeson, Attorney-Adviser, Office of the a.m. until 5 p.m. (EDT) and on staff at: Occupational Information Legal Adviser, U.S. Department of State Thursday, September 22, 2011, from Development Advisory Panel, Social (telephone: 202–632–6473). The mailing 8:30 a.m. until 4 p.m. (EDT). Security Administration, 6401 Security address is U.S. Department of State, SA– Boulevard, 3–E–26, Robert M. Ball 5, L/PD, Fifth Floor (Suite 5H03), 12 17 CFR 200.30–3(a)(12). Federal Building, Baltimore, MD 21235– Washington, DC 20522–0505.

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Dated: August 24, 2011. and reference should be made to that Plan (IRP) and IRP Final Environmental J. Adam Ereli, notice for more details, including Impact Statement (FEIS) for meeting Principal Deputy Assistant Secretary, Bureau information about the need for base load future demand on the TVA power of Educational and Cultural Affairs, capacity, alternatives considered by system over the next 20 years. The need Department of State. TVA, the history of the Bellefonte for power analysis in the Bellefonte [FR Doc. 2011–22142 Filed 8–29–11; 8:45 am] project, environmental consequences, FSEIS is compatible with, and is BILLING CODE 4710–05–P and other background information. updated by, the analysis in the 2011 IRP With almost 37,000 MW of net FEIS. dependable summer generating TVA’s 2011 IRP sets forth a planning TENNESSEE VALLEY AUTHORITY capacity, TVA operates the nation’s direction to guide TVA in making future largest public power system, producing energy resource decisions. This Final Environmental Impact Statement, 4 percent of all electricity in the nation. direction includes, among other actions, Single Nuclear Unit at the Bellefonte TVA provides electricity to most of significant increased investment in Plant Site, Jackson County, AL Tennessee and parts of Virginia, North energy efficiency and demand response Carolina, Georgia, Alabama, Mississippi, programs, the idling of existing coal AGENCY: Tennessee Valley Authority and Kentucky. It serves about 9 million units in an amount ranging from 2,400 (TVA). people in this seven-state region to 4,700 MWs, and the addition of 1,150 ACTION: Issuance of Record of Decision. through 155 independent power to 3,650 MWs of nuclear capacity. SUMMARY: This notice is provided in distributors and 56 directly served large Completion and operation of the 1,260– accordance with the Council on industries and Federal facilities. The MW Bellefonte Unit 1 was one of the Environmental Quality’s regulations (40 TVA Act requires the TVA power resource options analyzed in the 2011 CFR 1500 to 1508) and TVA’s system to be self-supporting and to be IRP and is consistent with the planning procedures implementing the National operated on a non-profit basis and direction approved by the TVA Board. Environmental Policy Act (NEPA). On directs TVA to sell power at rates as low Analyses show that even with August 18, 2011, the TVA Board of as are feasible. Most of TVA’s power is substantial energy replacement through Directors approved the recommendation supplied by three nuclear plants, 11 conservation measures, TVA must still to complete and operate Bellefonte coal-fired plants, 12 gas-fired plants, 29 add new base load generation to balance Nuclear Plant Unit 1. A notice of hydroelectric dams, and a pumped- resources with the projected load availability (NOA) of the Final storage facility and through power requirements. Neither coal-fired nor Supplemental Environmental Impact purchase agreements from a variety of natural gas-fired power was found to be Statement for a Single Nuclear Unit at energy sources including, but not environmentally preferable to nuclear the Bellefonte Plant Site (hereafter limited to, wind, solar, natural and power, and renewable energy sources referred to as Bellefonte FSEIS) was methane gas, hydroelectric, and lignite were not found sufficient to meet power published in the Federal Register on coal. TVA also purchases renewable needs in the required time frame. May 21, 2010. On August 20, 2010, the energy from small producers in its Completing Bellefonte Unit 1 also would provide TVA more flexibility to TVA Board approved the expenditure of Generation Partners Program. TVA idle existing coal plants. These $248 million for additional engineering, transmits electricity from these facilities conclusions are confirmed in TVA’s design, and licensing activities, as well over almost 16,000 miles of new IRP. as the procurement of long lead-time transmission lines. The Bellefonte FSEIS supplements The decision to complete Bellefonte components for the partially complete and updates the original TVA Final Unit 1 precludes further consideration Bellefonte Unit 1. The ROD Environmental Statement for Bellefonte of any of the options for converting the documenting this decision was Nuclear Plant Units 1 and 2 (May 1974); existing facilities at the Bellefonte site to published on September 9, 2010 (75 FR the TVA Final Environmental Impact a coal- or natural gas-fired plant that 54961). Bellefonte Unit 1 is a 1,260- Statement for the Bellefonte Conversion were analyzed in the 1997 FEIS for the megawatt (MW) Babcock and Wilcox- Project (October 1997); the U.S. Bellefonte Conversion Project. designed pressurized light water reactor. Department of Energy’s Final Public Involvement This interim decision was made in order Environmental Impact Statement for the to maintain Unit 1 as a viable alternative Production of Tritium in a Commercial TVA published a notice of intent to to meet the projected need for base load Light Water Reactor (March 1999), prepare a supplemental environmental generation on the TVA system in 2018– which TVA adopted; and the TVA impact statement (SEIS) in the Federal 2020. Bellefonte Nuclear Plant Units 3 and 4, Register on August 10, 2009. The NOA FOR FURTHER INFORMATION CONTACT: Combined License Application Part 3, for the draft SEIS (DSEIS) was published Ruth Horton, Senior NEPA Specialist, Environmental Report, Revision 1 in the Federal Register by the U.S. Environmental Permits and Compliance, (October 2008). Where pertinent, the Environmental Protection Agency Tennessee Valley Authority, 400 West Bellefonte FSEIS incorporates by (USEPA) on November 13, 2009. TVA Summit Hill Drive, WT 11D, Knoxville, reference, utilizes, tiers from, or updates accepted comments on the DSEIS until Tennessee 37902–1499; telephone: 865– information from this substantial December 28, 2009. Approximately 50 632–3719; e-mail: [email protected] or environmental record. people attended a public meeting on Zackary Rad, Bellefonte Unit 1 The Bellefonte FSEIS also tiered from December 8, 2009, in Scottsboro, Licensing Manager, Nuclear Generation and incorporated by reference two TVA Alabama. Comments both for and Development and Construction, programmatic reviews, Energy Vision against nuclear power generation were Tennessee Valley Authority, P.O. Box 2020 Integrated Resource Plan Final received from 35 individuals and four 2000, OSB 1A–BLN, Hollywood, Programmatic Environmental Impact Federal and state agencies. After Alabama 35752; telephone: 256–574– Statement (December 1995) and considering and responding to all 8265; e-mail: [email protected]. Reservoir Operations Study Final substantive comments, TVA completed SUPPLEMENTARY INFORMATION: The Programmatic Environmental Impact and issued the Bellefonte FSEIS, which September 2010 Bellefonte ROD Statement (May 2004). In March 2011, identifies Alternative B, Completion and provides information about this action, TVA issued a new Integrated Resource Operation of Bellefonte Unit 1, as TVA’s

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Preferred Alternative. The NOA of the development of a temporary RV park consequences of severe accidents Bellefonte FSEIS was published in the and campground located on TVA- associated with the Bellefonte Unit 1 Federal Register on May 21, 2010. owned property or a collaborative design. The review indicated that the TVA also invited comments on the development off site to alleviate likelihood or consequences of an event Bellefonte FSEIS during a 30-day period community pressures from similar to the one in Japan were already from May 21 through June 21, 2010. construction-related housing demand. adequately evaluated in the Comments were received from 11 The 2010 Housing Survey report is probabilistic safety assessment and risk persons or entities, including the available upon request. calculations presented in the FSEIS. USEPA. No new issues were raised, and Bellefonte Unit 1 is designed to Environmental Consequences similar comments were addressed in the withstand all types of extreme weather, FSEIS. The Bellefonte FSEIS updated the flood, and seismic events. Design-basis Two USEPA comments were analyses presented in earlier improvements to withstand terrorist addressed in TVA’s September 9, 2010, environmental reviews of the natural, attacks addressed in recent years will ROD. TVA reported that further human, and radiological environment increase the plant’s ability to mitigate examination of U.S. Census data related that could be affected by completion severe accidents. Based upon TVA’s to neighboring block groups for minority and operation of a nuclear unit at the post-Fukushima review, TVA concludes and impoverished populations Bellefonte site, including discussion of that the severe accident analysis in the confirmed the environmental justice nuclear plant safety, plant security, and FSEIS adequately bounds the potential finding in the Bellefonte FSEIS that decommissioning. Environmental for environmental and public health these groups are not expected to be consequences of completing and consequences. disproportionately affected by operating Bellefonte Unit 1 and In addition to the site-specific review completion and operation of a nuclear associated transmission system of the Bellefonte design, TVA has plant at the Bellefonte site. In response improvements, as well as alternatives to developed a fleet-wide action plan to USEPA comments about the them, are summarized in the September designed to strengthen its nuclear adequacy of housing supply for the 2010 Bellefonte ROD. facilities to withstand combinations of construction workforce, TVA committed During the course of the SEIS large-scale disasters, both man-made to undertake an in-depth housing study preparation, TVA consulted with the and natural. This plan tracks closely prior to making a final decision about U.S. Fish and Wildlife Service (USFWS) with the July 12, 2011, NRC report plant construction. The purpose of the and the State Historic Preservation Recommendations for Enhancing study was to better identify the extent Officers (SHPOs) in Alabama, Reactor Safety in the 21st Century: The and location of housing impacts and to Tennessee, and Georgia, as well as Near-Term Task Force Review of develop a strategy for addressing those interested tribes. On January 21, 2010, Insights from the Fukushima Dai-ichi concerns. USFWS concluded that only the pink Accident. TVA’s Fukushima action plan An in-depth housing survey was mucket (Lampsilis abrupta) mussel includes short-term, intermediate, and completed in October 2010. The survey could be affected by the proposed long-term actions designed to address identified 16 communities and four nuclear plant construction and lessons learned from the accident in counties near the Bellefonte site that operation. In a biological opinion issued Japan. A primary focus is looking at were most likely to be considered for April 15, 2010, USFWS issued an additional backups to existing relocation by the in-migrating incidental take permit for pink mucket emergency power systems, diesel construction and operational workforce, under either Action Alternative. TVA generators, and battery banks to increase based on commute distances/times, committed to providing $30,000 to be the ability to weather an extended loss school district options, transportation used for research and recovery of the of outside power at any of TVA’s routes, and available permanent, pink mucket should either of the Action nuclear plants. This means the purchase temporary, and planned housing. The Alternatives be selected. and staging of more diesel and gasoline- survey assumed that half of the In a September 9, 2009, letter, the fueled electric generators. Plans include workforce would in-migrate, and half Alabama SHPO concurred with TVA’s purchasing additional pumps and hoses would be existing residents within the finding of no effects on historic that can draw water from the Tennessee region. The study concluded that, properties associated with completion River, providing another emergency overall, demands on housing by the in- and operation of a nuclear unit on the alternative to maintain water levels in migrating construction and operational Bellefonte site. TVA completed a reactors and used fuel pools. The workforce are anticipated to be met for memorandum of agreement (MOA) with benefits and feasibility of more rapid the first two years of the construction the Georgia SHPO on April 28, 2010, transfer of spent fuel to dry cask storage schedule and met entirely for the and with the Alabama SHPO on June 1, are being examined. Emergency plans operational workforce. Based on 2010, for the treatment of potential and control room simulators have been interviews with city and county impacts to historic properties from revamped to include scenarios for officials, local realtors, and area transmission system improvements on events that occur simultaneously, like developers, the study indicated that the existing rights-of-way. Instead of the earthquake and tsunami in Japan. start of construction and the increase of entering into an MOA, in a May 20, Implementing TVA’s Fukushima action housing demand are expected to spur 2010, letter the Tennessee SHPO plan will further improve the safety of both temporary and permanent housing requested TVA follow procedures to TVA’s operating plants. development. TVA will monitor the conduct a phased identification and TVA will continue to meet all availability of construction workforce evaluation of historic properties regulatory requirements and nuclear housing. If housing development does pursuant to 36 CFR 900.4(b)(2). power industry recommendations that not occur as expected, TVA will Following the seismic and tsunami- result from the Fukushima event at its consider mitigation measures such as induced events at the Fukushima six operating nuclear units, Watts Bar transportation assistance for commuting (Japan) Daiichi Nuclear Plant on March Unit 2, which is currently under employees living farther than 30 miles 11, 2011, TVA performed a review to construction, and at Bellefonte Unit 1. away, remote parking areas with determine whether that event presented As new information becomes available shuttles to the Bellefonte site, new information about the likelihood or and new insights are developed from

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the Fukushima event, TVA will temporary on-site RV park and rehabilitation project, the North Spring consider what further steps might be campground or a collaborative Street Viaduct Widening and taken to ensure the safe operation of its development off site. Rehabilitation in the County of Los nuclear fleet. • In accordance with the permit Angeles, State of California. Those issued by USFWS on April 15, 2010, actions grant licenses, permits, and Decision provide $30,000 for research and approvals for the project. On August 20, 2010, the TVA Board recovery of the pink mucket. DATES: By this notice, the FHWA, on approved a budget allocation of $248 The following mitigation measures behalf of Caltrans, is advising the public million in support of continued would be implemented to respond to of final agency actions subject to 23 engineering, design, and regulatory- the potential impacts of the proposed U.S.C. 139(l)(1). A claim seeking basis development, as well as the transmission system improvements. judicial review of the Federal agency procurement of long-lead components Prior to implementing any ground- actions on the highway project will be such as steam generators for Unit 1. This disturbing work, TVA would: barred unless the claim is filed on or • helped to preserve Bellefonte Unit 1 as Survey areas to be disturbed where before February 27, 2012. If the Federal a feasible energy resource option. After endangered or threatened plant species law that authorizes judicial review of a considering the analyses done for TVA’s have been previously reported to verify claim provides a time period of less 2011 IRP, the IRP FEIS, the results of if the rare species are still present in the than 180 days for filing such claim, then engineering and financial studies transmission line right-of-way. The that shorter time period still applies. conducted since August 2010, and locations of any listed species would be FOR FURTHER INFORMATION CONTACT: analyses in response to the Fukushima identified on construction plans and Ollie Jackson, Senior Environmental Daiichi accident, the TVA Board avoided during construction activities. • Planner, Caltrans, District 7, Division of approved the completion and operation Survey wetlands in the areas that Environmental Planning, 100 South of Bellefonte Unit 1 on August 18, 2011. may be disturbed as a result of Main Street, Suite 100, Los Angeles, CA The Board directed TVA staff to not upgrading/reenergizing activities. 90012–3712, (213) 897–8610, resume construction activities at Mitigation measures that avoid, [email protected]. Bellefonte Unit 1 until fuel is initially minimize, or compensate for impacts to SUPPLEMENTARY INFORMATION: loaded at TVA Watts Bar Unit 2. Subject wetlands would be implemented to Effective to this condition, plant construction can ensure no significant impacts or loss of July 1, 2007, the Federal Highway commence 120 days after TVA submits wetland function occurs. Administration (FHWA) assigned, and a written notice to the Nuclear • In consultation with the SHPO (for the California Department of Transportation (Caltrans) assumed, Regulatory Commission (NRC) the state in which the property is environmental responsibilities for this containing certain information regarding located) and other consulting parties, project pursuant to 23 U.S.C. 327. plant status, schedules, and other develop and evaluate alternatives or Notice is hereby given that Caltrans descriptions as set forth in the NRC modifications that would avoid, have taken final agency actions subject Policy Statement on Deferred Plants (52 minimize, or mitigate any adverse to 23 U.S.C. 139(l)(1) by issuing FR 38077 [October 14, 1987]). effects to historic properties, if any. licenses, permits, and approvals for the With the implementation of the above Environmentally Preferred Alternative following highway project in the State measures, TVA has determined that of California: The City of Los Angeles in As discussed in the September 2010 adverse environmental impacts of cooperation with Caltrans proposes Bellefonte ROD, TVA has concluded completing and operating Bellefonte improvements and rehabilitation to the that the environmental impacts of the Unit 1 would be substantially reduced. two Action Alternatives would be very existing North Spring Viaduct and its Dated: August 24, 2011. similar and that neither Action adjoining roadways. The proposed Ashok S. Bhatnagar, Alternative would be environmentally project area is situated northeast of preferable to the other. However, either Senior Vice President, Nuclear Generation downtown Los Angeles in an area that Development and Construction. Action Alternative likely would be includes residential, commercial, environmentally preferable to the No [FR Doc. 2011–22079 Filed 8–29–11; 8:45 am] industrial, and open space land uses. Action Alternative, assuming TVA BILLING CODE 8120–08–P The proposed project area straddles would build new base load generation portions of the Central City North and elsewhere. Northeast Los Angeles Community DEPARTMENT OF TRANSPORTATION Planning areas. Regional transportation Mitigation Measures facilities in the area include interstate The following measures will be used Federal Highway Administration 110 (I–110), Interstate 5 (I–5), and State to minimize environmental impacts Route 101 (SR–101). Completing the Notice of Final Federal Agency Actions from completion and operation of project would correct existing on Proposed Highway in California Bellefonte Unit 1: geometrical and design deficiencies, and • Avoid disturbance of archaeological AGENCY: Federal Highway to address seismic vulnerability issues site 1JA111. Administration (FHWA), DOT. in order to increase the viaduct’s SR to • Take appropriate steps to monitor ACTION: Notice of limitation on claims a minimum of 80. An additional and mitigate potential housing, traffic, for judicial review of actions by the purpose of the project is to improve and school impacts in Jackson County, California Department of Transportation bicycle and pedestrian circulation and Alabama, during plant construction and (Caltrans), pursuant to 23 U.S.C. 327. safety across the river and railroad mitigate such impacts if needed. tracks. The actions by the Federal Mitigation could include measures such SUMMARY: The FHWA, on behalf of agencies, and the laws under which as transportation assistance for Caltrans, is issuing this notice to such actions were taken, are described commuting employees living outside a announce actions taken by Caltrans that in the Finding of No Significant Impact 30-mile commuting distance, remote are final within the meaning of 23 (FONSI) for the project, approved on parking areas with shuttles to the U.S.C. 139(l)(1). The actions relate to a June 30, 2011. The FONSI and other Bellefonte site, development of a proposed bridge widening and project records are available by

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contacting Caltrans at the addresses this document provides the public BNSF would maintain records of provided above. The Caltrans FONSI notice that by a document dated July 27, defective conditions discovered during can be viewed and downloaded from 2011, BNSF Railway (BNSF) has inspections, as currently required, the project Web site at http:// petitioned the Federal Railroad including any defective equipment set www.dot.ca.gov/dist07/resources/ Administration (FRA) for a waiver of out en route. envdocs/. compliance from certain requirements Interested parties are invited to This notice applies to all Federal of Federal railroad safety regulations participate in these proceedings by agency decisions as of the issuance date contained at 49 CFR part 232. FRA has of this notice and all laws under which assigned the petition Docket Number submitting written views, data, or such actions were taken, including but 2006–24812. comments. FRA does not anticipate not limited to: BNSF seeks a waiver of compliance scheduling a public hearing in • General: National Environmental from certain provisions of 49 CFR part connection with these proceedings since Policy Act (NEPA) [42 U.S.C. 4321– 232, Brake System Safety Standards for the facts do not appear to warrant a 4351]; Federal Aid Highway Act; [23 Freight and Other Non-Passenger Trains hearing. If any interested party desires U.S.C. 109]. and Equipment. Specifically, BNSF is an opportunity for oral comment, they • Air: Clean Air Act 42 U.S.C. 7401– requesting to expand the scope of the should notify FRA, in writing, before 7671(q). existing waiver that granted relief from the end of the comment period and • Migratory Bird Treaty Act [16 the maximum mileage and inspection specify the basis for their request. requirements specified by 49 CFR U.S.C. 703–712] All communications concerning these • Historic and Cultural Resources: 232.213, Extended haul trains. BNSF would like to perform the 1,500-mile proceedings should identify the Section 106 of the National Historic appropriate docket number and may be Preservation Act of 1966, as amended extended haul inspection for two designated trains at points that slightly submitted by any of the following [16 U.S.C. 470(aa)–11]. methods: • Social and Economic: Civil Rights exceed the 1,500-mile limit. The two • Act of 1964 [42 U.S.C. 2000(d)–2000(d) destination points are Kansas City Web site: http:// (1)]; The Uniform Relocation Assistance Power and Light (KCP&L); Iatan www.regulations.gov. Follow the online Act and Real Property Acquisition Generating Plant in Sadler, MO; and instructions for submitting comments. Dynegy, Hennepin Plant in Havanna, IL. Policies Act of 1970, as amended. • Fax: 202–493–2251. • The origination points are various coal Hazardous Materials: • Mail: Docket Operations Facility, Comprehensive Environmental mines in the Powder River Basin that U.S. Department of Transportation, 1200 response, Compensation, and Liability would exceed the 1,500-mile Class 1 New Jersey Avenue, SE., W12–140, Act (CERCLA), 42 U.S.C. 9601–9675; inspection limit between 30.8 and 103.2 Superfund Amendments and miles. Also, BNSF would like to realign Washington, DC 20590. Reauthorization Act of 1986 (SARA); the inspection points. Some inspections • Hand Delivery: 1200 New Jersey • Executive Orders: E.O. 11990 normally performed at Lincoln, NE, may Avenue, SE., Room W12–140, Protection of Wetlands; E.O. 11988 be reduced on the Dynegy trains by Washington, DC 20590, between 9 a.m. Floodplain Management; E.O. 12898 shifting inspections to Guernsey, WY. and 5 p.m., Monday through Friday, Also, KCP&L train inspections may be Federal Actions to Address except Federal Holidays. Environmental Justice in Minority shifted to Guernsey or Donkey Creek, WY, from Lincoln, NE. Communications received by October Populations and Low Income Given the increased demand for coal 14, 2011 will be considered by FRA Populations; E.O. 11593 Protection and by the utility industry, BNSF believes before final action is taken. Comments Enhancement of Cultural Resources; that granting this relief is critical to received after that date will be E.O. 13112 Invasive Species. relieving congestion at Lincoln, NE, considered as far as practicable. (Catalog of Federal Domestic Assistance while maintaining high-quality Anyone is able to search the Program Number 20.205, Highway Planning inspections; and the railroad believes electronic form of any written and Construction. The regulations this will not compromise railroad safety. communications and comments implementing Executive Order 12372 The following trains are covered by the regarding intergovernmental consultation on requested relief: E–SAIATM, E– received into any of our dockets by the Federal programs and activities apply to this name of the individual submitting the program.) SAIBAM, E–SAIBTM, E–SAICAM, E– SAICDM, E–SAICRM, E–SAIWTM, C– comment (or signing the comment, if Authority: 23 U.S.C. 139(l)(1). ATMPHH, C–BTMPHH, C–ETMPHH, submitted on behalf of an association, Issued on: August 24, 2011. and C–NAMPHH. business, labor union, etc.). You may Vincent P. Mammano. In summary, BNSF respectfully review DOT’s complete Privacy Act Division Administrator, Federal Highway requests that these trains be granted Statement in the Federal Register Administration, Sacramento, California. inclusion in FRA Waiver 2006–24812, published on April 11, 2000 (Volume [FR Doc. 2011–22077 Filed 8–29–11; 8:45 am] which was established to resolve 65, Number 70; Pages 19477–78) or BILLING CODE 4910–RY–P congestion issues in 2006. In the 4 years online at http://www.dot.gov/ that these trains have been operating privacy.html. under the current waiver, there has been Issued in Washington, DC, on August 24, no adverse impact to safety. Since the DEPARTMENT OF TRANSPORTATION 2011. trains covered by this request operate Federal Railroad Administration the very same type of equipment, there Robert C. Lauby, is no anticipated deviation from the Deputy Associate Administrator for [Docket Number FRA–2006–24812] current high level of safety. Regulatory and Legislative Operations. Petition for Waiver of Compliance BNSF states that it will provide both [FR Doc. 2011–22059 Filed 8–29–11; 8:45 am] mechanical and operating forces with BILLING CODE 4910–06–P In accordance with Part 211 of Title the list of trains allowed to operate past 49 Code of Federal Regulations (CFR), the 1,500-mile threshold. Additionally,

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DEPARTMENT OF TRANSPORTATION Operations Facility, 1200 New Jersey DEPARTMENT OF TRANSPORTATION Avenue, SE., W12–140, Washington, DC Federal Railroad Administration 20590. The Docket Operations Facility Federal Railroad Administration [Docket Number FRA–2010–0010] is open from 9 a.m. to 5 p.m., Monday [Docket Number FRA–2011–0064] through Friday, except Federal holidays. Petition for Waiver of Compliance Interested parties are invited to Petition for Waiver of Compliance In accordance with Part 211 of Title participate in these proceedings by In accordance with Part 211 of Title 49 Code of Federal Regulations (CFR), submitting written views, data, or 49 of the Code of Federal Regulations this document provides the public comments. FRA does not anticipate (CFR), this document provides the notice that by a document dated July 11, scheduling a public hearing in public notice that by a document dated 2011, CSX Transportation (CSX) has connection with these proceedings since July 12, 2011, the Association of petitioned the Federal Railroad the facts do not appear to warrant a American Railroads (AAR) has Administration (FRA) for hearing. If any interested party desires petitioned the Federal Railroad reconsideration of a denied waiver of an opportunity for oral comment, they Administration (FRA) for a waiver of compliance from certain provisions of should notify FRA, in writing, before compliance from certain provisions of the Federal railroad safety regulations the end of the comment period and the Federal railroad safety regulations contained at 49 CFR part 236. FRA has specify the basis for their request. contained at 49 CFR 229.135(b)(5) and assigned the petition Docket Number (b)(6). FRA assigned the petition Docket FRA–2010–0010 Reconsideration. All communications concerning these Number FRA–2011–0064. The application had been reviewed by proceedings should identify the Specifically, the AAR seeks a waiver the FRA Railroad Safety Board on appropriate docket number and may be exempting railroads from meeting the 49 September 9, 2010, with the decision submitted by any of the following CFR Part 229, Appendix D, being that more information was methods: requirements until December 31, 2015, required. CSX was provided, by the FRA • Web site: http:// due to Positive Train Control (PTC) Region 3 Regional Office, with a request www.regulations.gov. Follow the online requirements unforeseen at the time 49 for the following: instructions for submitting comments. CFR 229.135(b5) and (b6) were adopted. • The PTC mandate will require an CSX to address security of dual- • tone multiple frequency (DTMF) tones. Fax: 202–493–2251. entirely new event recorder module, • CSX to provide FRA with an • Mail: Docket Operations Facility, inclusive of the Appendix D understanding of how the bridge closing U.S. Department of Transportation, 1200 requirements. Title 49 CFR Section without visual is safely accomplished. New Jersey Avenue, SE., W12–140, 229.135(b) requires that certain • CSX to provide the proposed Washington, DC 20590. locomotives be equipped with an event recorder that includes a certified operating instructions of the bridge. • Hand Delivery: 1200 New Jersey Subsequent to CSX failing to respond crashworthy event recorder memory Avenue, SE., Room W12–140, to requests for the information, FRA module (ERMM). The Appendix D denied the application on February 4, Washington, DC 20590, between 9 a.m. section prescribes the requirements for 2011, and considered FRA–2010–0010 and 5 p.m., Monday through Friday, certifying ERMM as being crashworthy, closed. except Federal holidays. including the performance criteria and CSX has, in the enclosure to the July Communications received by October test sequence for establishing the 11, 2011, letter, provided the requested 14, 2011 will be considered by FRA crashworthiness of the ERMM, as well information; FRA, therefore, considers before final action is taken. Comments as the marking of the event recorder Docket Number FRA–2010–0010 received after that date will be containing the crashworthy ERMM. The opened for reconsideration. considered as far as practicable. railroads are spending as much as CSX seeks reconsideration of the $5,000.00 on modules that will have to Anyone is able to search the proposed modification of the bridge be replaced prematurely when these electronic form of any written tender controlled signals to automatic locomotives are equipped with PTC. signals at Big Manatee Drawbridge in communications and comments Therefore, a waiver of the Appendix D Bradenton, Florida, at Milepost AZA received into any of our dockets by the requirement will enable the industry to 915.8, in the Jacksonville Division, name of the individual submitting the avoid the expense of this compliance for Palmetto Subdivision. The modification comment (or signing the comment, if modules that will only be used for a consist of the conversion of bridge submitted on behalf of an association, short period of time. tender controlled signals to automatic business, labor union, etc.). You may A copy of the petition, as well as any signals. review DOT’s complete Privacy Act written communications concerning the The reason given for the proposed Statement in the Federal Register petition, is available for review online at change is that the drawbridge tender published on April 11, 2000 (Volume http://www.regulations.gov and in position is being eliminated. Train 65, Number 70; Pages 19477–78) or at person at the U.S. Department of crews will request that the bridge open http://www.dot.gov/privacy.html. Transportation’s (DOT) Docket and close via DTMF radio. Signals will Issued in Washington, DC on August 23, Operations Facility, 1200 New Jersey clear automatically for train movements 2011. Ave., SE., W12–140, Washington, DC once the bridge has been closed and 20590. The Docket Operations Facility locked and an approach circuit is Robert C. Lauby, is open from 9 a.m. to 5 p.m., Monday occupied. Deputy Associate Administrator for through Friday, except Federal holidays. A copy of the petition, as well as any Regulatory and Legislative Operations. Interested parties are invited to written communications concerning the [FR Doc. 2011–22053 Filed 8–29–11; 8:45 am] participate in these proceedings by petition, is available for review online at BILLING CODE 4910–06–P submitting written views, data, or http://www.regulations.gov and in comments. FRA does not anticipate person at the U.S. Department of scheduling a public hearing in Transportation’s (DOT) Docket connection with these proceedings since

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the facts do not appear to warrant a the importance of adhering to Federal pursuing alternatives to the normal hearing. If any interested party desires requirements when offering and requirements of the HMR will require an opportunity for oral comment, they transporting hazardous materials in additional safety measures. For should notify FRA, in writing, before DOT Special Permit (SP) packages. example, consider the case of a DOT the end of the comment period and PHMSA is concerned that many persons 3HT cylinder that has been specify the basis for their request. who offer or transport SP packages fail manufactured and re-qualified for All communications concerning these to recognize the additional requirements service under an SP to be used in a fire proceedings should identify the applicable to filling, offering, and suppression system onboard an aircraft. appropriate docket number and may be moving SP packages. By issuing this The SP may require the cylinder to be submitted by any of the following safety notice, PHMSA is attempting to tested more frequently and at a different methods: raise awareness within the hazardous test pressure than the HMR would • Web site: http:// materials community of the inherent otherwise require. If a cylinder re- www.regulations.gov. Follow the online characteristics of DOT SPs and qualifier fails to recognize the cylinder’s instructions for submitting comments. underscore the possible consequences of SP markings and apply the more • Fax: 202–493–2251. failing to recognize an SP package and stringent SP requirements, it might wait • Mail: Docket Operations Facility, react accordingly. too long to retest the cylinder or apply U.S. Department of Transportation, 1200 FOR FURTHER INFORMATION CONTACT: For the wrong test pressure. These errors New Jersey Avenue, SE., W12–140, questions regarding specifics on the put lives and property at risk when Washington, DC 20590. cryogenic gas incident, please contact: defective cylinders are improperly • Hand Delivery: 1200 New Jersey Mr. John Heneghan, Director, Southern tested and allowed to function as part of Avenue, SE., Room W12–140, Region Office, Office of Hazardous an emergency response system, such as Washington, DC 20590, between 9 a.m. Materials Safety, (404) 832–1135. For a fire suppression system. and 5 p.m., Monday through Friday, Hazardous materials training is an general questions regarding Special except Federal holidays. important tool for ensuring proper Permits, please contact: Mr. Ryan Communications received by October hazard communication and compliance Paquet, Director, Approvals and Permits 14, 2011 will be considered by FRA with SP and HMR requirements. Part of Division, Office of Hazardous Materials before final action is taken. Comments the training process involves learning to Safety, (202) 366–4512. received after that date will be identify SP packages. Pursuant to the considered as far as practicable. SUPPLEMENTARY INFORMATION: HMR, each SP package is required to be Anyone is able to search the I. Background marked ‘‘DOT–SP’’ with a number electronic form of any written identifying the SP associated with that communications and comments DOT SPs (previously known as DOT package, unless specifically excepted by received into any of our dockets by the Exemptions) allow the SP grantee to the SP. PHMSA expects trained name of the individual submitting the perform some function contrary to, or in employees to recognize SP packages and comment (or signing the comment, if addition to, the Hazardous Materials react accordingly by following the submitted on behalf of an association, Regulations (HMR; 49 CFR parts 171– requirements of the HMR and the business, labor union, etc.). You may 180). SPs may be used to allow an applicable SP. PHMSA recently review DOT’s complete Privacy Act exemption from provisions of the HMR. concluded an investigation where a Statement in the Federal Register SPs can also grant permission to third hazardous material shipper’s failure to published on April 11, 2000 (Volume parties, i.e., persons who are not SP recognize an SP package and comply 65, Number 70; Pages 19477–78), or grantees or otherwise party to an SP, to with the safety requirements of the online at http://www.dot.gov/ receive, use, retest, or reship an SP applicable SP and HMR cost the lives of privacy.html. package according to the requirements three transportation workers. of the HMR and the additional Issued in Washington, DC, on August 23, requirements or exceptions described in II. Current Regulatory Requirements 2011. the SP. SPs are commonly used to The HMR specifies that persons may Robert C. Lauby, authorize: (i) Packaging construction offer or transport packages authorized Deputy Associate Administrator for standards that differ from a UN by DOT SPs under the terms specified Regulatory and Legislative Operations. Standard or DOT Specification, (ii) therein and that if an SP contains [FR Doc. 2011–22058 Filed 8–29–11; 8:45 am] alternative means of testing or closure, requirements applicable to a carrier of BILLING CODE 4910–06–P (iii) reuse of the packaging in general, an SP package, the offeror shall provide (iv) alternative hazard communication a copy of the SP to the respective carrier requirements, (v) alternative segregation (see § 173.22a), unless excepted by the DEPARTMENT OF TRANSPORTATION requirements, or (vi) transportation of SP. In addition to specific requirements Pipeline and Hazardous Materials forbidden materials. contained in DOT SPs, the HMR PHMSA’s purpose in authorizing the Safety Administration includes requirements for hazard use of SPs is to allow industry to benefit communication and handling of SP [Docket No. PHMSA–2011–0162; Notice No. from alternative technologies, materials, packages. SP packages must be: 11–7] and/or processes while maintaining a • Plainly and durably marked ‘‘DOT– level of safety at least equal to the safety SP’’ followed by the SP number Safety Notice: Transportation of DOT level required under the HMR. assigned (see §§ 172.301(c) and Special Permit Packages in Commerce However, PHMSA wishes to emphasize 172.302(c)), unless excepted by the SP; AGENCY: Pipeline and Hazardous that failure to comply with SP and Materials Safety Administration requirements can result in breakdowns • Accompanied by shipping papers (PHMSA), DOT. in hazard communication, packaging bearing the notation ‘‘DOT–SP’’ ACTION: Notice. failures, property damage, injury, loss of followed by the SP number assigned life and even catastrophic events. and clearly associated with the shipping SUMMARY: In this safety notice, PHMSA In many cases, maintaining an description to which the SP applies (see is alerting the regulated community to equivalent level of safety while § 172.203(a)), unless excepted by the SP.

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Furthermore, under the training (2) Once a person has identified a contacting the Treasury Departmental requirements in § 172.704(a)(2), each DOT SP package, that person should Office Clearance Officer listed. hazmat employee must be provided obtain a current copy of the SP and Comments regarding this information function-specific training concerning review it for applicable requirements. collection should be addressed to the requirements of the HMR, and Copies of SPs may be obtained from OMB reviewer listed and to the exemptions or special permits issued PHMSA’s Web site at: http:// Treasury PRA Clearance Officer, under subchapter A of Title 49 that are phmsa.dot.gov/hazmat/regs/sp-a/ Department of the Treasury, 1750 specifically applicable to the functions special-permits. The person should also Pennsylvania Avenue, NW., Suite the employee performs. review the HMR requirements 11010, Washington, DC 20220. Non-compliance with SP package applicable to SP packages. DATES: Written comments should be requirements has serious safety (3) Shippers and carriers should received on or before September 29, consequences. PHMSA seeks to evaluate hazardous materials training 2011 to be assured of consideration. encourage compliance by aggressively programs and communication protocols enforcing SP safety standards and in their operations with respect to Office of Foreign Assets Control (OFAC) increasing its awareness and outreach recognizing and handling SP packages OMB Number: 1505–0198. efforts. to ensure that the subject is discussed Type of Review: Extension without Accordingly, PHMSA is publishing and included during knowledge testing. change of a currently approved this safety notice to further promote Any person performing a function collection. awareness of the ongoing safety concern required by an SP or shipping an SP Title: Requirement to Report and ensure that industry is aware of its package is required to receive ‘‘function- Information About the Shipment of responsibilities associated with the specific’’ training of the requirements Rough Diamonds. offering and transportation of hazardous contained in each special permit. Abstract: The information collection materials in SP packaging, the current (4) Third-party hazardous materials or is needed to monitor the integrity of regulatory requirements applicable to dangerous goods instructors, international rough diamond shipments. such transportation, and that regulatory consultants, and others, should review Respondents: Private Sector: violations will be prosecuted to the their training programs to ensure that Businesses or other for-profits. maximum extent permitted under the the subject of SP packages is discussed Estimated Total Annual Burden law. and included during knowledge testing. Hours: 1,750. Departmental Office Clearance Persons who violate the HMR may be (5) Shippers should implement or Officer: James Earl, DO/Office of Foreign subject to significant civil penalties and/ review existing pre-shipment Assets Control, 1500 Pennsylvania Ave., or criminal fines and imprisonment. procedures to ensure that a particular NW., Rm. 5205, Washington, DC 20220; Maximum civil penalties may be packaging is prepared as authorized by (202) 622–1947 imposed of up to $55,000 per violation an SP and/or the HMR and that all communication requirements have been OMB Reviewer: Shagufta Ahmed, or $110,000 per violation if a death, Office of Management and Budget, New serious illness, or severe injury occurs met. These recommendations are not Executive Office Building, Room 10235, to a person or substantial destruction of Washington, DC 20503; (202) 395–7873. property. Potential criminal penalties exclusive; we hope that industry include fines of up to $500,000 and/or representatives will use the information Dawn D. Wolfgang, ten years in jail. provided herein, together with any other Treasury PRA Clearance Officer. More detailed information on the available information, to consider other [FR Doc. 2011–22061 Filed 8–29–11; 8:45 am] requirements in the HMR governing the reasonable measures they believe BILLING CODE 4810–25–P offering and transportation of SP appropriate to increase awareness of packages is available on DOT’s Hazmat DOT SPs and their responsibility in the Safety Web site: http:// handling and transporting such DEPARTMENT OF THE TREASURY www.phmsa.dot.gov/hazmat. The HMR packages. are also accessible through PHMSA’s Issued in Washington, DC on August 24, Internal Revenue Service Web site, and answers to specific 2011. Proposed Collection; Comment questions may be obtained from the Magdy El-Sibaie, Request for Form 8308 Hazardous Materials Information Center Associate Administrator for Hazardous at 1–800–467–4922 (in Washington, DC, Materials Safety. AGENCY: Internal Revenue Service (IRS), call 202–366–4488). [FR Doc. 2011–22110 Filed 8–29–11; 8:45 am] Treasury. III. Recommended Action BILLING CODE 4910–60–P ACTION: Notice and request for comments. PHMSA recommends that industry institute quality control measures to SUMMARY: The Department of the DEPARTMENT OF THE TREASURY identify and properly handle DOT SP Treasury, as part of its continuing effort packages and packages containing Submission for OMB Review; to reduce paperwork and respondent hazardous materials in general: Comment Request burden, invites the general public and (1) Shippers and carriers should stress other Federal agencies to take this the importance of recognizing an SP August 24, 2011. opportunity to comment on proposed package to their employees. The The Department of the Treasury will and/or continuing information importance of recognizing an SP submit the following public information collections, as required by the package should be given the same level collection requirement to OMB for Paperwork Reduction Act of 1995, of attention as when they determine review and clearance under the Public Law 104–13(44 U.S.C. whether a packaging specification meets Paperwork Reduction Act of 1995, 3506(c)(2)(A)). Currently, the IRS is a UN standard or DOT specification. Public Law 104–13 on or after the date soliciting comments concerning Form This is especially important to those of publication of this notice. A copy of 8308, Report of a Sale or Exchange of operations that re-ship packages. the submission may be obtained by Certain Partnership Interests.

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DATES: Written comments should be agency, including whether the 7485, FAX (202) 461–0966 or e-mail received on or before October 31, 2011 information shall have practical utility; [email protected]. Please refer to to be assured of consideration. (b) the accuracy of the agency’s estimate ‘‘OMB Control No. 2900–0594.’’ ADDRESSES: Direct all written comments of the burden of the collection of SUPPLEMENTARY INFORMATION: to Yvette B. Lawrence, Internal Revenue information; (c) ways to enhance the Title: Election to Apply Selected Service, room 6129, 1111 Constitution quality, utility, and clarity of the Reserve Services to Either Montgomery Avenue NW., Washington, DC 20224. information to be collected; (d) ways to GI Bill-Active Duty or to the FOR FURTHER INFORMATION CONTACT: minimize the burden of the collection of Montgomery GI Bill-Selected Reserve. Requests for additional information or information on respondents, including OMB Control Number: 2900–0594. copies of the form(s) and instructions through the use of automated collection Type of Review: Extension of a should be directed to Joel Goldberger, techniques or other forms of information previously approved collection. Abstract: Reservist who participant in (202) 622–6665, Internal Revenue technology; and (e) estimates of capital the Montgomery GI Bill—Active Duty Service, room 6129, 1111 Constitution or start-up costs and costs of operation, and served on active duty for two years Avenue NW., Washington, DC 20224, or maintenance, and purchase of services followed by six years in the Selected through the internet to to provide information. Reserve must elect to apply the selected [email protected]. Approved: August 16, 2011. reserved credit either toward the SUPPLEMENTARY INFORMATION: Gerald Shields, Montgomery GI Bill-Active Duty or Title: Report of a Sale or Exchange of IRS Reports Clearance Officer. toward the Montgomery GI Bill-Selected Certain Partnership Interests. [FR Doc. 2011–22043 Filed 8–29–11; 8:45 am] Reserve benefits. Reservists must make OMB Number: 1545–0941. BILLING CODE 4830–01–P this election in writing, which will take Form Number: 8308. effect when the individual either Abstract: Form 8308 is an information negotiates a check or receives education return that gives the IRS the names of DEPARTMENT OF VETERANS benefits via direct deposit or electronic the parties involved in an exchange of AFFAIRS funds transfer under the program a partnership interest under Internal elected. VA uses the election to [OMB Control No. 2900–0594] Revenue Code section 751(a). It is also determine which benefit is payable used by the partnership as a statement Agency Information Collection based on the individual’s Selected to the transferor and transferee. It alerts (Election To Apply Selected Reserve Reserve service. the transferor that a portion of the gain Services to either Montgomery GI Bill- An agency may not conduct or on the sale of a partnership interest may Active Duty or to the Montgomery GI sponsor, and a person is not required to be ordinary income. Bill-Selected Reserve) Activity Under respond to a collection of information Current Actions: There are no changes OMB Review unless it displays a currently valid OMB being made to Form 8308 at this time. control number. The Federal Register Type of Review: Extension of a AGENCY: Veterans Benefits Notice with a 60-day comment period currently approved collection. Administration, Department of Veterans soliciting comments on this collection Affected Public: Business or other for- Affairs. of information was published on June 8, profit organizations, individuals, and ACTION: Notice. 2011, at page 33416. farms. Affected Public: Individuals or Estimated Number of Respondents: SUMMARY: In compliance with the households. 200,000. Paperwork Reduction Act (PRA) of 1995 Estimated Annual Burden: 2,667 Estimated Time Per Respondent: 7 (44 U.S.C. 3501–3521), this notice hours. hrs., 18 minutes. announces that the Veterans Benefits Estimated Average Burden per Estimated Total Annual Burden Administration (VBA), Department of Respondent: 20 minutes. Hours: 1,460,000. Veterans Affairs, will submit the Frequency of Response: One time. The following paragraph applies to all collection of information abstracted Estimated Number of Respondents: of the collections of information covered below to the Office of Management and 8,000. by this notice: Budget (OMB) for review and comment. Dated: August 24, 2011. An agency may not conduct or The PRA submission describes the By direction of the Secretary. sponsor, and a person is not required to nature of the information collection and respond to, a collection of information Denise McLamb, its expected cost and burden; it includes Program Analyst, Enterprise Records Service. unless the collection of information the actual data collection instrument. displays a valid OMB control number. [FR Doc. 2011–22018 Filed 8–29–11; 8:45 am] DATES: Books or records relating to a collection Comments must be submitted on BILLING CODE 8320–01–P of information must be retained as long or before September 29, 2011. as their contents may become material ADDRESSES: Submit written comments in the administration of any internal on the collection of information through DEPARTMENT OF VETERANS revenue law. Generally, tax returns and http://www.Regulations.gov or to VA’s AFFAIRS tax return information are confidential, OMB Desk Officer, OMB Human [OMB Control No. 2900–0621] as required by 26 U.S.C. 6103. Resources and Housing Branch, New Request for Comments: Comments Executive Office Building, Room 10235, Agency Information Collection submitted in response to this notice will Washington, DC 20503 (202) 395–7316. (National Practitioner Data Bank be summarized and/or included in the Please refer to ‘‘OMB Control No. 2900– (NPDB) Regulations) Activity Under request for OMB approval. All 0594’’ in any correspondence. OMB Review FOR FURTHER INFORMATION CONTACT: comments will become a matter of AGENCY: Veterans Health public record. Comments are invited on: Denise McLamb, Enterprise Records Administration, Department of Veterans (a) Whether the collection of Service (005R1B), Department of Affairs. information is necessary for the proper Veterans Affairs, 810 Vermont Avenue, ACTION: Notice. performance of the functions of the NW., Washington, DC 20420, (202) 461–

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SUMMARY: In compliance with the Estimated Annual Burden: 2,500. OMB Control Number: 2900–0747. Paperwork Reduction Act (PRA) of 1995 Frequency of Response: On occasion. Type of Review: Extension of a (44 U.S.C. 3501–21), this notice Estimated Average Burden per currently approved collection. announces that the Veterans Health Respondents: 5 hours. Abstract: VA Forms 21–526EZ, 21– Administration (VHA), Department of Estimated Annual Responses: 500. 527EZ and 21–534EZ will be used to Veterans Affairs, will submit the Dated: August 24, 2011. process a claim within 90 days after collection of information abstracted By direction of the Secretary. receipt from a claimant. Claimants are below to the Office of Management and Denise McLamb, required to sign and date the Budget (OMB) for review and comment. Program Analyst, Enterprise Records Service. certification, certifying as of the signed The PRA submission describes the [FR Doc. 2011–22015 Filed 8–29–11; 8:45 am] date, no additional information or nature of the information collection and evidence is available or needs to be BILLING CODE 8320–01–P its expected cost and burden and submitted in order to adjudicate the includes the actual data collection claim. instrument. DEPARTMENT OF VETERANS An agency may not conduct or DATES: Comments must be submitted on AFFAIRS sponsor, and a person is not required to or before September 29, 2011. respond to a collection of information [OMB Control No. 2900–0747] unless it displays a currently valid OMB ADDRESSES: Submit written comments control number. The Federal Register on the collection of information through Agency Information Collection (Fully Notice with a 60-day comment period http://www.Regulations.gov; or to VA’s Developed Claims) (Applications for soliciting comments on this collection OMB Desk Officer, OMB Human Compensation; Applications for of information was published on June Resources and Housing Branch, New Pension; Applications for DIC, Death 15, 2011, at page 35086. Executive Office Building, Room 10235, Pension, and/or Accrued Benefits): Affected Public: Individuals or Washington, DC 20503 (202) 395–7316. Activity Under OMB Review Please refer to ‘‘OMB Control No. 2900– Households. 0621’’ in any correspondence AGENCY: Veterans Benefits Estimated Annual Burden: 43,516 Administration, Department of Veterans hours. FOR FURTHER INFORMATION CONTACT: Affairs. Estimated Average Burden per Denise McLamb, Enterprise Records ACTION: Notice. Respondent: 25 minutes. Service (005R1B), Department of Frequency of Response: One time. Veterans Affairs, 810 Vermont Avenue, SUMMARY: In compliance with the Estimated Number of Respondents: NW., Washington, DC 20420, (202) 461– Paperwork Reduction Act (PRA) of 1995 104,440. 7485, fax (202) 461–0966 or e-mail (44 U.S.C. 3501–3521), this notice Dated: August 24, 2011. [email protected]. Please refer to announces that the Veterans Benefits ‘‘OMB Control No. 2900–0621.’’ Administration (VBA), Department of By direction of the Secretary. SUPPLEMENTARY INFORMATION: Veterans Affairs, will submit the Denise McLamb, Title: National Practitioner Data Bank collection of information abstracted Program Analyst, Enterprise Records Service. Regulations (NPDB). below to the Office of Management and [FR Doc. 2011–22021 Filed 8–29–11; 8:45 am] OMB Control Number: OMB Control Budget (OMB) for review and comment. BILLING CODE 8320–01–P No. 2900–0621. The PRA submission describes the Type of Review: Extension of a nature of the information collection and previously approved collection. its expected cost and burden; it includes DEPARTMENT OF VETERANS Abstracts: The National Practitioner the actual data collection instrument. AFFAIRS Data Bank, authorized by the Health DATES: Care Quality Improvement Act of 1986 Comments must be submitted on [OMB Control No. 2900–New] and administered by the Department of or before September 29, 2011. Health and Human Service, was ADDRESSES: Submit written comments on the collection of information through Agency Information Collection established for the purpose of collecting (Nonprofit Research and Education and releasing certain information http://www.Regulations.gov or to VA’s OMB Desk Officer, OMB Human Corporations (NPCs) Data Collection) concerning physicians, dentists, and Activity Under OMB Review other licensed health care practitioners. Resources and Housing Branch, New The Act requires VA to obtain Executive Office Building, Room 10235, AGENCY: Veterans Health information from the Data Bank on Washington, DC 20503 (202) 395–7316. Administration, Department of Veterans health care providers who provide or Please refer to ‘‘OMB Control No. 2900– Affairs. 0747’’ in any correspondence. seek to provide health care services at ACTION: Notice. VA facilities and report information FOR FURTHER INFORMATION CONTACT: regarding malpractice payments and Denise McLamb, Enterprise Records SUMMARY: In compliance with the adverse clinical privileges action to the Service (005R1B), Department of Paperwork Reduction Act (PRA) of 1995 Data Bank. Veterans Affairs, 810 Vermont Avenue, (44 U.S.C. 3501–21), this notice An agency may not conduct or NW., Washington, DC 20420, (202) 461– announces that the Veterans Health sponsor, and a person is not required to 7485, FAX (202) 273–0443 or e-mail Administration (VHA), Department of respond to a collection of information [email protected]. Please refer to Veterans Affairs, will submit the unless it displays a currently valid OMB ‘‘OMB Control No. 2900–0747.’’ collection of information abstracted control number. The Federal Register SUPPLEMENTARY INFORMATION: below to the Office of Management and Notice with a 60-day comment period Titles: Fully Developed Claims Budget (OMB) for review and comment. soliciting comments on this collection (Applications for Compensation; The PRA submission describes the of information was published on June 7, Applications for Pension; Applications nature of the information collection and 2011, at page 33032. for DIC, Death Pension, and/or Accrued its expected cost and burden and Affected Public: Individuals or Benefits, VA Forms 21–526EZ, 21– includes the actual data collection households. 527EZ and 21–534EZ. instrument.

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DATES: Comments must be submitted on a. Nonprofit Research and Education SUMMARY: In compliance with the or before September 29, 2011. Corporations (NPCs) PC Annual Report Paperwork Reduction Act (PRA) of 1995 ADDRESSES: Submit written comments Template, VA Form 10–0510—301 (44 U.S.C. 3501–3521), this notice on the collection of information through hours. announces that the Veterans Benefits http://www.Regulations.gov; or to VA’s b. Nonprofit Research and Education Administration (VBA), Department of OMB Desk Officer, OMB Human Corporations (NPCs) Audit Actions Veterans Affairs, will submit the Resources and Housing Branch, New Items Remediation Plans, VA Form 10– collection of information abstracted Executive Office Building, Room 10235, 0510a—84 hours. below to the Office of Management and Washington, DC 20503 (202) 395–7316. c. Nonprofit Program Office (NPPO) Budget (OMB) for review and comment. Please refer to ‘‘OMB Control No. 2900– Internal Control Questionnaire, VA The PRA submission describes the New’’ in any correspondence. Form 10–0510b—387 hours. nature of the information collection and FOR FURTHER INFORMATION CONTACT: d. Nonprofit Program Office (NPPO) its expected cost and burden; it includes Denise McLamb, Enterprise Records Operations Oversight Questionnaire, VA the actual data collection instrument. Service (005R1B), Department of Form 10–0510c—129 hours. DATES: Comments must be submitted on Veterans Affairs, 810 Vermont Avenue, Estimated Average Burden Per or before September 29, 2011. NW., Washington, DC 20420, (202) 461– Respondent: ADDRESSES: Submit written comments 7485, fax (202) 461–0966 or e-mail a. Nonprofit Research and Education on the collection of information through [email protected]. Please refer to Corporations (NPCs) PC Annual Report http://www.Regulations.gov or to VA’s ‘‘OMB Control No. 2900–New.’’ Template, VA Form 10–0510—210 OMB Desk Officer, OMB Human minutes. SUPPLEMENTARY INFORMATION: Resources and Housing Branch, New b. Nonprofit Research and Education Titles: Nonprofit Research and Executive Office Building, Room 10235, Corporations (NPCs) Audit Actions Education Corporations (NPCs) Data Washington, DC 20503 (202) 395–7316. Items Remediation Plans, VA Form 10– Collection: Please refer to ‘‘OMB Control No. 2900– 0510a—120 minutes. a. Nonprofit Research and Education 0014’’ in any correspondence. c. Nonprofit Program Office (NPPO) Corporations (NPCs) PC Annual Report FOR FURTHER INFORMATION CONTACT: Internal Control Questionnaire, VA Template, VA Form 10–0510. Denise McLamb, Enterprise Records b. Nonprofit Research and Education Form 10–0510b—270 minutes. Service (005R1B), Department of Corporations (NPCs) Audit Actions d. Nonprofit Program Office (NPPO) Veterans Affairs, 810 Vermont Avenue, Items Remediation Plans, VA Form 10– Operations Oversight Questionnaire, VA NW., Washington, DC 20420, (202) 461– 0510a. Form 10–0510c—90 minutes. 7485, FAX (202) 273–0443 or e-mail c. Nonprofit Program Office (NPPO) Frequency of Response: Annually. [email protected]. Please refer to Internal Control Questionnaire, VA Estimated Number of Respondents: ‘‘OMB Control No. 2900–0014.’’ a. Nonprofit Research and Education Form 10–0510b. SUPPLEMENTARY INFORMATION: Corporations (NPCs) PC Annual Report d. Nonprofit Program Office (NPPO) Title: Authorization and Certification Template, VA Form 10–0510—86. Operations Oversight Questionnaire, VA of Entrance or Reentrance into b. Nonprofit Research and Education Form 10–0510c. Rehabilitation and Certification of Corporations (NPCs) Audit Actions OMB Control Number: 2900–New. Status, VA Form 28–1905. Items Remediation Plans, VA Form 10– Type of Review: In use without an OMB Control Number: 2900–0014. OMB number. 0510a—42. Type of Review: Extension of a Abstracts: c. Nonprofit Program Office (NPPO) currently approved collection. a. VA Form 10–0510 is used to Internal Control Questionnaire, VA Abstract: VA case managers use VA monitor the progress of NPC programs. Form 10–0510b—86. Form 28–1905 to identify program b. VA Form 10–0510a is used to d. Nonprofit Program Office (NPPO) participants and provide specific review the NPC’s resolutions for audit Operations Oversight Questionnaire, VA guidelines on the planned program to deficiencies and recommendations. Form 10–0510c—86. facilities providing education, training, c. VA Form 10–0510b is used to Dated: August 24, 2011. or other rehabilitation services. Facility conduct reviews, audits, and By direction of the Secretary. officials certify that the claimant has investigations of the NPCs. The Denise McLamb, enrolled in the planned program and questionnaire will also be used to Program Analyst, Enterprise Records Service. submit the form to VA. VA uses the data uncover weaknesses and lapses in [FR Doc. 2011–22022 Filed 8–29–11; 8:45 am] collected to ensure that claimants do not internal controls. receive benefits for periods for which BILLING CODE 8320–01–P d. VA Form 10–0510c, or portions of they did not participate in any it, will be used to conduct operational rehabilitation, special restorative or reviews of the NPCs. The major DEPARTMENT OF VETERANS specialized vocational training objective of the questionnaire is to AFFAIRS programs. uncover operating problems and areas An agency may not conduct or that need improvement. [OMB Control No. 2900–0014] sponsor, and a person is not required to An agency may not conduct or respond to a collection of information Agency Information Collection sponsor, and a person is not required to unless it displays a currently valid OMB (Authorization and Certification of respond to a collection of information control number. The Federal Register Entrance or Reentrance into unless it displays a currently valid OMB Notice with a 60-day comment period Rehabilitation and Certification of control number. The Federal Register soliciting comments on this collection Status): Activity Under OMB Review Notice with a 60-day comment period of information was published on June soliciting comments on this collection AGENCY: Veterans Benefits 30, 2011, at pages 38460–38461. of information was published on June 8, Administration, Department of Veterans Affected Public: Not-for-profit 2011, at pages 33416–33417. Affairs. institutions. Affected Public: Federal Government. Estimated Annual Burden: 7,500 ACTION: Notice. Estimated Annual Burden: hours.

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Estimated Average Burden per awarded by another entity or DATES: Comments must be submitted on Respondent: 5 minutes. government agency for personal injury or before September 29, 2011. Frequency of Response: One time. or death. Such award is considered as ADDRESSES: Submit written comments Estimated Number of Respondents: countable income; however, medical, on the collection of information through 90,000 legal or other expenses incident to the http://www.Regulations.gov; or to VA’s Dated: August 24, 2011. injury or death, or incident to the OMB Desk Officer, OMB Human By direction of the Secretary. collection or recovery of the Resources and Housing Branch, New Denise McLamb, compensation may be deducted from Executive Office Building, Room 10235, the amount awarded or settled. The Program Analyst, Enterprise Records Service. Washington, DC 20503 (202) 395–7316. information collected is use to Please refer to ‘‘OMB Control No. 2900– [FR Doc. 2011–22019 Filed 8–29–11; 8:45 am] determine the claimant’s eligibility for 0768’’ in any correspondence. BILLING CODE 8320–01–P income based benefits and the rate FOR FURTHER INFORMATION CONTACT: payable. Denise McLamb, Enterprise Records An agency may not conduct or DEPARTMENT OF VETERANS Service (005R1B), Department of sponsor, and a person is not required to AFFAIRS Veterans Affairs, 810 Vermont Avenue, respond to a collection of information NW., Washington, DC 20420, (202) 461– [OMB Control No. 2900–0545] unless it displays a currently valid OMB 7485, fax (202) 461–0966 or e-mail control number. The Federal Register [email protected]. Please refer to Agency Information Collection (Report Notice with a 60-day comment period ‘‘OMB Control No. 2900–0768.’’ of Medical, Legal, and Other Expenses soliciting comments on this collection SUPPLEMENTARY INFORMATION: Incident to Recovery for Injury or of information was published on June Death) Activity under OMB Review Title: Joint Application for 14, 2011, at page 34812. Comprehensive Assistance and Support AGENCY: Veterans Benefits Affected Public: Individuals or Services for Family Caregivers, VA Administration, Department of Veterans households. Form 10–10CG. Affairs. Estimated Annual Burden: 1,125 OMB Control Number: OMB Control hours. ACTION: Notice. No. 2900–0768. Estimated Average Burden per Type of Review: Extension of a SUMMARY: In compliance with the Respondent: 45 minutes. previously approved collection. Paperwork Reduction Act (PRA) of 1995 Frequency of Response: One time. Abstracts: VA Form 10–10CG is (44 U.S.C. 3501–3521), this notice Estimated Number of Respondents: completed by Veterans who served in announces that the Veterans Benefits 1,500. Operation Enduring Freedom/Operation Administration (VBA), Department of Dated: August 24, 2011. Iraqi Freedom/Operation New Dawn or Veterans Affairs, will submit the By direction of the Secretary. active duty service member undergoing collection of information abstracted Denise McLamb, medical discharge to determine their below to the Office of Management and eligibility to receive certain medical, Program Analyst, Enterprise Records Service. Budget (OMB) for review and comment. travel, training, and financial benefits The PRA submission describes the [FR Doc. 2011–22016 Filed 8–29–11; 8:45 am] under the Caregiver Program. nature of the information collection and BILLING CODE 8320–01–P Individuals designated as primary or its expected cost and burden; it includes secondary family caregiver also the actual data collection instrument. complete VA Form 10–10CG to DEPARTMENT OF VETERANS determine whether they meet the DATES: Comments must be submitted on AFFAIRS or before September 29, 2011. criteria to serve as caregiver and their ADDRESSES: Submit written comments [OMB Control No. 2900–0768] eligibility receive stipend and certain benefits under the Caregiver Program. on the collection of information through Agency Information Collection (Joint http://www.Regulations.gov or to VA’s An agency may not conduct or Application for Comprehensive sponsor, and a person is not required to OMB Desk Officer, OMB Human Assistance and Support Services for Resources and Housing Branch, New respond to a collection of information Family Caregivers) Activity Under OMB unless it displays a currently valid OMB Executive Office Building, Room 10235, Review Washington, DC 20503 (202) 395–7316. control number. The Federal Register Notice with a 60-day comment period Please refer to ‘‘OMB Control No. 2900– AGENCY: Veterans Health 0545’’ in any correspondence. Administration, Department of Veterans soliciting comments on this collection of information was published on June FOR FURTHER INFORMATION CONTACT: Affairs. 14, 2011, at pages 34812–34813. Denise McLamb, Enterprise Records ACTION: Notice. Affected Public: Individuals or Service (005R1B), Department of SUMMARY: In compliance with the households. Veterans Affairs, 810 Vermont Avenue, Estimated Total Annual Burden: Paperwork Reduction Act (PRA) of 1995 NW., Washington, DC 20420, (202) 461– 1,250 hours. (44 U.S.C. 3501–21), this notice 7485, FAX (202) 273–0443 or e-mail Estimated Average Burden per announces that the Veterans Health [email protected]. Please refer to Respondent: 15 minutes. ‘‘OMB Control No. 2900–0545.’’ Administration (VHA), Department of Frequency of Response: On occasion. SUPPLEMENTARY INFORMATION: Veterans Affairs, will submit the Estimated Number of Respondents: Title: Report of Medical, Legal, and collection of information abstracted 5,000. below to the Office of Management and Other Expenses Incident to Recovery for Dated: August 24, 2011. Injury or Death, VA Form 21–8416b. Budget (OMB) for review and comment. By direction of the Secretary. OMB Control Number: 2900–0545. The PRA submission describes the Type of Review: Extension of a nature of the information collection and Denise McLamb, currently approved collection. its expected cost and burden and Program Analyst, Enterprise Records Service. Abstract: Claimants complete VA includes the actual data collection [FR Doc. 2011–22020 Filed 8–29–11; 8:45 am] Form 21–8416b to report compensation instrument. BILLING CODE 8320–01–P

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Part II

National Labor Relations Board

29 CFR Part 104 Notification of Employee Rights Under the National Labor Relations Act; Final Rule

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NATIONAL LABOR RELATIONS mutual aid or protection, and shall also have The Board suggested a number of BOARD the right to refrain from any or all such reasons why such a knowledge gap activities[.] could exist—the low percentage of 29 CFR Part 104 In Section 1, 29 U.S.C. 151, Congress employees who are represented by RIN 3142–AA07 explained why it was necessary for unions, and thus lack an important those rights to be protected: source of information about NLRA Notification of Employee Rights Under The denial by some employers of the right rights; the increasing proportion of the National Labor Relations Act of employees to organize and the refusal by immigrants in the work force, who are some employers to accept the procedure of unlikely to be familiar with their AGENCY: National Labor Relations collective bargaining lead to strikes and other workplace rights; and lack of Board. forms of industrial strife or unrest, which information about labor law and labor ACTION: Final rule. have the intent or the necessary effect of relations on the part of high school burdening or obstructing commerce[.] * * * students who are about to enter the SUMMARY: On December 22, 2010, the * * * * * labor force.4 National Labor Relations Board (Board) Experience has proved that protection by Of greatest concern to the Board, issued a proposed rule requiring law of the right of employees to organize and however, is the fact that, except in very employers, including labor bargain collectively safeguards commerce limited circumstances, no one is organizations in their capacity as from injury, impairment, or interruption, and required to inform employees of their employers, subject to the National Labor promotes the flow of commerce by removing NLRA rights.5 The Board is almost Relations Act (NLRA) to post notices certain recognized sources of industrial strife unique among agencies and and unrest, by encouraging practices informing their employees of their rights departments administering major as employees under the NLRA. This fundamental to the friendly adjustment of final rule sets forth the Board’s review industrial disputes arising out of differences as to wages, hours, or other working ‘‘Renaissance at the NLRB—Opportunity and of and responses to comments on the conditions, and by restoring equality of Prospect for Non-Legislative Procedural Reform at proposal and incorporates any changes the Labor Board,’’ 23 Stetson L. Rev. 101, 107 bargaining power between employers and (1993); Morris, ‘‘NLRB Protection in the Nonunion made to the rule in response to those employees. Workplace: A Glimpse at a General Theory of comments. * * * * * Section 7 Conduct,’’ 137 U. Pa. L. Rev. 1673, 1675– The Board believes that many It is declared to be the policy of the United 1676 (1989). 75 FR at 80411. 4 employees protected by the NLRA are States to eliminate the causes of certain Id. 5 unaware of their rights under the statute substantial obstructions to the free flow of The Board requires that employees be notified of their NLRA rights in only the following narrow and that the rule will increase commerce and to mitigate and eliminate circumstances: (1) For the three working days knowledge of the NLRA among these obstructions when they have occurred before a Board-conducted representation election, employees, in order to better enable the by encouraging the practice and procedure of the employer is required to post a notice of election exercise of rights under the statute. A collective bargaining and by protecting the including a brief description of employee rights; see beneficial side effect may well be the exercise by workers of full freedom of 29 CFR 103.20. (2) When an employer or a union association, self-organization, and has been found to have violated employee rights promotion of statutory compliance by designation of representatives of their own under the NLRA, it is required to post a notice containing a brief summary of those rights. (3) employers and unions. choosing, for the purpose of negotiating the The final rule establishes the size, Before a union may seek to obligate newly hired terms and conditions of their employment or nonmember employees to pay dues and fees under form, and content of the notice, and sets other mutual aid or protection. a union-security clause, it must inform them of forth provisions regarding the Thus, Congress plainly stated that, in its their right under NLRB v. General Motors, 373 U.S. enforcement of the rule. 734 (1963), and Communications Workers v. Beck, judgment, protecting the rights of 487 U.S. 735 (1988), to be or remain nonmembers DATES: This rule will be effective on employees to form and join unions and and that nonmembers have the right to object to November 14, 2011. to engage in collective bargaining would paying for union activities unrelated to the union’s FOR FURTHER INFORMATION CONTACT: duties as the bargaining representative and to obtain benefit not only the employees a reduction in dues and fees of such activities. Lester A. Heltzer, Executive Secretary, themselves, but the nation as a whole. California Saw & Knife Works, 320 NLRB 224, 233 National Labor Relations Board, 1099 The Board was established to ensure (1995), enfd. sub nom. Machinists v. NLRB, 133 14th Street, NW., Washington, DC that employers and, later, unions F.3d 1012 (7th Cir. 1998), cert. denied sub nom. 20570, (202) 273–1067 (this is not a toll- Strang v. NLRB, 525 U.S. 813 (1998). The same respect the exercise of employees’ rights notice must also be given to union members if they free number), 1–866–315–6572 (TTY/ under the NLRA.2 did not receive it when they entered the bargaining TDD). For employees to fully exercise their unit. Paperworkers Local 1033 (Weyerhaeuser Paper SUPPLEMENTARY INFORMATION: NLRA rights, however, they must know Co.), 320 NLRB 349, 350 (1995), rev’d. on other that those rights exist and that the Board grounds sub nom. Buzenius v. NLRB, 124 F.3d 788 I. Background on the Rulemaking (6th Cir. 1997), vacated sub nom. United protects those rights. As the Board Paperworkers Intern. Union v. Buzenius, 525 U.S. The NLRA, enacted in 1935, is the explained in its Notice of Proposed 979 (1998). (4) When an employer voluntarily Federal statute that regulates most Rulemaking (NPRM), 75 FR 80410, it recognizes a union, the Board has required that the 3 employer must post a notice informing employees: private sector labor-management has reason to think that most do not. (i) That the employer recognized the union on the 1 relations in the United States. Section basis of evidence that it was designated by a 7 of the NLRA, 29 U.S.C. 157, 2 The original NLRA did not include restrictions majority of the unit employees; (ii) the date of guarantees that on the actions of unions; those were added in the recognition; (iii) that all employees, including those Labor-Management Relations (Taft-Hartley) Act of who previously signed cards for the recognized Employees shall have the right to self- 1947, 29 U.S.C. 141 et seq., Title I. union, have the right to be represented by a labor organization, to form, join, or assist labor 3 The Board cited three law review articles in organization of their choice, or no union at all; (iv) organizations, to bargain collectively through which the authors contended that American that within 45 days of the date of the notice a representatives of their own choosing, and to workers are largely unaware of their NLRA rights, decertification or rival petition, supported by 30 engage in other concerted activities for the that the Board can take action to vindicate those percent or more of the unit employees, may be filed rights, and that this lack of knowledge stands in the with the Board and will be processed to an election; purpose of collective bargaining or other way of employees’ effectively exercising their and, (v) that if no petition is filed within 45 days, rights. Peter D. DeChiara, ‘‘The Right to Know: An the recognition will not be subject to challenge for 1 Labor-management relations in the railroad and Argument for Informing Employees of Their Rights a reasonable period to allow the employer and airline industries are governed by the Railway under the National Labor Relations Act,’’ 32 Harv. union to negotiate a collective-bargaining Labor Act, 45 U.S.C. 151 et seq. J. on Legis. 431, 433–434 (1995); Charles J. Morris, agreement. Dana Corp., 351 NLRB 434 (2007).

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Federal labor and employment laws in the NLRA and providing information In all, 7,034 comments were received not requiring employers routinely to pertaining to the enforcement of those from employers, employees, unions, post notices at their workplaces rights. 75 FR 80411. For the reasons employer organizations, worker informing employees of their statutory discussed more fully below, the Board assistance organizations, and other rights.6 Given this common practice of tentatively determined that the content concerned organizations and workplace notice-posting, it is of the notice should be the same as that individuals, including two members of reasonable for the Board to infer that a of the notice required under the Congress. The majority of comments, as posting requirement will increase Department of Labor’s notice posting well as Board Member Hayes’ dissent, employees’ awareness of their rights rule, 29 CFR part 471. Id. at 80412. Also, oppose the rule or aspects of it; many under the NLRA.7 Further support for as discussed at length below, the Board opposing comments contain suggestions that position is President Obama’s proposed that failure to post the notice for improvement in the event the Board recent Executive Order 13496, issued on would be found to be an unfair labor issues a final rule. Many comments, January 30, 2009, which stressed the practice—i.e., to interfere with, restrain, however, support the rule; a few of need for employees to be informed of or coerce employees in the exercise of those suggest changes to clarify or their NLRA rights. Executive Order their NLRA rights, in violation of strengthen the rule. The Board wishes to 13496 requires Federal contractors and Section 8(a)(1) of the NLRA. Id. at express its appreciation to all those who subcontractors to include in their 80414. The Board also proposed that took the time to submit thoughtful and Government contracts specific failure to post the notice could lead to helpful comments and suggestions provisions requiring them to post tolling of the 6-month statute of concerning the proposed rule.9 notices of employees’ NLRA rights. On limitations for filing unfair labor After careful consideration of the May 20, 2010, the Department of Labor practice charges, and that knowing and comments received, the Board has issued a Final Rule implementing the willful failure to post the notice could decided to issue a final rule that is order effective June 21, 2010. 75 FR be considered as evidence of unlawful similar to that proposed in the NPRM, 28368, 29 CFR part 471. motive in unfair labor practice cases. Id. but with some changes suggested by After due consideration, the Board The Board explained that the burden of commenters. The most significant has decided to require that employees of compliance would be minimal—the change in the final rule is the deletion all employers subject to the NLRA be notices would be made available at no of the requirement that employers informed of their NLRA rights. charge by the Board (both electronically distribute the notice via email, voice Informing employees of their statutory and in hard copy), and employers mail, text messaging or related rights is central to advancing the would only be required to post the electronic communications if they NLRA’s promise of ‘‘full freedom of notices in places where they customarily communicate with their association, self-organization, and customarily post notices to employees; employees in that manner. Other designation of representatives of their the rule would contain no reporting or significant changes include own choosing.’’ NLRA Section 1, 29 recordkeeping requirements. Id. at clarifications of the employee notice U.S.C. 151. It is fundamental to 80412. Finally, the Board expressed its detailing employee rights protected by employees’ exercise of their rights that position that it was not required to the NLRA and unlawful conduct on the the employees know both their basic prepare an initial regulatory flexibility part of unions; clarification of the rule’s rights and where they can go to seek analysis of the proposed rule under the requirements for posting notices in help in understanding those rights. Regulatory Flexibility Act, 5 U.S.C. 601 foreign languages; allowing employers Notice of the right of self-organization, et seq., and that the notice posting to post notices in black and white as to form, join, or assist labor requirement was not subject to the well as in color; and exemption of the organizations, to bargain collectively, to Paperwork Reduction Act, 44 U.S.C. U.S. Postal Service from coverage of the engage in other concerted activities, and 3501 et seq. Id. at 80415–80416. rule. The Board’s responses to the The Board invited comments on its to refrain from such activities, and of comments, and the changes in the rule legal authority to issue the rule, the the Board’s role in protecting those and in the wording of the required content of the notice, the requirements statutory rights is necessary to effectuate notice of employee rights occasioned by for posting the notice, the proposed the provisions of the NLRA. the comments, are explained below. (In The Board believes that the workplace enforcement scheme, the definitions of his dissent, Board Member Hayes raises itself is the most appropriate place for terms in the proposed rule, and on its a number of points that are also made communicating with employees about positions concerning the Regulatory in some of the comments. The Board’s their basic statutory rights as employees. Flexibility Act and the Paperwork responses to those comments should be Cf. Eastex, Inc. v. NLRB, 437 U.S. 556, Reduction Act. The Board stated that understood as responding to the dissent 574 (1978) (‘‘[T]he plant is a particularly comments would be accepted for 60 as well.) 10 appropriate place for the distribution of days following the publication of the [NLRA] material.’’). NPRM in the Federal Register, or until Accordingly, and pursuant to its comments received are included in the numbers February 22, 2011. The Board received cited in text above, those numbers overstate rulemaking authority under Section 6 of 6,560 comments by February 22. somewhat the number of individuals, organizations, the NLRA, the Board proposed a new However, many late-filed comments etc. that submitted comments. rule requiring all employers subject to were also submitted, and the Board 9 Many comments charge that the Board is issuing the NLRA to post a copy of a notice decided to accept all comments that it the rule for political reasons, to encourage and 8 spread unionism, to discourage employers and advising employees of their rights under received on or before March 23. employees from engaging in direct communication and problem solving, to drive up union 6 See, e.g., Title VII of the Civil Rights Act of 8 March 23, 2011 was the date that the Board membership in order to retain agency staff, and 1964, 42 U.S.C. 2000e–10(a); Age Discrimination in downloaded all of the electronic and (pdf. versions even to ‘‘line [its] pockets.’’ The Board responds Employment Act, 29 U.S.C. 627; Family and of) hard copy comments it had received from that its reasons for issuing the rule are set forth in Medical Leave Act, 29 U.S.C. 2601, 2619(a); Fair http://www.regulations.gov and subsequently this preamble. Labor Standards Act, 29 CFR 516.4 (implementing uploaded into a text analytics tool for coding and 10 The Board majority’s reasoning stands on its 29 U.S.C. 211). 75 FR 80411. review. own. By its silence, the majority does not adopt any 7 As set forth in the NPRM, two petitions were A few commenters submitted their comments in characterization made by the dissent of the filed to address this anomaly. 75 FR 80411. both electronic and hard copy form. Because all majority’s rationale or motives.

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II. Authority ‘‘reference the legal authority under notion that broad grants of rulemaking which the rule is proposed.’’ 14 authority conveyed legislative Section 6 of the NLRA, 29 U.S.C. 156, The Board believes that these rulemaking power.20 Although the provides that ‘‘The Board shall have comments are in error because the Board had historically chosen to make authority from time to time to make, courts’ construction of other statutes’ policy by adjudications, the Supreme amend, and rescind, in the manner general rulemaking authority, as well as Court, consistent with the non-NLRA prescribed by the Administrative Section 6 in particular, fully support its case law, used a pair of Board Procedure Act [5 U.S.C. 553], such rules reading of this statutory provision. In enforcement cases to unanimously and regulations as may be necessary to fact, earlier this year, the Supreme Court emphasize the existence of the Board’s carry out the provisions of this Act.’’ As issued a decision in Mayo Foundation legislative rulemaking authority, NLRB discussed in detail below, the Board for Medical Education and Research v. v. Wyman-Gordon Co.21 and NLRB v. interprets Section 6 as authorizing the United States 15 (discussed more fully Bell Aerospace.22 rule. below), unanimously reaffirming the In 1991, after the Board enacted a rule principle that a general grant of involving health care units, the A. The Board’s Section 6 Rulemaking rulemaking authority fully suffices to Supreme Court unanimously upheld Authority confer legislative (or binding) that rule in American Hospital Association v. NLRB.23 The Supreme Numerous comments dispute the rulemaking authority upon an agency. Court found that that the general grant Board’s statutory authority to enact the Even prior to Mayo, a long line of both of rulemaking authority contained in proposed rule. Many note the fact that non-NLRA and NLRA cases supported reading Section 6 in the manner Section 6 of the Act ‘‘was the Board’s rulemaking is constrained suggested by the Board. Over forty years unquestionably sufficient to authorize by Congressional intent as evidenced in ago, in Thorpe v. Housing Authority,16 the rule at issue in this case unless its enabling statute. For instance, the the Supreme Court found that the limited by some other provision in the American Trucking Association quotes a expansive grant of rulemaking authority Act.’’ 24 As in AHA, there is no such Ninth Circuit case explaining that in Section 8 of the Housing Act was limitation here on the Board’s authority Section 6 ‘‘does not authorize the Board sufficient to grant legislative rulemaking to enact the proposed Rule, as explained to promulgate rules and regulations power to the Department of Housing further below. As Senator Tom Harkin which have the effect of enlarging its and Urban Development. The Court and Representative George Miller 25 authority beyond the scope intended by further noted that ‘‘[s]uch broad rule- emphasized in their comment, the 11 Congress,’’ and similarly, the Motor & making powers have been granted to Supreme Court in AHA examined ‘‘the Equipment Manufacturers Association numerous other federal administrative structure and the policy of the NLRA,’’ asserts, ‘‘A regulation cannot stand if it bodies in substantially the same in order to conclude: 12 is contrary to the statute.’’ The Board 17 language.’’ A few years later, in As a matter of statutory drafting, if agrees that it may not exercise its Mourning v. Family Publication Congress had intended to curtail in a rulemaking authority in a way contrary Services,18 the Court reaffirmed its particular area the broad rulemaking to that intended by Congress, but for the stance in Thorpe: authority granted in § 6, we would have reasons discussed below it also does not expected it to do so in language expressly Where the empowering provision of a believe that it has done so in this rule. describing an exception from that section or statute states simply that the agency may at least referring specifically to the section.26 Several comments assert that because ‘make * * * such rules and regulations as Thus, the Court could not have been NLRA Section 6 is written in general, may be necessary to carry out the provisions of this Act,’ we have held that the validity clearer that unless the Board is rather than specific, terms, the Board is ‘‘expressly’’ limited in some manner, not empowered to enact the proposed of a regulation promulgated thereunder will be sustained so long as it is ‘reasonably Section 6 empowers the Board to make rule. For example, Associated Builders related to the purposes of the enabling ‘‘such rules and regulations as may be and Contractors argues that ‘‘the lack of legislation.’ 19 necessary to carry out the provisions of express statutory language under Following the Supreme Court’s lead, this Act.’’ This point was underscored Section 6 of the NLRA to require the key circuit decisions then extended the posting of a notice of any kind ‘is a 20 Nat’l Ass’n. of Pharm. Mfrs. v. FTC, 637 F.2d 877, 880 (2d Cir. 1981) (‘‘this generous construction strong indicator, if not dispositive, that 14 See 5 USC 553(b)(2). For this conclusion, the the Board lacks the authority to impose of agency rulemaking authority has become firmly Heritage Foundation cites Global Van Lines, Inc., v. entrenched’’); Nat’l Petroleum Refiners Ass’n v. 13 such a requirement * * *.’ ’’ And the ICC, 714 F.2d 1290, 1297–98 (5th Cir. 1983). But FTC, 482 F.2d 672, 686 (D.C. Cir. 1973) (‘‘plain, Heritage Foundation likewise argues Global Van Lines did not find that a general expansive language’’ of the rulemaking grant at statement of authority can never meet the APA’s that the Board’s reliance upon its issue, together with the ‘‘broad, undisputed requirements to specify the legal authority for the policies’’ meant to be furthered by Congress’s general Section 6 rulemaking authority rule. Instead, the Fifth Circuit held that that portion enactment of the Federal Trade Commission Act of does not suffice to meet the of the APA is violated when an agency chooses to 1914, sufficed to grant the FTC substantive Administrative Procedure Act’s rely on additional statutory provisions in support rulemaking authority). of its rule for the first time on appeal, and those 21 394 U.S. 759, 764 (1969) (plurality opinion of requirement that the NPRM must grounds do not appear elsewhere in the Fortas, J., joined by Warren, C.J., Stewart, J., and administrative record. See id. at 1298–99. Here, in White, J.), 770 (Black, J., Marshall, J., and Brennan, contrast, the grounds for the Board’s rule are clearly 11 Gen. Eng’g, Inc. v. NLRB, 341 F.2d 367, 374 J), 777, 779 (Douglas, J.), 783 n. 2 (Harlan, J.). laid out in subsection B, Statutory Authority, (1965). 22 below. 416 U.S. 267, 295 (1974) (majority opinion of 12 Citing United States v. O’Hagan, 521 U.S. 642, Powell, J., and dissenting opinion of White, J. (and 15 131 S.Ct. 704, 713–14 (2011). 673 (1997). However, the Supreme Court actually three other justices)). 16 393 U.S. 268 (1969). held there that an agency’s interpretation of its 23 499 U.S. 606 (1991) (AHA). 17 Id. at 277 n. 28 (citations omitted). The enabling statute must be given ‘‘controlling weight 24 Id. at 609–10 (emphasis added). unless it is arbitrary, capricious, or manifestly rulemaking grant there at issue provided that HUD 25 (Hereafter, Harkin and Miller.) Senator Harkin contrary to the statute.’’ (quoting Chevron U.S.A. may, ‘‘from time to time * * * make, amend, and is the Chairman of the Senate Committee on Health, Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, rescind such rules and regulations as may be Education, Labor, and Pensions. Representative 844 (1984)). There, the Court upheld the rule and necessary to carry out the provisions of this Act,’’ Miller is Ranking Member on the House Committee found it was not arbitrary, capricious, or manifestly id. at 277, quite similar to Section 6 of the NLRA. on Education and the Workforce. contrary to the statute. 18 411 U.S. 356 (1973). 13 Quoting Member Hayes’ dissent, 75 FR 80415. 19 Id. at 369 (quoting Thorpe, 393 U.S. at 280–81). 26 Id. at 613 (emphasis added).

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in a Wagner Act-era Senate hearing, as rulings continue to fully support a broad place and time, that is not the case in cited by Americans for Limited construction of Section 6. the NLRA rights context, in which Government (ALG), in which it was Disputing this conclusion, ALG employees can just search the Internet acknowledged that the language of asserts that Section 6 was intended to be to find out more information. The Board Section 6 indeed grants ‘‘broad powers’’ used ‘‘primarily’’ for procedural agrees with the UFCW that posting a to the Board.27 rulemaking, and cites a Senate report notice is a minimally burdensome way And in January of this year, a from the Wagner Act’s legislative to ensure that employees receive certain unanimous Supreme Court, in Mayo history. That Senate report explains: information, although obviously, the Foundation for Medical Education and ‘‘[i]n no case do the rules have the force proposed notice will reach many more Research v. United States, affirmed this of law in the sense that criminal employers over a much longer period of key principle that a broad grant of penalties or fines accrue for their time than do election notices. And statutory rulemaking authority conveys violation, and it seems sufficient that ALG’s acknowledgment that a notice authority to adopt legislative rules.28 the rules prescribed must be ‘necessary posting in the workplace is in fact Mayo concerned in part the question of to carry out the provisions’ of the sometimes the most feasible means to how much deference a Treasury act.’’ 32 The Board disagrees. The cited inform employees of important Department tax regulation should language merely proclaims the obvious, information supports the Board’s belief, receive. In Mayo, an amicus argued that that no criminal penalties or fines explained below, that workplace notice the Treasury Department’s accrue for violating the Board’s rules. posting is a more efficient way of interpretation should receive less However, laws such as the NLRA that informing employees of their NLRA deference because it was issued under a do not impose criminal penalties or rights than relying on information general grant of rulemaking authority, as fines for their violation can also have available on the Internet. opposed to an interpretation issued the ‘‘force of law’’ (which is perhaps A few comments argue that the Board under a specific grant of authority.29 why the Senate report used the limiting is a law enforcement agency only, and The Court responded by first explaining phrase ‘‘in the sense of’’). The Supreme should not be engaging in rulemaking its earlier holding in U.S. v. Mead, that Court has previously recognized that for that reason. One comment asserts Chevron deference is appropriate ‘‘when final Agency orders under Sections 10 that ‘‘Congress did not intend to it appears that Congress delegated (e) and (f) of the Act, despite their non- ‘‘empower the NLRB to be a rulemaking authority to the agency generally to self enforcing nature, have ‘‘the force body, but rather an investigatory/ 36 make rules carrying the force of law, and effect of law.’’ 33 So too, do the enforcement agent of the NLRA.’’ The and that the agency interpretation Board’s rules have the force and effect Board responds that by enacting Section claiming deference was promulgated in of law, as held by the Supreme Court in 6, Congress plainly and explicitly the exercise of that authority.’’ 30 Then, AHA.34 intended to, and did, ‘‘empower the in significant part, the Court observed: Several comments discuss whether NLRB to be a rulemaking body.’’ And, Board Rule 103.20, which mandates the as shown above, AHA conclusively Our inquiry in that regard does not turn on found that the Board is empowered to whether Congress’s delegation of authority posting of an election notice in a was general or specific. workplace three working days prior to a use its rulemaking powers, as the Court representation election, should be had previously indicated in Wyman- * * * * * Gordon and Bell Aerospace.37 The Department issued the full-time considered analogous to the proposed A joint comment submitted by employee rule pursuant to the explicit rule. The United Food and Commercial Douglas Holtz-Eakin and Sam Batkins authorization to ‘‘prescribe all needful rules Workers International Union (UFCW) argues against the Board’s assertion of and regulations for the enforcement’’ of the comments that the election rule is, like Section 6 authority here by asserting Internal Revenue Code. 26 U.S.C. 7805(a). We the proposed rule, only minimally have found such ‘‘express congressional that ‘‘the Supreme Court has authorizations to engage in the process of burdensome and further noted that it 35 circumscribed NLRB rulemaking in the rulemaking’’ to be ‘‘a very good indicator of has never been challenged. ALG past: ‘The deference owed to an expert delegation meriting Chevron treatment.’’ 31 disagrees that the election rule should tribunal cannot be allowed to slip into be considered analogous here, because And so, all nine members of the a judicial inertia which results in the although in the election context a notice Supreme Court agreed on the following unauthorized assumption by an agency posting is the most feasible means to key principle: an express, albeit general, of major policy decisions properly made inform employees about an upcoming grant of rulemaking authority is fully by Congress.’ ’’ However, that comment election that is occurring at a specific sufficient for an agency to receive neglects to provide the citation for that quotation, American Ship Building Co. Chevron deference for its rulemaking. It 32 See Comparison of S. 2926 (73d Congress) and 38 follows that a broad grant of rulemaking S. 1958 (74th Congress) 24 (Comm. Print 1935), v. NLRB, which was not a rulemaking authority will suffice for the agency to reprinted in 1 Legislative History of the National case but an adjudication. In any event, engage in legislative rulemaking in the Labor Relations Act, 1935, (1949) at 1349. the Board does not agree that this rule first place. Thus, the Supreme Court’s 33 NLRB v. Sears, Roebuck & Co., 421 U.S. 132, presumes to make a major policy 153–54 (1975) (ordering disclosure of such Agency decision properly made by Congress opinions under the FOIA, and quoting legislative 27 Statement of Donald A. Callahan, U.S. Senate history of the FOIA to that effect, H.R. Rep. No. alone. As explained in subsection B, Committee on Education and Labor, March 29, 1497, p. 7, U.S. Code Cong. & Admin. News, 1966, 1935, Legislative History of the National Labor p. 2424). 36 Comment of Manufacturers’ Association of Relations Act, U.S. Government Printing Office, 34 499 U.S. at 609–10. But even if one were to South Central Pennsylvania. 1949, p. 2002. construe the report in the way advocated by the 37 In National Petroleum Refiners Ass’n v. FTC, 28 131 S. Ct. 704, 713–14 (2011). comment, such reports themselves do not have the 482 F.2d 672 (D.C. Cir. 1973), the court rejected the 29 Id. at 713. force and effect of law, see Lincoln v. Vigil, 508 U.S. argument that the FTC’s prosecutorial functions 30 Id. (quoting United States v. Mead, 533 U.S. 182, 192 (1993); AHA, 499 U.S. at 616, and thus at rendered it unsuitable for issuing rules. By way of 218, 226–27 (2001)); see also Chevron, 467 U.S. at best are only potential evidence of legislative intent. example, it noted that the NLRB is similar to the 842–43 (announcing two-part framework for 35 However, it is incorrect that the rule has never FTC in its methods of adjudication and determining whether courts should grant deference been challenged; it has been challenged and enforcement, but the Supreme Court had repeatedly to agency interpretations of enabling statutes). upheld. See Pannier Corp. v. NLRB, 120 F.3d 603, encouraged the Board to utilize its rulemaking 31 Mayo, 131 S. Ct. at 713–14 (emphasis added 606–07 (6th Cir. 1997) (rejecting an as-applied powers. Id. at 684. and citations omitted). challenge to Rule 103.20). 38 380 U.S. 300, 318 (1965).

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Statutory Authority, below, the Board ‘‘reasonably related to the purposes of therefore sets forth the core rights of believes that it has been Congressionally the enabling legislation.’’ 42 For the employees ‘‘to self-organization’’; ‘‘to authorized to make this regulatory reasons shown below, that standard is form, join, or assist labor organizations’’; decision in the interests of carrying out more than met in the present rule. ‘‘to bargain collectively’’; and ‘‘to engage the provisions of the Act. in other concerted activities’’; as well as B. The Board’s Statutory Authority To Many comments argue that the Board the right ‘‘to refrain from any or all such Issue This Rule should heed the use of the word activities.’’ Id. § 157. Section 8 defines ‘‘necessary’’ in Section 6. For instance, The National Labor Relations Act and prohibits union and employer the Portland Cement Association does not directly address an employer’s ‘‘unfair labor practices’’ that infringe on comments that Section 6 requires the obligation to post a notice of its employees’ Section 7 rights, id. § 158, Board to demonstrate that: (1) The employees’ rights arising under the Act and Section 10 authorizes the Board to specific rule being proposed is, in fact, or the consequences an employer may adjudicate unfair labor practice claims, necessary, and (2) the adoption of the face for failing to do so. However, as id. § 160, subject to the NLRA’s proposed rule will carry out one or more stated, NLRA Section 6 empowers the procedural six-month statute of specific provisions of the Act.39 The Board to promulgate legislative rules ‘‘as limitations, see Zipes v. Trans World Board believes, for the reasons may be necessary to carry out the Airlines, Inc., 455 U.S. 385, 395 n.11 expressed in subsection C, Factual provisions’’ of the Act. 29 U.S.C. 156. A (1982). Finally, Section 9 authorizes the Support, below, that the requisite determination of necessity under Board to conduct representation showing of necessity has been made. Section 6 made by the Board, as elections and issue certifications. 29 And, as explained below, the adoption administrator of the NLRA, is entitled to U.S.C. 159. of the proposed rule is consistent with deference. See Ragsdale v. Wolverine Notably, the NLRA does not give the Section 1 and will help effectuate World Wide, Inc., 535 U.S. 81, 86 (2002). Board or its General Counsel roving Sections 7, 8, 9 and 10 of the NLRA. Furthermore, even in the absence of investigatory powers. Although the The Board, however, disagrees with express rulemaking authority, ‘‘the Board is specifically empowered to the Motor & Equipment Manufacturers power of an administrative agency to ‘‘prevent’’ unfair labor practices, id. Association’s assertion based upon the administer a congressionally created § 160(a), ‘‘[t]he Board may not act until case of West Virginia State Board of * * * program necessarily requires the an unfair labor practice charge is filed Education v. Barnette 40 that the Board formulation of policy and the making of * * * alleging a violation of the Act.’’ needs to show ‘‘a grave and immediate rules to fill any gap left, implicitly or 2 The Developing Labor Law 2683 (John danger’’ before enacting a rule. First, explicitly, by Congress.’’ Morton v. Ruiz, E. Higgins, Jr. ed., 5th ed. 2006). In that case held that that very rigorous 415 U.S. 199, 231 (1974). Under the addition, certification ‘‘procedures are standard of review is required only well-known test articulated by the set in motion with the filing of a where a First Amendment freedom is Supreme Court in Chevron U.S.A. Inc. v. representation petition.’’ Id. at 2662. In alleged to have been infringed. The Natural Resources Defense Council, both instances, the initiating document Court further noted that where the First Inc., 467 U.S. 837 (1984), courts will is filed by a private party. Id. at 2683 Amendment is not implicated, the defer to the Board’s reasonable (citing 29 CFR 102.9); id. at 2662–63 government may regulate an area so interpretation of a gap left by Congress (citing 29 U.S.C. 159(c)(1)(A), (B), and in the NLRA. long as it has a ‘‘rational basis’’ for (e)(1)). An examination of the provisions of doing so. As explained in subsection B, Enforcement of the NLRA and the whole law demonstrate how the effectuation of Congress’s national labor Statutory Authority, below, this rule notice-posting rule is a legitimate infringes upon no First Amendment policy therefore depend on the exercise of both legislative rulemaking existence of outside actors who are not interests, and consequently, the rule authority under Section 6 and implied should be judged on a standard similar only aware of their rights but also know gap-filling authority under Chevron, 467 where they may seek to vindicate them to the ‘‘rational basis’’ test laid out in U.S. at 843. Section 1 of the NLRA Barnette. It was in fact just such a within appropriate timeframes. The explains that Congress deliberately Department of Labor made a similar deferential standard which the Supreme chose the means of ‘‘encouraging the Court used to examine the Board’s finding in an analogous rulemaking practice and procedure of collective proceeding under the Fair Labor health care rule in AHA. There, the bargaining’’ and ‘‘protecting the exercise Court found that even if it read Section Standards Act: ‘‘effective enforcement of of workers of full freedom of the [FLSA] depends to a great extent 9 to find any ambiguity, it still would association, self-organization, and have deferred to the Board’s ‘‘reasonable upon knowledge on the part of covered designation of representatives of their employees of the provisions of the act interpretation of the statutory text,’’ and own choosing’’ in order to combat the found the Board authorized under and the applicability of such provisions substantial burdens on commerce to them, and a greater degree of Sections 6 and 9 to enact the health care caused by certain employer and labor bargaining unit rule at issue.41 No compliance with the act has been union practices as well as by the effected in situations where employees ‘‘grave and immediate danger’’ was inherent ‘‘inequality of bargaining found to be required prior to the Board are aware of their rights under the law.’’ power between employees * * * and 14 FR 7516, 7516 (Dec. 16, 1949). Given enacting that rule. This ruling was also employers.’’ 29 U.S.C. 151.43 Section 7 consistent with the Supreme Court’s the direct relationship between employees’ timely awareness of their earlier holdings in Thorpe and 42 Mourning, 411 U.S. at 369 (quoting Thorpe, 393 Mourning, in which regulations U.S. at 280–81). rights under the NLRA and the Board’s promulgated under broadly phrased 43 These regulations are entirely compatible with grants of authority needed to be only the national labor policy, as expressed in Section necessary effect of burdening or obstructing 1, ‘‘to eliminate the causes of certain substantial commerce,’’ id., depends on workers’ knowledge of obstructions to the free flow of commerce and to their rights and the protections provided by the 39 See also comment of Americans for Limited mitigate and eliminate these obstructions when NLRB. The Board therefore rejects the argument of Government, citing to AFL–CIO v. Chao, 409 F.3d they have occurred.’’ 29 U.S.C. 151 (fifth the Manufacturer’s Association of South Central 377, 391 (D.C. Cir. 2005) for the same principle. paragraph). As explained below, the Board’s ability Pennsylvania that both the notice-posting rule and 40 319 U.S. 624, 639 (1943). to ‘‘eliminate’’ the causes of labor strife and the Board’s general assertion of rulemaking 41 499 U.S. at 614. depressed wage rates, ‘‘which have the intent or authority are inconsistent with Section 1.

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ability to protect and enforce those provisions of the Act to the complexities of regulate beyond the express substantive rights, this rule is ‘‘necessary’’ for industrial life,’’ and its special competence in directives of the statute, so long as the purposes of Section 6. this field is the justification for the deference statute is not contradicted.’’) (citing Aside from the rule’s manifest accorded its determination. Mourning). If it did, then the Board’s necessity, the notice posting NLRB v. J. Weingarten, Inc., 420 U.S. longstanding rule mandating that requirement fills a Chevron-type gap in 251, 266 (1975) (citations omitted). employers post an election notice three the NLRA’s statutory scheme. Thus, as Consistent with this understanding of days before a representation election discussed, the purpose of Section 1, as the Board’s role, the notice-posting would be subject to challenge on that implemented in Sections 7 and 8, is to regulations represent an attempt to ground. See 29 CFR 103.20; see also encourage the free exercise and ‘‘adapt the Act’’ in light of recent Pannier Corp., Graphics Div. v. NLRB, enforcement of the Act’s provisions, and realities and ‘‘the Board’s cumulative 120 F.3d 603, 606–07 (6th Cir. 1997) fulfillment of that purpose depends on experience.’’ Id. The rule is wholly (rejecting an as-applied challenge to the private initiative of employees and consistent with the aims of the NLRA, § 103.20). Furthermore, under American employers to commence Board and the ‘‘need’’ for it now is heightened Hospital Association, the Board’s representation proceedings pursuant to given the ‘‘changing patterns of exercise of its broad rulemaking Section 9 and Board unfair labor industrial life.’’ Id. authority under Section 6 is presumed practice proceedings pursuant to For all these reasons, this rule is to be authorized unless elsewhere in the Section 10. The effective working of the entitled to deference regardless of how Act there is ‘‘language expressly NLRA’s administrative machinery it is characterized because it is describing an exception from that therefore presupposes that workers and ‘‘reasonably related to the purposes of section or at least referring specifically their employers have knowledge of the the enabling legislation,’’ Thorpe, 393 to the section.’’ 499 U.S. at 613. Section rights afforded by the statute and the U.S. at 280–81, and constitutes a 10 does not refer to the Board’s Section means for their timely enforcement. The ‘‘ ‘reasonable interpretation’ of the 6 authority. statute, however, has no provision with enacted text,’’ Mayo, 131 S. Ct. at 714 Some comments, such as those of the respect to making that knowledge (quoting Chevron, 467 U.S. at 844). Council on Labor Law Equality available, a subject about which the In response to the NPRM, a number of (COLLE), contend that the Board has no statute is completely silent. arguments have been made challenging authority whatsoever to administer the This statutory gap has always been the Board’s statutory authority to NLRA unless a representation petition present but was of less significance in promulgate the notice posting rule. As or unfair labor practice charge has been earlier years when the density of union explained below, the Board does not filed under Sections 9 or 10, organization was greater, since, as is find merit in any of these arguments. respectively. The Board declines to widely recognized, unions have been a 1. Limitations on the Board’s adopt such a narrow view of its own traditional source of information about Rulemaking Authority Implied by authority. Certainly, the Board cannot the NLRA’s provisions. See Lechmere, Sections 9 and 10 of the Act issue certifications or unfair labor Inc. v. NLRB, 502 U.S. 527, 531–32 practice orders via rulemaking Of the comments that address the proceedings. But that is not what this (1992) (reaffirming that the Section 7 Board’s statutory authority to issue this rights of employees interested in union rule does. As explained above, by rule, many express agreement with the promulgating the notice-posting rule, organization depend to some extent on dissenting views of Member Hayes that their having access to unions); Harlan the Board is taking a modest step that were published in the NPRM. Member is ‘‘necessary to carry out the Fuel Co., 8 N.L.R.B. 25, 32 (1938) Hayes criticized the basis for the rule (holding that the rights guaranteed to provisions’’ of the Act, 29 U.S.C. 156, and questioned the Board’s statutory and that also fills a statutory gap left by employees by Section 7 include ‘‘full authority to promulgate and enforce it. freedom to receive aid, advice and Congress in the NLRA. See 75 FR 80415. He specifically Moreover, the argument advanced by information from others concerning referred to Section 10 as an obstacle to [their self-organization] rights’’); cf. COLLE and others fails to appreciate the proposed rule, because it that the Board’s authority to administer Chamber of Commerce of the United ‘‘indicate[d] to [him] that the Board the Act is not strictly limited to those States v. Brown, 554 U.S. 60, 68 (2008) clearly lacks the authority to order means specifically set forth in the (observing that Section 7 ‘‘implies an affirmative notice-posting action in the NLRA. Rather, as the Supreme Court has underlying right to receive absence of an unfair labor practice recognized, the NLRA impliedly information’’). Moreover, as rates of charge filed by an outside party.’’ Id. authorizes the Board to take appropriate unionization have declined, employees Many comments submitted in measures ‘‘to prevent frustration of the are less likely to have experience with response to the NPRM, such as those of purposes of the Act.’’ NLRB v. Nash- collective bargaining or to be in contact the Texas Association for Home Care & Finch Co., 404 U.S. 138, 142 (1971). By with other employees who have had Hospice and those of the Independent way of example, the Supreme Court such experience. The statutory gap is Bakers Association, interpret Section 10 pointed out that its decisions had thus now important to the Board’s to prohibit the Board from ordering any recognized the Board’s implied administration of the NLRA and its role affirmative act that does not address the authority to petition for writs of in enforcing employees’ rights. consequences of an unfair labor prohibition against premature As the Supreme Court has observed, practice. Although this proposition may invocation of the review jurisdiction of The responsibility to adapt the Act to be true when the Board acts through the courts of appeals, see In re NLRB, changing patterns of industrial life is adjudication—the administrative 304 U.S. 486, 496 (1938); to institute entrusted to the Board. * * * It is the function to which Section 10 directly contempt proceedings for violation of province of the Board, not the courts, to applies—it does not perforce apply enforced Board orders, see determine whether or not the ‘‘need’’ [for a Board rule] exists in light of changing when the Board specifies affirmative Amalgamated Util. Workers v. Con. industrial practices and the Board’s requirements via rulemaking under Edison Co., 309 U.S. 261 (1940); and to cumulative experience in dealing with labor- Section 6. See Clifton v. FEC, 114 F.3d file claims in bankruptcy for Board- management relations. For the Board has the 1309, 1312 (1st Cir. 1997) (‘‘Agencies awarded backpay, see Nathanson v. ‘‘special function of applying the general are often allowed through rulemaking to NLRB, 344 U.S. 25 (1952). Relying on

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that precedent in Nash-Finch Co., the employer from telling the truth about not susceptible to a First Amendment Supreme Court concluded that the the impact a union might pose to his challenge.44 Board also had implied authority ‘‘to business.’’ The Board rejects these The Board is equally satisfied that the enjoin state action where [the Board’s] arguments. rule does not violate NLRA Section 8(c), 29 U.S.C. 158(c), which creates a safe federal power preempts the field.’’ 404 As an initial matter, requiring a notice harbor for noncoercive speech in the U.S. at 144. Like these judicially of employee rights to be posted does not unfair labor practice area. Specifically, recognized powers, the notice-posting violate the First Amendment, which Section 8(c) shields from unfair labor requirement that is the subject of this protects the freedom of speech. Indeed, rulemaking has not been specifically practice liability ‘‘[t]he expressing of this rule does not involve employer provided for by Congress. But the cited any views, argument or opinion,’’ speech at all. The government, not the cases demonstrate that Congress need provided that ‘‘such expression contains employer, will produce and supply not expressly list a power for the Board no threat of reprisal or force or promise posters informing employees of their to legitimately exercise it. Indeed, the of benefit.’’ Id. (emphasis added). A notice-posting requirement is not even legal rights. The government has sole government poster containing accurate, an implied power of the Board in the responsibility for the content of those factual information about employees’ same sense as those previously posters, and the poster explicitly states legal rights ‘‘merely states what the law mentioned. Rather, it is the product of that it is an ‘‘official Government requires.’’ Lake Butler, 519 F.2d at 89. the Board’s exercise of express Notice’’; nothing in the poster is For that reason, ‘‘[t]he posting of the rulemaking authority and inherent gap- attributed to the employer. In fact, an notice does not by any stretch of the filling authority, both of which have employer has no obligation beyond imagination reflect one way or the other been delegated to the Board by putting up this government poster. on the views of the employer.’’ Id.45 Congress. These same considerations were present in Lake Butler Apparel Co. v. Secretary 44 The decision of the intermediate state court in 2. The First Amendment and Section of Labor, 519 F.2d 84, 89 (5th Cir. 1975), Smith v. Fair Employment & Housing Commission, 8(c) of the NLRA where the Fifth Circuit rejected as 30 Cal. Rptr. 2d 395 (Cal. Ct. App. 1994), rev’d on other grounds, 913 P.2d 909 (Cal. 1996), lends no A handful of commenters argue that ‘‘nonsensical’’ an employer’s First support to arguments challenging these regulations the notice-posting requirement violates Amendment challenge to the on First Amendment grounds. There, the California the First Amendment to the Occupational Safety and Health Act Court of Appeal held that a landlord’s right to Constitution, Section 8(c) of the NLRA, requirement that it post an ‘‘information freedom of speech was ‘‘implicate[d],’’ id. at 401– 02, by a state fair housing agency’s remedial order or both. For example, the Center on sign’’ similar to the one at issue here. As requiring her to sign, post, and distribute notices National Labor Policy, Inc. maintains in Lake Butler, an employer subject to ‘‘setting out the provisions of [the fair housing that ‘‘compelling an employer to post its the Board’s rule retains the right to statute], the outcome of th[e] case, and the property with a Notice that asserts the statement that [she] practices equal housing ‘‘differ with the wisdom of * * * this opportunity.’’ 913 P.2d at 914. The Smith case is statutory ‘rights’ and employer requirement even to the point * * * of not persuasive here because the notice at issue in obligations, runs counter to challenging its validity. * * * But the Smith would not merely have set forth the rights constitutional views long protected by First Amendment which gives him the of prospective buyers or renters but also would the Supreme Court.’’ The Center also have contained a signed statement from the full right to contest validity to the bitter landlord which would have given the false argues that the ‘‘proposed poster would end cannot justify his refusal to post a appearance that she agreed with the state’s fair impede the employer’s statutory right to notice * * * thought to be essential.’’ housing ‘‘concepts and rules,’’ despite her religious express itself on its own property.’’ Id.; see also Stockwell Mfg. Co. v. Usery, beliefs to the contrary. 30 Cal. Rptr. 2d at 401. That Along these same lines, the National feature of the case has no parallel here. Here, by 536 F.2d 1306, 1309–10 (10th Cir. 1976) contrast, employers are not required to sign the Right to Work Legal Defense (dicta) (rejecting a constitutional informational notice, and as noted, nothing in the Foundation, Inc. and others on whose challenge to a requirement that an poster is attributed to them. The Board further notes behalf it writes contend that ‘‘the employer post a copy of an OSHA that the Smith decision is not authoritative because it was superseded by the California Supreme Board’s proposal for forced speech citation). favoring unionization directly conflicts Court’s grant of review in that case. See 913 P.2d But even if the Board’s notice-posting at 916 n.*. with the First Amendment and 45 requirement is construed to compel The Employers Association of New Jersey is longstanding federal labor policy under therefore off the mark when it argues that the Section 8(c) that employers and unions employer speech, the Supreme Court notice-posting requirement is preempted under the should be able to choose themselves has recognized that governments have principles of Lodge 76, International Ass’n of ‘‘substantial leeway in determining Machinists & Aerospace Workers v. Wisconsin what to say about unionization.’’ These Employment Relations Commission, 427 U.S. 132 concerns were echoed by the National appropriate information disclosure (1976), as an attempt to regulate employer speech Association of Wholesaler-Distributors. requirements for business ‘‘about unionization and collective bargaining.’’ As In addition, two attorneys affiliated with corporations.’’ Pac. Gas & Elec. Co. v. explained above, the employer’s choice whether to Pub. Utils. Comm’n, 475 U.S. 1, 15 n.12 express its own views, arguments, or opinions is Pilchak Cohen & Tice, P.C., which they wholly unaffected by a requirement to post a describe as ‘‘a management-side labor (1985). This discretion is particularly government-provided notice summarizing what the and employment law firm,’’ argue that wide when the government requires law requires. Indeed, consistent with both the notice-posting requirement information disclosures relevant to the Machinists and the policy of Section 8(c) ‘‘‘to ‘‘tramples upon employers’ Free Speech employment relationship. Thus, as the encourage free debate on issues dividing labor and D.C. Circuit has observed, ‘‘an management,’’’ Brown, 554 U.S. at 67 (quoting Linn rights by regulating the content of v. United Plant Guard Workers, Local 114, 383 U.S. information that employers are required employer’s right to silence is sharply 53, 62 (1966)), employers remain free under this to tell employees and by compelling constrained in the labor context, and rule—as they have in the past—to express them to post the Notice containing pro- leaves it subject to a variety of burdens noncoercive views regarding the exercise of these to post notices of rights and risks.’’ rights as well as others. See, e.g., United Techs. union NLRA rights, when it is almost Corp., 274 N.L.R.B. 609, 609, 618–20, 624–26 assuredly not the employers’ prerogative UAW-Labor Employment & Training (1985), enforced sub nom. NLRB v. Pratt & Whitney to do so.’’ The Independent Association Corp. v. Chao, 325 F.3d 360, 365 (D.C. Air Craft Div.v., United Techs. Corp., 789 F.2d 121 of Bakers goes further and characterizes Cir. 2003) (UAW v. Chao) (citing Lake (2d Cir. 1986); Warrensburg Bd. & Paper Corp., 143 Butler, 519 F.2d at 89). Accordingly, the N.L.R.B. 398, 398–99 (1963), enforced, 340 F.2d 920 the regulation as an unconstitutional (2d Cir. 1965). For this reason, the Board finds it ‘‘gag order’’ that ‘‘prohibits the Board’s notice-posting requirement is unnecessary to adopt the proposal made by the

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But even if the new rule is understood plummeted to approximately 8 percent. evidence that Congress had considered to compel employer speech, Section 8(c) As a result, fewer employees today have and rejected inserting such a ‘‘‘merely implements the First direct, everyday access to an important requirement into the Act. However, Amendment.’’’ Brown, 554 U.S. at 67 source of information regarding NLRA nothing in the legislative history of the (quoting NLRB v. Gissel Packing Co., rights and the Board’s ability to enforce Act so indicates. Indeed, there is not the 395 U.S. 575, 617 (1969)). Thus, if a those rights. slightest hint that the omission of a First Amendment challenge to the rule As noted above, ‘‘[t]he responsibility notice-posting requirement was the must fail, so too must a challenge based to adapt the Act to changing patterns of product of legislative compromise and on Section 8(c). Such was the holding industrial life is entrusted to the Board.’’ therefore implies congressional rejection of the D.C. Circuit in UAW v. Chao. J. Weingarten, Inc., 420 U.S. at 266. It of the idea. Cf. Ind. Prot. & Advocacy There, the court was presented with a would therefore be an abdication of that Servs. v. Ind. Family & Soc. Servs. preemption argument, grounded in responsibility for the Board to decline to Admin., 603 F.3d 365, 384–85 (7th Cir. Section 8(c), challenging a Federal adopt this rule simply because of its 2010) (en banc) (Posner, J., concurring) procurement regulation that required recent vintage. Accordingly, the Board (inferring a private right of action from contractors to post a notice informing finds such arguments unpersuasive. statutory silence in a case where such their employees of certain NLRA rights. 4. Comparison With Other Statutes That silence was not the product of The D.C. Circuit interpreted Section 8(c) Contain Notice-Posting Requirements ‘‘legislative compromise’’). For these as coextensive with the scope of free reasons, the Board rejects the Motor and speech rights protected by the First Many comments note, as the Board Equipment Manufacturers Association’s Amendment and upheld the did in the NPRM, that several other unsupported suggestion that there has procurement regulation in light of well- labor and employment statutes enacted been an affirmative ‘‘legislative established free speech jurisprudence in by Congress contain express notice- determination not to include a posting the labor context. See 325 F.3d at 365. posting provisions. See 75 FR 80411 requirement by employers that have not (listing such statutes). Though a few violated the Act.’’ 3. Lack of Contemporaneity With the such comments, such as those of the A number of comments point out that Enactment of the NLRA International Brotherhood of Teamsters, Congress included a general notice- Several comments attack the notice- applaud the Board for ‘‘fill[ing] this posting provision in the Railway Labor posting regulation for its lack of glaring and indefensible gap,’’ the bulk Act (RLA), which predates the NLRA. contemporaneity with the enactment of of these comments instead argue that Given the relative proximity of these the NLRA. For example, many the lack of a parallel statutory provision two enactments, some comments regard comments criticize the regulation by in the NLRA negates the existence of the absence of a notice-posting noting that ‘‘this is a new rule Board authority to issue this rule. provision in the NLRA as strong interpreted into the Act 75 years after its The Board notes that inferences evidence that Congress did not intend passage.’’ The Board rejects these gleaned from side-by-side comparisons for there to be one. For reasons just contentions for two reasons. to other statutes have diminished force explained, the Board does not find a First, the Supreme Court has when an agency uses its gap-filling side-by-side comparison with the RLA repeatedly ‘‘instructed that ‘neither authority under Chevron. There are availing. In addition, the Board notes antiquity nor contemporaneity with [a] many possible reasons why Congress that although the NLRA and the RLA statute is a condition of [a regulation’s] did not include an express notice- share several common features, the validity.’’’ Mayo, 131 S. Ct. at 712 posting provision in the NLRA. NLRA was not perfectly modeled after (alterations in original) (quoting Smiley ‘‘Perhaps that body consciously desired the RLA. See Bhd. of R.R. Trainmen v. v. Citibank (S.D.), N.A., 517 U.S. 735, the [agency] to strike the balance at this Chi. River & Ind. R.R. Co., 353 U.S. 30, 740 (1996)); see also Smiley, 517 U.S. at level * * *; perhaps it simply did not 31 n.2 (1957) (‘‘The relationship of labor 740 (deferring to a regulation ‘‘issued consider the question at this level; and and management in the railroad more than 100 years after the perhaps Congress was unable to forge a industry has developed on a pattern enactment’’ of the statutory provision coalition on either side of the question different from other industries. The that the regulation construed). Second, * * *.’’ Chevron, 467 U.S. at 865. But, fundamental premises and principles of the argument fails to consider that much ‘‘[f]or judicial purposes, it matters not the Railway Labor Act are not the same has changed since 1935, the year the which of these things occurred.’’ Id. as those which form the basis of the NLRA was enacted. Unionization rates Indeed, the central premise behind National Labor Relations Act * * *.’’). are one example. As pointed out in the Chevron and its progeny is that agencies Finally, the Board notes that other NPRM and as confirmed by comments should be allowed reasonable latitude to federal departments and agencies have submitted by the Association of fill gaps arising from congressional not understood Congress’s failure to Corporate Counsel’s Employment and silence or ambiguity. Accordingly, ‘‘the include an express provision containing Labor Law Committee, unionization contrast between Congress’s mandate in a notice-posting requirement in a federal rates increased during the early years of one context with its silence in another labor or employment statute as a bar to the Act, peaking at around 35 percent of suggests not a prohibition but simply a such a regulatory requirement. Like the the workforce in the mid-1950s. But decision not to mandate any solution in NLRA, the Fair Labor Standards Act since then, the share of the workforce the second context, i.e., to leave the (FLSA), which was passed in 1938, does represented by labor unions has question to agency discretion.’’ Cheney not contain a provision requiring R.R. Co. v. ICC, 902 F.2d 66, 69 (D.C. employers to post a notice of pertinent Pilchak attorneys to revise the rule to specify that Cir. 1990) (labeling the expressio unius employee rights. Yet the Department of employers ‘‘may post a notice of equal dignity Labor adopted a notice requirement now which advises employees of * * * additional rights est exclusio alterius canon ‘‘an and realities.’’ Alternatively, the Pilchak attorneys especially feeble helper’’ in Chevron codified at 29 CFR 516.4. Furthermore, propose that the Board amend the rule to permit cases). the Board is unaware of any challenge employers to ‘‘alter the Poster and include Arguments contrasting the NLRA with to the Labor Department’s authority to additional rights.’’ Adopting this suggestion would other federal enactments that contain promulgate or enforce the FLSA notice compromise the integrity of the notice as a communication from the government. It, too, is notice-posting requirements might have requirement, which has been in effect therefore rejected. some persuasive force if there were for over 60 years. See 14 FR 7516 (Dec.

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16, 1949), promulgating 29 CFR 516.18, hiring hall agreement did not encourage does the Board without Section 10(c) the predecessor to 29 CFR 516.4. or discourage union membership by authority.’’ The Board rejects this ‘‘discrimination.’’ See id. at 674–75. By argument because it fails to recognize 5. The Teamsters 357 Decision faulting the union for not including in the important substantive difference In response to the NPRM, the U.S. its agreement clauses that the Board’s between the conduct at issue in Chamber of Commerce submitted a Mountain Pacific rule had declared Lechmere, which involved ‘‘ ‘trespassory comment that questions ‘‘how the necessary to prevent ‘‘ ‘unlawful organizational activity’ ’’ by proposal can be said to be consistent encouragement of union membership,’ ’’ nonemployees on the employer’s with’’ the Supreme Court’s decision in id. at 671 (quoting Mountain Pacific grounds, id. at 535 (quoting Sears, Local 357, International Brotherhood of Chapter, 119 NLRB at 897), the Board Roebuck & Co. v. San Diego Dist. Teamsters v. NLRB, 365 U.S. 667 (1961). had attempted to regulate hiring halls in Council of Carpenters, 436 U.S. 180, 205 Specifically, the Chamber accuses the a manner that was facially inconsistent (1978)), and the regulations here which Board of ignoring the Court’s with the discrimination requirement involve nothing more than the admonition in that case warning that embedded in NLRA Section 8(a)(3) and employer’s responsibility to post an ‘‘[w]here * * * Congress has aimed its (b)(2). Accordingly, the Chamber makes official notice of legal rights. sanctions only at specific discriminatory too much of the Court’s statement The Portland Cement Association practices, the Board cannot go farther prohibiting the Board from (PCA) comments that the Board’s failure and establish a broader, more pervasive ‘‘establish[ing] a broader, more to place the three law review articles regulatory scheme.’’ Id. at 675. The pervasive regulatory scheme’’ when that the Board cited to the NPRM 47 in Chamber reads this statement out of ‘‘specific discriminatory practices’’ have the administrative docket is arbitrary context. already been outlawed. Id. at 676. By and capricious. Although the Board To understand why the Board that, the Court simply meant to remind provided the legal citations for these disagrees with the Chamber’s view, the Board that it may not articles, PCA believes that it should not further explanation of Teamsters 357 is administratively amend Section 8(a)(3) have to pay an electronic legal reporting necessary. In that case, the Supreme and (b)(2) to prohibit nondiscriminatory service to access the material. The Board Court rejected the Board’s conclusion activity that might be viewed as has placed these articles in the hard that a union had committed an unfair undesirable because those statutory copy docket, but has not uploaded these labor practice by operating an exclusive sections are clearly aimed only at articles to the electronic docket at hiring hall pursuant to an agreement ‘‘specific discriminatory practices.’’ http://www.regulations.gov, because that contained a nondiscrimination 46 Id. such an action could violate copyright clause but not three additional clauses This rulemaking does not involve laws.48 that the Board had previously declared those provisions of the NLRA that Finally, one comment contends that in its Mountain Pacific decision to be Teamsters 357 addressed. Accordingly, requiring employers to set aside wall necessary to prevent ‘‘ ‘unlawful the Board does not view that case as space for posting the notices violates the encouragement of union membership.’ ’’ controlling the outcome of this Takings Clause of the Fifth Amendment Id. at 671 (quoting Mountain Pacific proceeding. to the U.S. Constitution. The comment Chapter, 119 NLRB 883, 897 (1958)). cites no authority for this proposition, The Court first noted that Congress had 6. Miscellaneous Matters which would seem to invalidate the examined the operation of hiring halls The Center on National Labor Policy, notice-posting requirements under all and had decided not to ban them. Id. at Inc., argues that the Board ‘‘must be 673–74. Next, the Court observed that mindful of the Supreme Court’s other Federal and state workplace NLRA Section 8(a)(3) ‘‘ ‘does not outlaw admonition in Lechmere[, Inc.] v. NLRB, statutes. Accordingly, the Board rejects all encouragement or discouragement of 502 U.S. 527, 534 (1992), that an this contention. In conclusion, the Board believe that membership in labor organizations; only employer possesses First Amendment such as is accomplished by rights to its property.’’ The Board it has fully demonstrated that it discrimination is prohibited.’ ’’ Id. at disagrees that the property rights possesses sufficient statutory authority 674–75 (emphasis added) (quoting discussed in Lechmere emanate from to enact the final rule, and therefore that Radio Officers’ Union v. NLRB, 347 U.S. the First Amendment, see Thunder it is not ‘‘in excess of statutory 17, 42–43 (1954)). Since the hiring hall Basin Coal Co. v. Reich, 510 U.S. 200, jurisdiction’’ or ‘‘short of statutory agreement at issue in Teamsters 357 217 n.21 (1994) (‘‘The right of right’’ within the meaning of the ‘‘specifically provide[d] that there will employers to exclude union organizers Administrative Procedure Act, Section be no discrimination * * * because of from their private property emanates 706(2)(C), 5 U.S.C. 706(2)(C). the presence or absence of union from state common law * * *.’’), and to C. Factual Support for the Rule membership,’’ the Court determined the extent that the Center’s reference to As stated above, the Board found that that the Board was attempting to protect the First Amendment asserts a conflict the notice posting rule is needed against nondiscriminatory between these regulations and because it believes that many employees encouragement of union membership. employers’ right to free speech, that are unaware of their NLRA rights and Id. at 675. This was impermissible argument is rejected for reasons therefore cannot effectively exercise because ‘‘[w]here * * * Congress has explained above. After quoting those rights. The Board based this aimed its sanctions only at specific extensively from Lechmere, the Center finding on several factors: the discriminatory practices, the Board next contends that ‘‘if a union has no comparatively small percentage of cannot go farther and establish a access to company property to private sector employees who are broader, more pervasive regulatory communicate with employees, neither represented by unions and thus have scheme.’’ Id. at 676. ready access to information about the Properly understood, Teamsters 357 46 To the extent that the Board espoused a does not preclude the Board from contrary view of Teamsters 357 in a prior rulemaking proceeding, that view is abandoned. See 47 See NPRM, 75 FR 80411 and fn. 3 above. issuing the notice posting rule. The Union Dues Regulation, 57 FR 43635, 43637–38 48 The Board has also placed the other non-case union had not committed an unfair (Sept. 22, 1992), withdrawn, 61 FR 11167 (Mar. 19, materials cited to in this final rule into the hard labor practice in that case because its 1996). copy docket.

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NLRA; the high percentage of —Membership is down because so many of its public information efforts.59 One immigrants in the labor force, who are the good things unions fought for a long comment urges the Board to conduct a likely to be unfamiliar with workplace time ago have been legislated, at either the study to ascertain current employees’ Federal or State level, and so the need for rights in the United States; studies unions has declined.51 level of NLRA knowledge before indicating that employees and high —[M]ost employees are very aware of their imposing a notice posting requirement. school students about to enter the work rights to unionize and many employees In contrast, as discussed in more force are generally uninformed about choose not to do so because of the rights detail below, numerous comments from labor law; and the absence of a they already have under our federal and individuals, union organizers, attorneys requirement that, except in very limited state laws. representing unions, and worker circumstances, employers or anyone —In fact, one could say that the NLRA and assistance organizations agree with the else inform employees about their other employment laws have succeeded to Board that most employees are the degree that unions are NOT necessary NLRA rights. 75 FR 80411. in today’s work environment.52 unfamiliar with their NLRA rights. A large number of comments contend Immigrant rights organizations state that that the Board failed to demonstrate the A few comments question the Board’s immigrant workers largely do not know necessity of the notice posting rule. belief that immigrant workers are about their rights. unfamiliar with their workplace After careful consideration of the They challenge each of the premises 53 (except the last) underlying the Board’s rights. Several comments argue that comments on both sides of this issue, belief that employees are generally the NLRA has been in effect for nearly the Board believes that many employees 76 years, which is sufficient time for unaware of their NLRA rights. are unaware of their NLRA rights and employees to learn about its Many comments assert that, contrary that a notice posting requirement is a provisions.54 to the Board’s belief, the right to join a reasonable means of promoting greater A number of comments argue that the knowledge among employees. To the union is widely known and understood studies cited in the NPRM are from the by employees. For example: extent that employees’ general level of late 1980s and early 1990s and are knowledge is uncertain, the Board 55 —I believe the majority of employees know therefore out of date (and also, some believes that the potential benefit of a about labor unions and how to form a 56 say, poorly supported). Moreover, notice posting requirement outweighs union, and this poster is unnecessary.49 those studies, whatever their value —[I]t is hard to imagine that there are many the modest cost to employers. Certainly, when published, predate the wide use the Board has been presented with no in the US who do not know that they can of the internet. Now there are many try to join a union. evidence persuasively demonstrating —The fact of the matter is that if a group of online sources of information that knowledge of NLRA rights is employees are upset enough with their concerning unions and union widespread among employees. current management that they feel they organizing, including the Board’s own The comments asserting that the right need union representation, they already Web site. According to these comments, to join a union is widely known cite know what they need to do as a recourse. it should not be necessary to require little, if any, support for that assertion. And if they do not immediately know how employers to post notices of NLRA By contrast, many of the comments to respond, there are plenty of resources for rights because employees who are contending that employees are them.50 interested in learning about unions can —We, the employees, know the unions exist, unfamiliar with their NLRA rights base quickly and easily find such their statements on personal experience * * * If the employees want to know about information online.57 One comment, unions, they should research it themselves. or on extensive experience representing like some others, argues that ‘‘If it is so It is not as though the information is not or otherwise assisting employees. Many readily available. important that employees know their individual workers, commenting on the rights under the NLRB it should be the rule, indicate their personal experiences Some posit that comparatively few government or union whose with the lack of NLRA knowledge and private sector employees are responsibility it is to inform them.’’ 58 concurrent strong support for the rule. represented by unions not because Two comments suggest that the Board For example: employees do not know that they can conduct a mass media informational join unions, but because they have campaign to that end, and one notes that —Even though most of my coworkers and consciously rejected union the Board has in fact recently increased supervisors were highly intelligent people, representation for any number of it is my experience that most workers are almost totally unaware of their rights under reasons (e.g., they do not believe that 51 Comment of Tecton Products. the NLRA. 52 unions can help them; they do not want Comment of Printing and Imaging Association —Knowing that there is a federal agency out of MidAmerica (Printing and Imaging Ass’n). to pay union dues; they deem union there that will protect the rights of working representation unnecessary in light of 53 See, e.g., comment of the Printing and Imaging Ass’n. people to organize is essential to the other workplace protection statutes). For 54 See, e.g., comment of Coalition for a exercise of those rights. example: Democratic Workplace. —I had no idea that I had the right to join 55 See, e.g., comments of Printing Industries of a union, and was often told by my —Is it not just as probable that people clearly employer that I could not do so. * * * I understand unions, and they have decided America and the Portland Cement Association. 56 think employers should be required to post they want no part of them? See, e.g., comments of Cass County Electric Cooperative and Pilchak Cohen & Tice, P.C. notices so that all employees may make an —Labor unions charge approximately 1.3% 57 As one person states, ‘‘The internet has long informed decision about their rights to join of pre-tax earnings for monthly dues. Many ago replaced lunch room bulletin board postings as a union.60 workers, especially those who lost their the means by which employees learn of and —Workers have rights and they have the good paying jobs during this recession and exercise their rights.’’ right to know them.61 have found new jobs at $10.00-$11.00 per 58 Such comments appear to misunderstand that —[T]here is a lot of ignorance among young hour wages, need the dues money by this rule, the Board is indeed seeking to inform workers and veteran workers alike with themselves, in order to support their employees of the provisions of the NLRA, using the regard to knowledge of their right to families. most accessible venues to reach them, their workplaces. Other comments question why this rule does not 59 Comment of Fisher & Phillips, LLP. 49 Comment of the Employers Association. mandate notice posting by governmental employers. 60 Comment of Member, Local 150, Operating 50 Comment of Malt-O-Meal Company (Malt-O- The NLRA does not cover such employers. See Engineers. Meal). Section 2(2), 29 U.S.C. 152(2). 61 Comment of Organizer, IBEW.

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organize. This is not a cure for employer specifically did outreach and member charges and elect unions to serve as intimidation, * * * but it is a step in the education, or unless the employee ran into a their collective-bargaining right direction. problem and came to a steward for representatives. But fear that employees —As an employee at will, I was not aware assistance. * * * may exercise their statutory rights is not of my rights to form a union or any rights Notice to employees, however, could that I may have had under the NLRA.62 provide a starting point for those employees a valid reason for not informing them of —I worked in the construction materials to try to assert rights that they currently have their rights. testing industry for about eight years. on paper but often do not have in practice. Moreover, the NLRA protects the right to join a union and to refrain from doing During that time I had no idea I had the Several immigrant workers’ right to join a union.63 so and the notice so states. In addition, organizations comment on the difficulty —As a working class citizen, I am well aware the NLRA confers and protects other that this population has in of just how rare it is for my fellow workers rights besides the right to join or refrain understanding their rights and accessing to know their rights. For that reason, this from joining unions. Section 7 provides is a rule that is extremely overdue. * * *. the proper help when needed.70 These that employees have the right ‘‘to engage organizations note that laws in the A sampling of comments from labor in other concerted activities for the immigrants’ home countries may be attorneys, workers’ organizations, and purpose of collective bargaining or other quite different from those of the United labor organizations is consistent with mutual aid or protection[.]’’ Such States, and the high barrier that lack of these employees’ comments: protected concerted activities include fluency in English creates in making concertedly complaining or petitioning —It is my experience that upwards of 95% these persons aware of their rights to management concerning their terms of employees have no idea what their under the NLRA.71 These organizations rights are with respect to labor unions.64 and conditions of employment; 74 also contend that because guestworkers —In fact, I have had many employees over concertedly petitioning government in particular can work only for the the years tell me that their employers have concerning matters of mutual interest in employer that requested their visa, they told them that they do not allow unions at the workplace; 75 and concertedly their workplace.65 are extremely vulnerable to labor refusing to work under poor working —Workers today do not know what their violations, and that these employers conditions.76 Few if any of the rights are under the NLRA. As a Union routinely misrepresent the existence of comments contending that employees organizer with more than 20 years of NLRA rights.72 The National Day know about their NLRA rights assert experience, without exception, every Laborers Organizing Network claims worker I encounter thinks that it is that employees are aware of the right to that ‘‘most workers are not aware of perfectly legal for their employer to fire engage in such protected concerted them simply for saying the word union, or their right to organize.’’ One immigrant construction worker, activities in the nonunion setting. By even to speak with other employees at contrast, as shown above, many work about general working conditions. commenting favorably on the proposed comments favoring the rule report that The protections afforded workers to engage rule, explains that she learned English in protected concerted activity around after coming to the United States from nonunion employees are especially workplace issues is unknown to the Poland: ‘‘While working as a testing unlikely to be aware of their NLRA 66 majority of workers today. technician, I had no idea I had the right rights. Although some comments contend —It is the experience of [Service Employees to join a union.’’ She writes: International Union (SEIU) Local 615] that that the articles cited by the Board in many employees are woefully unaware of I think a government written notice posted support of its belief that employees are their rights under the NLRA and that that in the workplace would be a critical source largely unaware of the NLRA rights are lack of knowledge makes employees of information for employees who want to old and inadequately supported,77 they join a union. Especially in this industry vulnerable when they desire to address cite no more recent or better supported their wages and working conditions with where many people like myself are foreign the employers.67 born, there is a language barrier that adds to studies to the contrary. In addition, the —I have participated in hundreds of the difficulty in understanding our legal percentage of the private sector organizing campaigns involving thousands rights. I take government posted notices workforce represented by unions has of employees. In my experience, most seriously and believe other people do as declined from about 12 percent in 1989, people had no idea what their rights were well.73 about the time the articles cited in the to organize or join unions.68 Significantly, the Board received NPRM were published, to 8 percent Some unions also assert that even numerous comments opposing the rule presently; 78 thus, to the extent that lack unionized employees often do not have precisely because the commenters of contact with unions contributed to a clear understanding of the NLRA. One believe that the notice will increase the lack of knowledge of NLRA rights 20 union staff representative writes that level of knowledge about the NLRA on years ago, it probably is even more of a ‘‘there seems to be a disconnect, most of the part of employees. Specifically, they factor today.79 our membership does not know a thing predict that the rule will lead to about NLRA.’’ 69 Another union steward increased unionization and create 74 North Carolina License Plate Agency #18, 346 NLRB 293 (2006), enf’d. 243 F. Appx. 771 (4th Cir. comments similarly: alleged adverse effects on employers 2007) (unpublished). I saw how union members were often and the economy generally. For 75 Eastex, Inc. v. NLRB, above, 437 U.S. at 565– unaware of their rights unless the union example, Baker and Daniels LLP 567. comments that as more employees 76 NLRB v. Washington Aluminum Co., 370 U.S. 9, 14 (1962). 62 Comment of International Staff Representative, become aware of their NLRA rights, they 77 Steelworkers. will file more unfair labor practice See comment of Cass County Electric Cooperative. For example, Professor Morris, author 63 Comment of Member, Local 150, Operating of two of the articles cited by the Board (as ‘‘see Engineers. 70 See e.g., comments of National Immigration also’’) listed no authority to support his assertion 64 Comment of Organizer, Local 150, Operating Law Center and Latino Justice. that employees lack knowledge about the NLRA. Engineers. 71 See, e.g., comment of Friends of Farmworkers, See Charles J. Morris, ‘‘Renaissance at the NLRB,’’ 65 Comment of Strokoff and Cowden. Inc. above at fn. 3; Morris, ‘‘NLRB Protection in the 66 Comment of Organizer, Teamsters, Local 117. 72 Comment of Alliance of Guestworkers for Nonunion Workplace,’’ above at fn. 3. 67 Comment of SEIU Local 615. Dignity. 78 See DeChiara, ‘‘The Right to Know,’’ above at 68 Comment of Financial Secretary, Local 150, 73 Comment of Instructor, Apprenticeship and fn. 1; 75 FR 80411 fn. 4. Operating Engineers. Skill Improvement Program, Local 150, Operating 79 The Printing and Imaging Association 69 Comment of Staff Representative, Steelworkers. Engineers. discussed these declining rates of unionization, and

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In support of their contention that —We are not anti-union; but feel as will not be effective in informing NLRA rights are widely known among Americans, we must protect our right not employees of their rights, because to be signatory to a third party in our employees, several comments observe 85 employees will simply ignore the that the Board’s processes for holding business. notices, as the comments contend they —If one desires to be a part of a union, he representation elections and or she is free to apply to those companies ignore other workplace postings. investigating and remedying unfair that operate with that form of ‘‘Posters are an ineffective means of labor practices are invoked tens of relationship.86 educating workers and are rarely read thousands of time a year.80 That is true. —I also believe employees already have such by employees.’’ 90 Other comments However, the civilian work force notice by understanding they retain the argue that adding one more notice to the includes some 108 million workers right to change employers whenever they many that are already mandated under 87 potentially subject to the NLRA.81 Thus, so choose. other statutes will simply create more the number of employees who invoke These comments reinforce the Board’s ‘‘visual clutter’’ that contributes to the Board’s processes make up only a belief that, in addition to informing employees’ disinclination to pay small percentage of the covered employees of their NLRA rights so that attention to posted notices. As one workforce. Accordingly, the Board does they may better exercise those rights, employer stated, ‘‘My bulletin boards not consider the number of times the posting the notice may have the are filled with required notifications Board’s processes are invoked to be beneficial side effect of informing that nobody reads. In the past 15 years, persuasive evidence that workers employers concerning the NLRA’s not one of our 200 employees has ever generally are aware of their NLRA requirements.88 asked about any of these required rights. As to the contention that information postings. I have never seen anyone ever Finally, remarks in multiple opposing concerning unions is widely available read one of them.’’ 91 Another wrote, comments strongly suggest that the on the internet, including on the Board’s ‘‘Employers are already required to post commenters themselves do not Web site, the Board responds that not all so many notices that these notices have understand the basic provisions of the employees have ready access to the lost any semblance of effectiveness as a NLRA: internet. Moreover, it is reasonable to governmental communication channel.’’ —If my employees want to join a union they assume that an employee who has no To these comments, the Board need to look for a job in a union idea that he or she has a right to join a responds that the experiences of the company.82 union, attempt to organize his commenters is apparently not universal; —[a]nytime one of our independent employer’s workforce, or engage in other comments cited above contend tradesmen would like to join the union other protected concerted activities, that employees are more knowledgeable they are free to apply and be hired by a would be less likely to seek such about their rights under statutes union contractor. information than one who is aware of —If a person so desires to be employed by requiring the posting of notices such rights and wants to learn more summarizing those rights than about a union company, they should take their 89 ass to a union company and apply for a about them. The Board is pleased that their NLRA rights. Moreover, not every union job. it has received a large number of employee has to read workplace notices —Belonging to a union is a privilege and a inquiries at its Web site seeking for those notices to be effective. If only preference—not a right.83 information concerning NLRA rights, one employee of a particular employer —If they don’t like the way I treat them, then but it is under no illusion that that reads the Board’s notice and conveys go get another job. That is what capitalism information will reach more than a is about.84 what he or she has read to the other small fraction of the workforce in the employees, that may be enough to pique foreseeable future. cited Professor Kate Bronfenbrenner’s doctoral their interest in learning more about Several comments assert that, in any their NLRA rights. In addition, the dissertation, ‘‘Seeds of Resurgence: Successful event, requiring the posting of notices Union Strategies for Winning Certification Elections Board is mandating electronic notice to and First Contracts in the 1980s and Beyond,’’ employees on an internet or intranet (available at http://digitalcommons.ilr.cornell.edu/ 85 Comment of Humphrey & Associates, Inc. cgi/viewcontent.cgi?article=1002&context=reports& 86 Comment of Medina Excavating, Inc. site, when the employer customarily sei-redir=1#search=‘‘Kate+Bronfenbrenner, 87 Comment of Olsen Tool & Plastics, Co. communicates with its employees about +Uneasy+terrain:+The+ 88 And as one union official writes: personnel rules or policies in that way, impact+of+capital+mobility+on+ Having been active in labor relations for 30 years in order to reach those who read paper workers,+wages,+and+union’’) to argue that the I can assure you that both employees and employers higher win rates for unions in elections involving notices and those who read electronic are confused about their respective rights under the both immigrant and older workers argued against postings. As for the comment that NLRA. Even union officers often do not understand the need for the proposed rule. their rights. Members and non-members rarely argues that the Board can use public The Board is not addressing the many debated understand their rights. Often labor management service announcements or advertising to causes of the declining rates of private sector disputes arise because one or both sides are mis- unionization in the United States. This rule simply reach employees, the Board believes informed about their rights. Often the employer that it makes much more sense to seek accepts those rates as given, and seeks to increase takes an action it truly believes is within its rights the knowledge of NLRA provisions among those when it is not. to reach directly the persons to whom without readily available sources of reliable Comment of Civil Service Employees Association. the Act applies, in the location where information on these provisions. 89 Thus, the many comments that assert that they are most likely to hear about their 80 See, e.g., comment of Desert Terrace Healthcare employees can just use Internet search engines to Center. other employment rights, the find out about unions (see, e.g., comments of 92 81 workplace. See Bureau of Labor Statistics, Economic News Winseda Corp. Homestead Village, Inc.), Release, Table B–1, ‘‘Employees on nonfarm misapprehend the breadth of the rights of which the payrolls by industry sector and selected industry Board seeks to apprise all employees. As stated 90 Comment of Riverbend Community Mental detail,’’ May 3, 2011 (seasonally adjusted data for above, Section 7 is not merely about the right to join Health. March 2011) http://data.bls.gov/timeseries 91 Comment of Farmers Cooperative Compress. _ _ or refrain from joining a labor organization, but LNS11300000?years option=specific years more broadly protects the right of employees to 92 Printing Industries of America uses election &include_graphs=true&to_year=2010 _ engage in ‘‘concerted activities’’ for the purpose of data to argue that the Labor Department’s notice &from year=1948 (last visited June 6, 2011). ‘‘mutual aid or protection.’’ It is this right that is posting rule for Federal contractors has not been 82 Comment of P & L Fire Protection, Inc. the most misunderstood and simply not subject to effective because the rate of elections has not 83 Comment of OKC Tea Party. an easy Internet search by employees who may have increased. It is unclear whether any meaningful 84 Comment of Montana Records Management, no idea of what terms to use, or even that such a conclusion can be drawn from election data for only LLP. right might be protected at all. Continued

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Some comments argue that the procedures related to allegations of derived from Board and court decisions, Board’s notice posting rule does not go noncompliance and enforcement of the of conduct that violates the NLRA will far enough to effectuate the NLRA. One rule. The discussion below is organized assist employees in understanding their labor attorney argues that the Board in the same manner and explains the rights. 75 FR 80412. should require annual trainings for Board’s reasoning in adopting the Prior to issuing the NPRM, the Board supervisors and captive audience standards and procedures contained in carefully reviewed the content of the meetings where employees are read the regulatory text, including the notice required under the Department of their rights by supervisors and Board Board’s responses to the comments Labor’s final rule, which was modified agents and the employees would have to received. in response to comments from acknowledge receiving those notices.93 Subpart A—Definitions, Requirements numerous sources, and tentatively The same comment suggests banning for Employee Notice, and Exceptions concluded that that notice explains captive audience meetings by From Coverage Definitions employee rights accurately and employers. The comment concludes that effectively without going into excessive the NPRM ‘‘doesn’t go anywhere near A. The Definitions or confusing detail. The Board therefore far enough. It is, however, an important For the most part, the definitions found it unnecessary, for purposes of 94 and worthwhile advancement.’’ proposed in the rule are taken from the proposed rulemaking, to modify the Another comment also suggests that those appearing in Section 2 of the language of the notice in the Department annual, mandatory training classes for NLRA, 29 U.S.C. 152. No comments of Labor’s final rule. Moreover, the 95 employees would be desirable. The were received concerning those Board reasoned that because the notice Board believes that this Rule strikes the definitions, and they are unchanged in of employee rights would be the same proper balance in communicating the final rule. A number of comments under the Board’s proposed rule as necessary information about the NLRA were received concerning the definition under the Department of Labor’s rule, to employees. of other terms appearing in the rule. Federal contractors that have posted the For all the foregoing reasons, the Those comments are addressed below. Department of Labor’s required notice Board is persuaded that many private would have complied with the Board’s B. Requirements for Employee Notice sector employees are unaware of their rule and, so long as that notice is 96 NLRA rights. 1. Content Requirements posted, would not have to post a second III. Summary of Final Rule and The notice contains a summary of notice. Id. Discussion of Related Comments employee rights established under the The proposed notice contained The Board’s rule, which requires NLRA. As explained above, the Board examples of general circumstances that employers subject to the NLRA to post believes that requiring notice of constitute violations of employee rights notices of employee rights under the employee rights is necessary to carry out under the NLRA. Thus, the Board NLRA, will be set forth in Chapter 1, the provisions of the NLRA. proposed a notice that provided Part 104 of Volume 29 of the Code of Accordingly, § 104.202 of the proposed employees with more than a Federal Regulations (CFR). Subpart A of rule requires employers subject to the rudimentary overview of their rights the rule sets out definitions; prescribes NLRA to post and maintain the notice under the NLRA, in a user-friendly the size, form, and content of the in conspicuous places, including all format, while simultaneously not employee notice; and lists the categories places where notices to employees are overwhelming employees with of employers that are not covered by the customarily posted, and to take information that is unnecessary and rule. Subpart B sets out standards and reasonable steps to ensure that the distracting in the limited format of a notices are not altered, defaced, or notice. As explained below, the Board a few months, especially since the number of covered by any other material, or also tentatively agreed with the contractors covered by the Labor Department’s rule otherwise rendered unreadable. Department of Labor that it is is only a small fraction of the number of employers As stated in the NPRM, the Board unnecessary for the notice to include subject to the NLRA. In any event, the Board does not believe that that is the proper criterion by considered the substantive content and specifically the right of employees who which to measure the rule’s effectiveness. The level of detail the notice should contain are not union members and who are purpose of requiring the posting of such notices is regarding NLRA rights. In arriving at the covered by a contractual union-security to inform employees of their rights so that they may content of the notice of employee rights, clause to refuse to pay union dues and exercise them more effectively, not to obtain any particular result such as the filing of more election the Board proposed to adopt the fees for any purpose other than petitions. language of the Department of Labor’s collective bargaining, contract The same comment also cites a couple of final rule requiring Federal contractors administration, or grievance adjustment. textbooks which it asserts are popularly used in to post notices of employees’ NLRA See Communications Workers v. Beck, high schools today to argue that labor history is being taught to today’s students. The Board is rights. 29 CFR part 471. In the NPRM, 487 U.S. 735 (1988). Id. at 80412–80413. unable to assess the truth of that assertion, but the Board explained that it tentatively The Board specifically invited regardless, it is unclear whether students agreed with the Department of Labor comment on the statement of employee necessarily connect this history to their future that neither quoting the statement of rights proposed for inclusion in the rights as employees. 93 Comment of Weinberg, Roger & Rosenfeld. employee rights contained in Section 7 required notice to employees. In 94 Id. of the NLRA nor briefly summarizing particular, the Board requested 95 Comment of Staff Representative, Steelworkers. those rights in the notice would be comment on whether the notice 96 Accordingly, the Board finds it unnecessary to likely to effectively inform employees of contains sufficient information of conduct a study to determine the extent of their rights. Rather, the language of the employee rights under the NLRA; employees’ knowledge of NLRA rights. The Board further observes that even if only 10 percent of notice should include a more detailed whether it effectively conveys that workers were unaware of those rights, that would description of employee rights derived information to employees; and whether still mean that more than 10 million workers lacked from Board and court decisions it achieves the desired balance between knowledge of one of their most basic workplace implementing those rights. The Board providing an overview of employee rights. The Board believes that there is no question that at least a similar percentage of employees are also stated that it saw merit in the rights under the Act and limiting unaware of the rights explained in the notice. In the Department of Labor’s judgment that unnecessary and distracting Board’s view, that justifies issuing the rule. including in the notice examples, again information. Id. at 80413.

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The proposed Appendix to Subpart A NLRA includes the right to refrain from law, which may require frequent included Board contact information and union activity, but claim that this right updates to the notice.103 basic enforcement procedures to enable is given little attention in comparison to Many comments suggest that the employees to learn more about their other rights in the proposed notice. required notice should include only the NLRA rights and how to enforce them. Several comments also argue that the specific rights contained in Section 7 of Thus, the required notice confirmed that proposed notice excludes rights the NLRA or, at most, the rights and unlawful conduct will not be permitted, associated with an anti-union position, obligations stated in employee provided information about the Board including the right to seek advisories on the NLRB’s Web site. The and about filing a charge with the decertification of a bargaining comments favoring a more general Board, and stated that the Board will representative, the right to abstain from notice suggest that the detailed list of prosecute violators of the NLRA. The union membership in ‘‘right-to-work’’ rights far exceeds the ‘‘short and plain’’ notice also indicated that there is a 6- states, and rights associated with the description of rights that the Board has month statute of limitations for filing Supreme Court’s decision in found sufficient to ‘‘clearly and charges with the Board alleging Communications Workers v. Beck.99 effectively inform employees of their violations and provided Board contact Comments also suggest that the notice rights under the Act’’ in unfair labor information. The Board invited should include a warning to employees practice cases.104 See Ishikawa Gasket suggested additions or deletions to these that unionizing will result in a loss of America, Inc., 337 NLRB 175 (2001), provisions that would improve the the right to negotiate directly with their enfd. 354 F.3d 534 (6th Cir. 2004). A content of the notice of employee rights. employer.100 Many of these comments comment from Fisher & Phillips LLP Id. argue that a neutral government position argues that, under the Board’s current The content of the proposed notice on unionization would be more remedial practices, only an employer received more comments than any other inclusive of anti-union rights.101 that egregiously violates the Act on single topic in the proposed rule. But of A number of comments address the numerous occasions is required to post the thousands of comments that address issue of complexity, and argue that the such an inclusive list of rights. the content of the notice, the majority Board’s attempt to summarize the law is Finally, a number of comments are either very general, or identical or flawed because the Board’s decisional suggest that the notice should include a nearly identical form letters or law is too complex to condense into a list of employer rights, namely the right 102 ‘‘postcard’’ comments sent in response single workplace notice. Some of the to distribute anti-union literature and to comment initiatives by various comments addressing this issue note the right to discuss the company’s interest groups, including those that NLRA law has been developed over position regarding unions. representing employers, unions, and 75 years, and involves interpretations by In addition to the general comments employee rights organizations. Many both the NLRB and the Federal courts, about the proposed notice, many comments from both individuals and sometimes with conflicting results. The comments offer suggestions for specific organizations offer general support for Chamber of Commerce cites the revisions to individual provisions the content of the proposed notice, ‘‘NLRB’s Basic Guide to the National within the five sections of the proposed stating that employee awareness of basic Labor Relations Act: General Principles notice: the introduction, the statement legal rights will promote a fair and just of Law Under the Statute and of affirmative rights, the examples of workplace, improve employee morale, Procedures of the National Labor unlawful conduct, the collective- and foster workforce stability, among Relations Board’’ (Basic Guide to the bargaining provision, and the coverage NLRA) (1997), available at http:// other benefits.97 More specifically, one information. The following discussion www.nlrb.gov/publications/brochures, comment asserts that the proposed presents the comments related to to make their point about legal notice ‘‘contains an accurate, individual provisions of the notice, complexity. In the Foreword to the understandable and balanced followed by the Board’s decisions Basic Guide to the NLRA, the Board’s presentation of rights.’’ 98 The United regarding the content of the final notice General Counsel states that ‘‘[a]ny effort Transportation Union contends that the made in response to those comments. to state basic principles of law in a ‘‘notice presents an understandable, simple way is a challenging and a. Comments Regarding the Introduction concise and extremely informative unenviable task. This is especially true recitation of workers’ rights, without The introduction to the notice of about labor law, a relatively complex rights in the proposed rule stated: getting bogged down in extraneous field of law.’’ The thrust of these language, incomprehensible legalese or comments about legal complexity was The National Labor Relations Act (NLRA) innumerable caveats and exceptions.’’ that the NLRA is complex, dynamic, guarantees the right of employees to organize Other comments were less supportive and nuanced, and any attempt to and bargain collectively with their employers, and to engage in other protected of the content of the proposed notice summarize it in a workplace notice will and the notice-posting requirement in concerted activity. Employees covered by the result in an oversimplification of the NLRB are protected from certain types of general. A significant number of law and lead to confusion, comments, including those from many employer and union misconduct. This Notice misunderstanding, inconsistencies, and gives you general information about your individuals, employers, and employer some say, heightened labor-management rights, and about the obligations of employers industry and interest groups, argue that antagonism. Moreover, some comments under the NLRA. Contact the National Labor the content of the notice is not balanced, express concern that Board member Relations Board (NLRB), the Federal agency and appears to promote unionization turnover could result in changes to the that investigates and resolves complaints instead of employee freedom of under the NLRA, using the contact information supplied below, if you have any association. In particular, many 99 See comments of Pilchak, Cohen & Tice, comments state that Section 7 of the American Trucking Association, and Electrical and questions about specific rights that may Mechanical Systems Inc. apply in your particular workplace. 97 See comments of the National Immigration Law 100 See, e.g. comment of the Heritage Foundation. Center, Service Employees International Union, and 101 See, e.g., comment of the National Right to 103 See comment of Capital Associated Industries, Weinberg, Roger & Rosenfeld. Work Committee. Inc. and National Association of Manufacturers. 98 Comment of David Fusco, a labor and 102 See, e.g., comment of COLLE, Retail Industry 104 See e.g. comments of COLLE and Coalition for employment attorney. Leaders Association. a Democratic Workplace.

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75 FR 80418–80419 (footnote omitted). Discuss your terms and conditions of suggest including language informing The Board received a few suggestions employment or union organizing with your employees that they can be fired for not for changes to the introduction of the co-workers or a union. paying their union dues. Take action with one or more co-workers The Board rejects those suggestions. notice. The first comment suggests to improve your working conditions by, including language stating that among other means, raising work-related The notice is intended to inform employees are required to contact their complaints directly with your employer or employees of the rights that they have ‘‘executive manager’’ or ‘‘administrative with a government agency, and seeking help under the NLRA and does not include team’’ before contacting the NLRB and from a union. the benefits or consequences of suggests that the NLRB refuse to process Strike and picket, depending on the exercising any of the enumerated rights. employees’ complaints until the purpose or means of the strike or the Adding the consequences of one right picketing. employees first raise the issue with his would require revising the entire notice Choose not to do any of these activities, to include potential consequences— or her ‘‘management team.’’ The second including joining or remaining a member of comment, from COLLE, urges the Board a union. both positive and negative—of all the protected rights. For example, the notice to add language in the introduction 75 FR 80419. alerting employees that they also have would need to include the The majority of comments addressing the right to refrain from engaging in consequences of refraining from joining the affirmative rights section were union activity. The comment suggests a union, such as not being permitted to general and did not specifically address that by not including the right to refrain vote on contract ratifications or attend the language of the individual from union activity in the introduction, union membership meetings. The provisions. Generally, labor the Board is showing a bias toward necessary additions to the notice would organizations and employee advocate create a notice that is not a concise list union organizing. The comment argues groups favor the Board’s language. A that a more neutral notice would of rights, but more likely a pamphlet- comment from the United Food and sized list of rights and explanations. In include both the right to engage and not Commercial Workers International engage in union activity at the addition, the consequences of Union asserts that the approach unionization are unique to each beginning of the document, rather than ‘‘achieves an appropriate balance wait to first mention the right to refrain unionized workplace, so it would be between providing sufficiently clear impossible to include a list of general in the affirmative rights section. information about employee’s basic The Board does not agree with the consequences that could apply statutory rights and limiting proposal that employees be required to uniformly to all unionized workplaces. unnecessary and confusing information contact management officials as a If employees have questions about the about peripheral rights.’’ On the other prerequisite to contacting the Board. implications of any of their rights, they hand, comments from employer groups Such a procedural requirement is not can contact an NLRB regional office. do not favor the Board’s language. More Assisted Living Federation of America contemplated in the NLRA and could specifically, employer groups argue that (ALFA) suggests that the affirmative discourage employees from exercising the notice is biased toward union rights section should be revised to or vindicating their rights. The Board agrees, however, that the organizing. Generally, the comments reflect the anti-union position. For example, rather than the current introduction should include both the argue that the right to refrain from provision that states that employees rights to engage in union and other engaging in union activity should have have a right to ‘‘[o]rganize a union to concerted activity and the right to a more prominent place on the notice, negotiate with your employer refrain from doing so. The Board rather than being the last of the rights concerning your wages, hours, and other believes that adding the right to refrain listed on the poster. Many of these terms and conditions of employment,’’ to the introduction will aid in the comments contend that the notice the comment suggests the following Board’s approach to present a balanced should include the right not to engage provision: ‘‘you have the right to and neutral statement of rights. in specific union-related activities. Other comments about the notice’s organize with other employees in Accordingly, the first sentence in the statement of affirmative rights are opposition to a particular union or introduction to the notice in the final directed at individual provisions of the unions.’’ And ‘‘you have the right to: rule will state: notice. A discussion of those comments refuse to form, join, or assist a union, The National Labor Relations Act (NLRA) is set out in more detail below. including the right to refuse to sign a guarantees the right of employees to organize union card, attend a union meeting or i. The Right To Organize and the Right and bargain collectively with their supply a union with information employers, and to engage in other protected To Form, Join and Assist a Union concerted activity or to refrain from engaging concerning you, your co-worker or your in any of the above activity. A few comments generally state that job,’’ rather than ‘‘[you have the right to] the notice should include the [f]orm, join or assist a union.’’ The b. Comments Regarding Affirmative consequences of exercising the right to Board disagrees. The Board’s proposed Statement of Rights organize, join or form a union.105 For notice language reflects the language of example, several comments argue that the NLRA itself, which specifically The proposed notice contains the employees should be informed that if following statement of affirmative grants affirmative rights, including they join a union they give up the right nearly all of those listed in the notice. rights: Under the NLRA, you have the to deal directly with their employers. right to: Also, the notice, like the NLRA, states Another comment argues that that employees have the right to refrain Organize a union to negotiate with your employees should be informed of the from engaging in all of the listed employer concerning your wages, hours, and cost of organizing a union, including the activities. The Board therefore sees no other terms and conditions of employment. cost of dues and the potential for the Form, join or assist a union. need to recast the notice to further Bargain collectively through company to shut down because of emphasize the right to oppose unions. increased labor costs associated with a representatives of employees’ own choosing ii. The Right To Bargain Collectively for a contract with your employer setting unionized workforce. Other comments your wages, benefits, hours, and other Two comments suggest that the working conditions. 105 See, e.g., comment of Pilchak Cohen & Tice. collective-bargaining provision is

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misleading and vague. The first organizing with your co-workers or a The Board disagrees. By necessity, an comment, from COLLE, argues that the union.’’ 11x17-inch notice cannot contain an provision is misleading because it fails The Board agrees that adding the exhaustive list of limitations on and to acknowledge that an employer does suggested language would clarify the exceptions to the rights to strike and not have an obligation under the NLRA provision. The list of affirmative rights picket, as suggested by employers. to consent to the establishment of a uses the terms ‘‘wages, hours, and other However, because exercising the right to collective-bargaining agreement, but terms and conditions of employment’’ to strike can significantly affect the instead only has the statutory duty to describe what unions may negotiate. livelihood of employees, the Board ‘‘meet at reasonable times and confer in The notice then uses the terms ‘‘wages, considers it important to alert good faith with respect to wages, hours, benefits, hours, and other working employees that there are some and other terms and conditions of conditions’’ to describe the right to limitations to exercising this right. The employment.’’ 29 U.S.C. 158(d). The bargain collectively for a contract. Those Board is satisfied that the general comment also argues that the failure to statements make it clear that ‘‘terms and caveat, ‘‘depending on the purpose or reach an agreement is not per se conditions of employment’’ includes means of the strike or the picketing,’’ unlawful, and the finding of an unfair wages and benefits. But then together with the instruction to contact labor practice depends on whether the immediately following those two the NLRB with specific questions about parties engaged in good-faith bargaining. statements, the notice states that the application of rights in certain This comment suggests that the notice employees may discuss ‘‘terms and situations, provides sufficient guidance should instead note that the NLRA conditions of employment,’’ but does to employees about the exercise of their requires parties to bargain in good faith not include any clarifying language. In rights while still staying within the but does not compel agreement or the order, to create a more uniform notice constraints set by a necessarily brief making of concessions, and that, in and clarify the extent to which employee notice. some instances, a bargaining impasse employees may discuss their terms and v. The Right To Refrain From Union or will result, permitting the parties to conditions of employment the final Other Protected Concerted Activity exercise their economic weapons, such notice will read, ‘‘Under the NLRA, you All the comments that discuss the as strikes or lockouts. The second have a right to: Discuss your wages and comment, made generally by more than right to refrain from engaging in union benefits and other terms and conditions activity criticize what they contend to a few organizations and individuals, of employment or union organizing with suggests that the notice add a statement be its lack of prominence. ALFA accuses your co-workers or a union.’’ the Board of ‘‘burying’’ the provision by indicating that employers and unions placing it last, below the other rights to have an obligation to bargain in good iv. The Right To Strike and Picket engage in union and other concerted faith. The notice’s reference to the right to activity. The U.S. Chamber of The Board finds it unnecessary to add strike and picket received a few Commerce suggests that the notice the suggested amplifications. For one comments from law firms and other include ‘‘or not’’ after each of the thing, the notice does state that organizations representing employers’ enumerated rights. For example, ‘‘you employers and unions have a duty to interests. The comments suggest that the have the right to: form join or assist a bargain in good faith, ‘‘in a genuine provision is flawed because of the union, or not.’’ (Emphasis added.) Other effort to reach a written, binding absence of further limitations, suggested revisions to amplify the agreement setting your terms and exceptions, and distinctions.106 prominence of the provision include conditions of employment.’’ In the Generally, the comments argue that not stating that employees have the right to Board’s view, the statement that the all strikes and pickets are protected. refrain from protected, concerted parties must make a ‘‘genuine effort’’ to COLLE argues that the notice should activities and/or union activities; stating reach agreement necessarily implies that inform employees of the limitations of that employees’ right to refrain includes they are not, in the end, required to strikes encompassed by ‘‘depending on the right to actively oppose reach one. The Board deems the notice the purpose or means of the strike or unionization, to not sign union language to be adequate on this point. pickets’’—for example, whether the authorization cards, to request a secret Finally, for the reasons already strike is for recognition or bargaining, ballot election, to not be a member of a discussed, the Board rejects the whether the strike has a secondary union or pay dues or fees (addressed contention that the notice should purpose, whether picketing involves a further below), or to decertify a union discuss the implications or reserved gate, whether the strike is a sit- (also addressed below); and stating that consequences of unsuccessful down or minority strike, whether the employees have the right to be fairly bargaining. conduct is a slowdown and not a full represented even if not a member of the iii. The Right To Discuss With Co- withholding of work, whether the strike union. One employer suggests that if the Workers or Union is partial or intermittent, whether the notice retains its current emphasis strike involves violence, and whether favoring union activity and disfavoring A comment from the National the strike is an unfair labor practice the freedom to refrain from such Immigration Law Center suggests that strike or an economic strike. ALFA activity, employers will need to post the use of the phrase ‘‘terms and argues that employees should be their own notices that emphasize and conditions of employment’’ is unclear informed that if the employer is a elaborate on the right to refrain. especially to employees who are healthcare institution, ‘‘employees do The Board received at least four unaware of their rights under the NLRA. not have the right to participate in a comments that argue that the notice, as The comment recommends that, in union-initiated strike or picket unless written, may make employees believe order to clarify, the Board add the the union has provided the employer that the employer is encouraging phrase ‘‘including wages and benefits.’’ and federal and state mediation agencies unionization. Two of those comments The suggested language would read, with the required 10 days notice.’’ suggest that an employer is protected ‘‘you have the right to: discuss your from compelled speech by Section 8(c) terms and conditions of employment, 106 See comments of ALFA, Carrollton Health and of the NLRA. (The Board has already including wages and benefits, or union Rehabilitation Center, and COLLE. rejected the latter argument; see section

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II, subsection B, ‘‘Statutory Authority,’’ states that it is from the government. some rights covered by the NLRA such above.) Second, in light of the other workplace as ‘‘the right to sign or refuse to sign an The contention that the right to notice employees are accustomed to authorization card,’’ ‘‘the right to refrain from engaging in union activity seeing, employees will understand that discuss the advantages and is ‘‘buried’’ in the list of other the notice is a communication to disadvantages of union representation affirmative rights or that the Board is workers from the government, not from or membership with the employer,’’ and biased in favor of unionization because the employer. Finally, as discussed ‘‘the right to receive information from of the choice of placement is without above, NLRA Section 8(c) protects the employer regarding the advantages merit. The list of rights in the proposed employers’ right to express any ‘‘views, and disadvantages of union notice is patterned after the list of rights argument, or opinion’’ ‘‘if such representation.’’ in Section 7 of the NLRA, 29 U.S.C. 157. expression contains no threat of reprisal The Board has determined that the Section 7 lists the right to refrain last, or force or promise of benefit.’’ The rule inclusion of these additional items is after stating several other affirmative does not affect this right. Therefore, if unnecessary. As discussed above, the rights before it. In addition, the Board’s an employer is concerned that NLRA itself contains only a general remedial notices list the right to refrain employees will get the wrong statement that employees have the right last. See Ishikawa Gasket America, Inc., impression, it may legally express its not to participate in union and/or other above. So does the Board’s Notice of opinion regarding unionization as long protected concerted activities. Section Election. In addition, the notice as it does so in a noncoercive manner. 19 does specifically set forth the right of required by this rule states that it is Critics of the notice contend that the certain religious objectors to pay the illegal for an employer to take adverse notice should contain a number of equivalent of union dues to a tax- action against an employee ‘‘because additional rights and also explanations exempt charity; however, this right is [the employee] choose[s] not to engage of when and how an employee may opt implicated only when an employer and in any such [union-related] activity.’’ out of paying union dues. Thus, most union have entered into a union- The Board has revised the introduction employer groups argue that the notice security arrangement. Because the of the notice to include the right to should contain a statement regarding notice does not mention or explain such refrain—this addition further highlights the right to decertify a union. A number arrangements, the Board finds no reason an employee’s right to refrain from of those comments state that the notice to list this narrow exception to union- union activity. Finally, the Board should provide detailed guidance on the security requirements. In sum, the believes that people understand a right process for decertifying a union. Others Board is not persuaded that the notice as different from an obligation and thus suggest that the notice should contain needs to expand further on the right to will, for example, understand that the instructions for deauthorizing a union refrain by including a list of specific right to organize a union includes the security clause. A majority of employers ways in which employees can elect not right not to do so. Accordingly, the and individuals who filed comments on to participate or opt out of paying union Board concludes that the notice the content of the notice urge the Board dues. Employees who desire more sufficiently addresses the right to refrain to include a notice of employee rights information regarding the right not to among the list of statutory rights. In under Communications Workers v. participate can contact the Board. addressing the numerous comments Beck. Baker & McKenzie suggests The Board does not believe that questioning the Board’s neutrality, the adding a provision informing employees further explication of this point is Board points out that in Section 1 of the that for religious purposes an employee necessary. However, because so many NLRA, Congress declared that it is the may opt out of paying dues to a comments argue that the notice should policy of the United States to mitigate union.107 A few comments also suggest include the right to decertify a union or eliminate obstructions to the free that the notice add any rights that and rights under Communication flow of commerce ‘‘by encouraging the employees may have in ‘‘right-to-work’’ Workers v. Beck, the Board has decided practice and procedure of collective states. As indicated previously, to explain specifically why it disagrees bargaining and by protecting the numerous comments suggest the with each contention. exercise by workers of full freedom of inclusion of other rights of employees Concerning the right to decertify, the association, self-organization, and who do not desire union representation. notice states that employees have the designation of representatives of their Baker & McKenzie suggests a list of 26 right not to engage in union activity, own choosing, for the purpose of additional affirmative rights, most of ‘‘including joining or remaining a negotiating the terms and conditions of which only affect employees in a member of a union.’’ Moreover, the their employment or other mutual aid or unionized setting and are derived from notice does not mention the right to protection.’’ 29 U.S.C. 151. Thus, by its the Labor-Management Reporting and seek Board certification of a union. own terms, the NLRA encourages Disclosure Act, the Labor-Management Indeed, contrary to the numerous collective bargaining and the exercise of Relations Act, or other Federal labor comments suggesting that the proposed the other affirmative rights guaranteed statutes enforced by the Department of notice is a ‘‘roadmap’’ for union by the statute. In doing so, however, the Labor. The proposed list also includes organizing, the notice does not even NLRA seeks to ensure employee choice mention the right to petition for a union both to participate in union or other 107 NLRA Section 19 provides that ‘‘Any representation election, possibly leading protected concerted activity and to employee who is a member of and adheres to to union certification; rather, it merely established and traditional tenets or teachings of a states that employees have the right to refrain from doing so. bona fide religion, body, or sect which has Turning to the issues of whether the historically held conscientious objections to joining ‘‘organize a union’’ and ‘‘form, join or notice creates the impression that the or financially supporting labor organizations shall assist a union.’’ The notice does not give employer is encouraging unionization not be required to join or financially support any any further instructions on how an labor organization as a condition of employment; and whether an employer can be except that such employee may be required in a employee can exercise those rights. compelled to post the notice which contract between such employee’s employer and a Similarly, the notice states that contains information the employer labor organization in lieu of periodic dues and employees may choose not to remain a would otherwise not share with initiation fees, to pay sums equal to such dues and member of a union without further initiation fees to a nonreligious, nonlabor employees, the Board disagrees with organization charitable fund exempt from instructions on how to exercise that both arguments. First, the notice clearly taxation[.]’’ 29 U.S.C. 169. right. To include instructions for

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exercising one right and not the other agreement,’’ and the ‘‘right to nominate address certain rights of employers. The would upset the balanced recitation of candidates, to vote in elections of the notice is intended to inform employees rights. If employees have questions labor organization, to attend of their rights, not those of their concerning how they can exercise their membership meetings, and to employers. rights, the notice encourages them to participate in the deliberations and For all the foregoing reasons, the contact the Board. voting upon business properly before Board finds it unnecessary to modify the The Board has also determined that the meeting.’’ Those rights are not found section of the notice summarizing the addition of Beck rights in the final in the NLRA, but instead arise from employees’ NLRA rights. notice is unnecessary. Those rights other Federal labor laws not c. The Examples of Unlawful Employer apply only to employees who are administered by the NLRB. See Labor- Conduct in the Notice represented by unions under collective- Management Reporting and Disclosure bargaining agreements containing Act of 1959, 29 U.S.C. 401 et seq The proposed notice contained the union-security provisions. As stated in (LMRDA). The Board finds that it would following examples of unlawful the NPRM, unions that seek to obligate be inappropriate to include those conduct: employees to pay dues and fees under additional rights in a notice informing Under the NLRA, it is illegal for your those provisions are required to inform employees of their rights under the employer to: those employees of their Beck rights. NLRA. Prohibit you from soliciting for a union See California Saw & Knife Works, vi. Other Comments during non-work time, such as before or after above, 320 NLRB at 233. See 75 FR at work or during break times; or from 80412–80413. The Board was presented The Board has also considered, but distributing union literature during non-work with no evidence during this rejected, the contention that the notice time, in non-work areas, such as parking lots rulemaking that suggests that unions are contain simply a ‘‘short and plain’’ or break rooms. not generally complying with their description of rights such as that used Question you about your union support or notice obligations. In addition, the in remedial notices. See Ishikawa activities in a manner that discourages you Notice of Election, which is posted days Gasket America, Inc., above. The two from engaging in that activity. notices have different purposes: one Fire, demote, or transfer you, or reduce before employees vote on whether to be your hours or change your shift, or otherwise represented by a union, contains an looks back; the other, forward. As take adverse action against you, or threaten explanation of Beck rights. Moreover, as explained in the NPRM, the principal to take any of these actions, because you join the Board stated in the NPRM, only purpose of a remedial notice is to or support a union, or because you engage in about 8 percent of all private sector inform employees of unlawful conduct concerted activity for mutual aid and employees are represented by unions, that has taken place and what is being protection, or because you choose not to and by no means are all of them subject done to remedy that conduct. engage in any such activity. to union-security clauses. Accordingly, Accordingly, although a remedial notice Threaten to close your workplace if the number of employees to whom Beck contains only a brief summary of NLRA workers choose a union to represent them. applies is significantly smaller than the rights, it also contains examples of Promise or grant promotions, pay raises, or unlawful actions that have been other benefits to discourage or encourage number of employees in the private union support. sector covered by the NLRA. Id. at committed. To the extent that such a Prohibit you from wearing union hats, 80413. Indeed, in the ‘‘right-to-work’’ notice generally increases employees’ buttons, t-shirts, and pins in the workplace states, where union-security clauses are awareness of their rights, the unlawful except under special circumstances. prohibited, no employees are covered by conduct detailed adds to that awareness. Spy on or videotape peaceful union union security clauses, with the The proposed notice, by contrast, is a activities and gatherings or pretend to do so. possible exception of employees who notice intended to make employees 75 FR 80419. work in a Federal enclave where state aware of their NLRA rights generally. It The Board received limited comments laws do not apply. Accordingly, because normally will not be posted against a on six of the seven examples of Beck does not apply to the background of already-committed unfair unlawful employer conduct. As a overwhelming majority of employees in labor practices; it therefore needs to general matter, some comments contend today’s private sector workplace, and contain a summary both of NLRA rights that the number of examples of because unions already are obliged to and examples of unlawful conduct in employer misconduct is inform the employees to whom it does order to inform employees effectively of disproportionate compared to the apply of their Beck rights, the Board is the extent of their NLRA rights and of examples of union misconduct.108 Most not including Beck notification in the the availability of remedies for of the comments refer to the number of final notice. violations of those rights. Moreover, as paragraphs devoted to illegal employer The Board also disagrees with the the Board explained in the NPRM, the conduct (7) and the number of comment from Baker & McKenzie general notice of rights posted in the paragraphs devoted to illegal union contending that an exhaustive list of pre-election notice is sufficient because conduct (5). Several comments indicate additional rights should be included in at least one union along with the that when one compares the employer the notice. In addition to the reasons employer is on the scene to enlighten misconduct listed in Section 8(a) of the discussed above, the Board finds that it employees of their rights under the NLRA with union misconduct listed in would not be appropriate to include NLRA. 75 FR 80412 fn.19. Section 8(b), no such imbalance appears those rights, most of which are rights of The fundamental rights described in in the text of the statute. Several ` union members vis-a-vis their unions. the notice are well established and have comments provide additional examples For example, the comment suggests been unchanged for much of the Board’s of union misconduct that they say including the ‘‘right for each union history. Accordingly, the Board does not should be included. member to insist that his/her dues and share the concern expressed in some As with the notice’s statement of initiation fees not be increased * * * comments that a new notice will have affirmative rights, some of the except by a majority vote by secret to be posted each time the composition ballot * * *,’’ the ‘‘right of each of the Board changes. 108 See, e.g., comments of COLLE, Baker & employee in a bargaining unit to receive Finally, the Board rejects the McKenzie, National Association of Manufacturers, a copy of the collective bargaining contention that the notice should and American Trucking Association.

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individual provisions in this section of establishments. One comment, in provision. Accordingly, the final notice the notice received numerous comments particular, suggests the notice should will state that it is illegal for an and suggestions for improvement. The advise healthcare employees that they employer to ‘‘prohibit you from talking vast majority of the comments about the do not enjoy a protected right to solicit about or soliciting for a union during specific provisions are from in immediate patient care areas or non-work time, such as before or after representatives of employers. Those where their activity might disturb work or during break times; or from comments generally contend that the patients. See Beth Israel Hosp. v. NLRB, distributing union literature during non- provisions are overgeneralizations and 437 U.S. 483 (1978). The comment work time, in non-work areas, such as do not articulate the legal standard for proposes to include a qualification that parking lots or break rooms.’’ evaluating allegations of unlawful a hospital or other health care employer conduct or indicate factual scenarios in may prohibit all solicitation in ii. Questioning Employees About Union which certain employer conduct may be immediate patient care areas or outside Activity lawful. those areas when necessary to avoid The Board received one comment After reviewing all of the comments, disrupting health care operations or concerning this provision, suggesting the Board has decided to revise one of disturbing patients. Another comment that it was confusing. The Board the examples of unlawful employer suggests that the law in this area is so believes the existing language is conduct contained in the NPRM. The complex that no meaningful but sufficiently clear. Board concludes that the other succinct provision can be constructed, iii. Taking Adverse Action Against provisions, as proposed, are accurate and therefore recommends deleting it Employees for Engaging in Union- and informative and, as with the notice entirely. as a whole, strike an appropriate The Board disagrees with those Related Activity balance between being simultaneously comments. The Board appreciates that The Board did not receive any instructive and succinct. under case law, employees’ right to specific comments regarding this Furthermore, the Board sees no reason engage in solicitation and distribution of provision. to add or subtract from the employer or literature is qualified in certain settings iv. Threats To Close union illegal activity to make the two and accordingly that employers may, in sections contain an equal number of some situations, legally prohibit A few comments from employer paragraphs. The comment that argues solicitation or distribution of literature groups criticize the perceived that no imbalance exists in the statute even during employees’ nonworking overgeneralization of this provision. is correct, but the majority of violations time. Given the variety of circumstances Those comments note that, as with under Section 8(b) concern union in which the right to solicit and unlawful interrogation, a threat to close conduct vis-a` -vis employers, not distribute may be limited, however, the is evaluated under a totality of conduct that impairs employees’ rights. Board has determined that limitations circumstances, and that an employer is The notice of rights is intended to on the size and format of the notice permitted to state the effects of summarize employer and union preclude the inclusion of factual unionization on the company so long as violations against employees; situations in which an employer may the statement is based on demonstrably accordingly, there is no need to alter the lawfully limit such activity. As stated probable consequences of unionization. list to include unlawful union activity above, employees may contact the NLRB The Board agrees that the law in this against employers. with specific questions about the general area is complex and that lawfulness of their employers’ rules predictions of plant closure based on i. No-Solicitation and No-Distribution demonstrably probable consequences of Rules governing solicitation and literature distribution. unionization may be lawful. NLRB v. The Board received a few comments Turning to the suggestion that the Gissel Packing Co., 395 U.S. 575, 618 that were critical of the proposed notice notice should be modified to remove the (1969). However, the example in the language stating that an employer reference to union solicitation in favor proposed notice is not such a cannot lawfully prohibit employees of a reference only to the right to engage prediction; rather, the notice states that from ‘‘soliciting for the union during in union talk, the Board agrees in part. it is unlawful for an employer to non-work time or distributing union The Board distinguishes between ‘‘threaten to close your workplace if literature during non-work time, in non- soliciting for a union, which generally workers choose a union to represent work areas.’’ The Service Employees means encouraging a co-worker to them.’’ Such a statement, which clearly International Union comments that participate in supporting a union, and indicates that the employer will close ‘‘solicitation’’ has a narrow meaning and union talk, which generally refers to the plant in retaliation against the involves asking someone to join the discussions about the advantages and employees for choosing union union by signing an authorization card, disadvantages of unionization. Scripps representation, is unlawful. Id. at 618– which is subject to the restrictions Memorial Hosp., 347 NLRB 52 (2006). 619. Thus, the Board finds it suggested in the notice. The comment The right to talk about terms and unnecessary to modify or delete this submits that the notice should state that conditions of employment, which provision of the notice. an employer cannot prohibit employees would necessarily include union talk, is from ‘‘talking’’ about a union. The encompassed more specifically by the v. Promising Benefits comment suggests that ‘‘talking’’ is both ‘‘discussion’’ provision in the The Board received one comment more accurate and is easier for affirmative rights section of the notice. addressing this provision. The comment employees to understand than That provision indicates that employees argues that the provision is ‘‘troubling’’ ‘‘soliciting.’’ have the right to ‘‘discuss your terms because it may be interpreted by a The remaining comments criticize the and conditions of employment or union reader to mean ‘‘anytime their employer provision for failing to note any organizing with your co-workers or a seeks to make such improvements it limitations on employees’ rights to union.’’ In order to maintain discourages union support because solicit and distribute, such as the consistency and clarity throughout the improved wages and benefits may limited rights of off-duty employees, notice, the Board agrees that some reduce employee’s interest in a union.’’ and limitations in retail and health care change is necessary to the solicitation The Board does not think such an

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interpretation would be reasonable, including an entire list of special you to Immigration and Customs because it is contrary to the plain circumstances, concerning both the Enforcement (ICE) or to other law language of the notice. The notice states wearing of union insignia and other enforcement authorities in order to that promises or grants of benefits ‘‘to matters (e.g., striking and picketing, intimidate or retaliate against you because you join or support a union, or because you discourage or encourage union support’’ soliciting and distributing union engage in concerted activity for mutual aid are unlawful. It would make little sense literature), would make it impossible to and protection. to use such language if the Board had summarize NLRA rights on an 11x17 meant that any promises or grants of inch poster. In any event, the Board The Board finds it unnecessary to add benefits were unlawful, rather than only finds that the general caveat that special this statement. The notice states that it those with the unlawful stated circumstances may defeat the is unlawful for an employer to ‘‘fire, purposes. And stating that such application of the general rule, coupled demote, or transfer you, or reduce your promises or grants to * * * encourage with the advice to employees to contact hours or change your shift, or otherwise union support are unlawful necessarily the NLRB with specific questions about take adverse action against you, or implies that not all promises and grants particular issues, achieves the balance threaten to take any of these actions, of benefits discourage union support. required for an employee notice of because you join or support a union, or rights about wearing union insignia in because you engage in concerted vi. Prohibitions on Union Insignia the workplace. activity for mutual aid and protection A few comments suggest that the (emphasis added) [.]’’ Reporting or provision fails to illuminate the vii. Spying or Videotaping threatening to report an employee in the conditions under which ‘‘special Aside from the few comments that manner described in the comment circumstances’’ may exist, including in suggest the provision be stricken, only would be a form of adverse action or hotels or retail establishments where the one comment specifically addresses the threat thereof, and the Board believes insignia may interfere with the content of this provision. The comment that it would be understood as such. employer’s public image, or when the states that the language is confusing d. Examples of Illegal Union Activity insignia is profane or vulgar. Another because a ‘‘supervisor might believe it comment indicates that the provision is would be permissible to photograph or The proposed notice contained the overly broad because it does not reflect tape record a union meeting. Another following examples of unlawful union that a violation depends on the work might say that their video camera conduct: Under the NLRA, it is illegal for a environment and the content of the doesn’t use tape so it’s okay to use.’’ The union or for the union that represents insignia. All the comments addressing Board has determined that no change is you in bargaining with your employer this provision suggest either adding necessary. In the Board’s view, it is more detail to the provision to narrow unlikely that a reasonable supervisor to: its meaning, or striking the provision would construe this notice language Threaten you that you will lose your job entirely. (which also says that it is unlawful to unless you support the union. Again, the Board disagrees. ‘‘spy on’’ employees’ peaceful union Refuse to process a grievance because you Employees have a statutorily protected have criticized union officials or because you activities) as indicating that it is are not a member of the union. right to wear union insignia unless the unlawful to videotape, but lawful to Use or maintain discriminatory standards employer is able to demonstrate tape record or photograph, such or procedures in making job referrals from a ‘‘special circumstances’’ that justify a activities. Supervisors are free to contact hiring hall. prohibition. Republic Aviation Corp. v. the Board if they are unsure whether a Cause or attempt to cause an employer to NLRB, 324 U.S. 793 (1945). For reasons contemplated response to union activity discriminate against you because of your of format, the notice cannot might be unlawful. union-related activity. accommodate those comments Take other adverse action against you suggesting that this provision specify viii. Other Suggested Additions to based on whether you have joined or support the union. cases in which the Board has found Illegal Employer Conduct ‘‘special circumstances,’’ such as where The Heritage Foundation suggests that 75 FR 80419. insignia might interfere with production the Board add language to the notice There were only a few comments or safety; where it conveys a message informing employees that if they choose addressing specific changes to the that is obscene or disparages a to be represented by a union, their language in this section of the notice. company’s product or service; where it employer may not give them raises or ALFA criticizes the provision that states interferes with an employer’s attempts bonuses for good performance without that a union may not ‘‘threaten you that to have its employees project a specific first bargaining with the union. The you will lose your job unless you image to customers; where it hinders comment suggests that the Board add support the union,’’ because the production; where it causes disciplinary the following provision ‘‘if a union proposed language ‘‘fails to capture problems in the plant; where it is in an represents you and your co-workers, Section 8(b)(1)(A)’s broader prohibition immediate patient care areas; or where give you a pay raise or a bonus, or against restraint and coercion.’’ The it would have any other consequences reduce or dock your pay, without comment suggests revising the language that would constitute special negotiating with the union.’’ The Board to state that a union may not ‘‘[r]estrain circumstances under settled precedent. rejects this suggestion for the same or coerce you in the exercise of your NLRB v. Mead Corp., 73 F.3d 74, 79 (6th reason it rejects other comments right to refrain from joining a union by Cir. 1996), enfg. Escanaba Paper Co., contending that the notice should threatening to inflict bodily harm or 314 NLRB 732 (1994). include the consequences of following you to your home and Given the lengthy list of potential unionization in the summary of NLRA refusing to leave unless you sign a special circumstances, the addition of rights, above. union card.’’ That comment also one or two examples of special The National Immigration Law Center suggests adding a provision stating that circumstances might mislead or confuse suggests that the Board add the it is unlawful for a union to ‘‘promise employees into thinking that the right to following to the notice poster: to waive your union initiation fee if you wear union insignia in all other Under the NLRA, it is illegal for your agree to sign a union card before a vote circumstances was absolute. And employer to: Report you or threaten to report is taken.’’

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Another comment argues that the As with the examples of unlawful ‘‘bargain in good faith and in a genuine illegal union conduct portion of the employer activity, the Board concludes effort to reach a written, binding notice fails to fully inform employees of that the provisions concerning unlawful agreement.’’ As discussed above, by their rights as union members.109 In union activity, as proposed, are accurate referring to a ‘‘genuine effort’’ to reach contrast, another comment states a and informative, and, as with the notice agreement, the notice necessarily different position—that the list of illegal as a whole, strike an appropriate implies that the parties are not obliged union conduct ‘‘ostensibly relates only balance between being simultaneously to actually reach one. The duty to to restraint or coercion by a union in a instructive and succinct. Moreover, the bargain in good faith has many unionized environment.’’ 110 The Board finds it unnecessary to include components. See NLRB v. Katz, 369 U.S. comment further states that the Board additional examples of unlawful 736 (1962). And the suggestion that should have included examples of conduct so that the lists of employer employers do not have to agree to ‘‘union restraint or coercion in an and union activity are the same length certain proposals, although correct, does organizing setting’’ but gives no specific because the notice describes the central not account for the line of cases that examples. forms of unlawful conduct engaged in suggest that an important ingredient in ALFA suggests three changes to the by each type of entity. Still less is it good faith bargaining is a willingness to unlawful union activity section. First, necessary to add a host of additional compromise. See Phelps Dodge, 337 rather than say that the union may not examples of unlawful union conduct, NLRB 455 (2002). ‘‘threaten you that you will lose your with the result that the list of such Turning to the suggestion that the job,’’ a more comprehensive statement conduct would be much longer than the notice include language informing would be ‘‘threaten, harass, or coerce list of unlawful employer conduct. In employees of their right to ‘‘sue’’ the you in order to gain your support for the the Board’s view, the list of unlawful union if it fails to represent them fairly, union.’’ The Board agrees, except as union conduct in the proposed notice the Board has concluded that the notice regards ‘‘harass,’’ which is sometimes fairly informs employees of the types of sufficiently apprises employees of their used to characterize almost any sort of conduct that a union is prohibited from right to fair representation and of their union solicitation. Accordingly, the engaging in without providing right to file unfair labor practice charges statement will be modified to read unnecessary or confusing examples. with the Board should a union fail to ‘‘threaten or coerce you in order to gain Employees may contact the NLRB if fulfill that duty. The rights that your support for the union.’’ Second, they believe a union has violated the employees have to sue unions directly the comment suggests changing ‘‘cause NLRA. in court without coming to the Board or attempt to cause an employer to are beyond the scope of this rulemaking. discriminate against you’’ to e. Collective-Bargaining Provision ‘‘discriminate or attempt to discriminate The collective-bargaining provision of f. Coverage Provision against you because you don’t support the NPRM states that ‘‘if you and your In regard to coverage under the NLRA, a union.’’ The Board disagrees, because co-workers select a union to act as your the proposed notice states: the suggested change would shift the collective bargaining representatives, your employer and the union are The National Labor Relations Act covers focus of the provision away from the most private-sector employers. Excluded sort of conduct contemplated in the required to bargain in good faith and in from coverage under the NLRA are public- rule. See NLRA Section 8(b)(2), 29 a genuine effort to reach a written, sector employees, agricultural and domestic U.S.C. 158(b)(2). Third, the comment binding agreement setting your terms workers, independent contractors, workers suggests changing ‘‘take other adverse and conditions of employment. The employed by a parent or spouse, employees action against you based on whether union is required to fairly represent you of air and rail carriers covered by the Railway you have joined or support the union’’ in bargaining and enforcing the Labor Act, and supervisors (although to ‘‘take adverse action against you agreement.’’ 75 FR 80419. supervisors that have been discriminated The Board received only a few against for refusing to violate the NLRA may because you have not joined or do not be covered). 75 FR 80419. support the union.’’ The Board agrees comments on this provision of the and will modify this provision of the notice. Notably, COLLE requests the A comment from the National notice accordingly. inclusion of a limitation on the Immigration Law Center suggests adding Baker & McKenzie urges that a variety provision that employees have the right the following language: ‘‘The NLRA of other examples of unlawful union to bargain collectively, in order to protects the above-enumerated rights of conduct be added to the notice, clarify that the employer’s obligation is all employees, irrespective of their including requiring nonmembers to pay only to bargain in good faith and not immigration status. That protection a fee to receive contract benefits, necessarily to reach an agreement. A extends to employees without work disciplining members for engaging in second comment suggests that the authorization, though certain remedies activity adverse to a union-represented notice inform employees that they have in those circumstances may be limited. grievant, disciplining members for the right to ‘‘sue a union for unfairly Employers cannot threaten you or refusing to engage in unprotected representing the employee in intimidate you on the basis of you activity, engaging in careless grievance bargaining, contract administration, or a immigration status to prevent you from handling, failing to notify employees of discrimination matter.’’ joining or supporting a union, or their Beck rights, requiring employees to The Board has decided that no engaging in concerted activity for agree to dues checkoff instead of direct changes are necessary to the duty to mutual aid and protection.’’ payment, discriminatorily applying bargain paragraph. The Board is The Board has decided not to amend hiring hall rules, and conditioning satisfied that the proposed collective- the coverage provision in the final continued employment on the payment bargaining provision provides sufficient notice. Although the Board understands of a fine or dues in ‘‘right-to-work’’ guidance to employees about the that many immigrant employees may be states. exercise of these rights while still unsure whether they are covered by the staying within the constraints set by a NLRA, the notice does not include a list 109 See comment of National Association of necessarily brief employee notice. As to of covered employees. Including Manufacturers. the first comment, the notice states that specific coverage of immigrants, but not 110 See comment of ALFA. an employer and union have a duty to other classes of employees, may cause

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confusion for many employees. such means.111 An employer that requirements for posting in languages Currently, the language in the notice customarily posts notices to its other than English, details of the tracks statutory language and provides employees on an intranet or internet site requirement for electronic posting of only the list of employees excluded must display the required employee notices by employers that customarily from coverage. As a result, those notice on such a site prominently—i.e., communicate with their employees employees not listed under the no less prominently than other notices electronically, and ‘‘safe harbor’’ exclusions will reasonably believe they to employees. The Board proposed to provisions for Federal contractors that are covered employees under the give employers two options to satisfy are already posting the Department of statute. Any employees who are unsure this requirement. An employer may Labor’s notice of NLRA rights. of their status should contact a regional either download the notice itself and a. Location of Posting office of the NLRB. post it in the manner described above, The final notice as modified is set or post, in the same manner, a link to Section 104.202(d) of the proposed forth in the Appendix to Subpart A of the Board’s Web site that contains the rule requires that the notice be posted this rule. full text of the required employee ‘‘in conspicuous places, including all notice. In the latter case, the proposed places where notices to employees are 2. Posting Issues rule states that the link must contain the customarily posted.’’ Some employers prescribed introductory language from and their representatives, including law The Board proposed that the notice to the poster, which appears in Appendix firm Baker & McKenzie, comment that employees shall be at least 11 inches by to Subpart A, below. An employer that the proposed rule does not define 17 inches in size, and in such colors and customarily communicates with its ‘‘customarily.’’ The Board responds that type size and style as the Board shall employees by e-mail will satisfy the the term is used in its normal meaning prescribe. The proposed rule further electronic posting requirement by of ‘‘ordinarily’’ or ‘‘usually,’’ as it has provides that employers that choose to sending its employees an e-mail been used in the Board’s remedial print the notice after downloading it message containing the link described orders for decades.112 This standard is from the Board’s Web site must print in above. consistent with the posting color, and the printed notice shall be at The proposed rule provides that, requirements in the regulations and least 11 inches by 17 inches in size. where a significant number of an statutes of other agencies.113 Baker & Proposed § 104.202(d) requires all employer’s employees are not proficient McKenzie’s comment contends that the covered employers to post the employee in English, the employer must provide quoted phrase should read instead notice physically ‘‘in conspicuous the required electronic notice in the ‘‘where other legally-required notices to places, including all places where language the employees speak. This employees are customarily posted.’’ The notices to employees are customarily requirement can be met either by Board disagrees. As under the posted.’’ Employers must take steps to downloading and posting, as required in Department of Labor’s notice posting ensure that the notice is not altered, § 104.202(f), the translated version of requirement,114 the Board’s final rule defaced, or covered with other material. the notice supplied by the Board, or by clarifies that the notice must be posted Proposed § 104.202(e) states that the prominently displaying, as required in wherever notices to employees Board will print the notice poster and § 104.202(f), a link to the Board’s Web regarding personnel rules and policies provide copies to employers on request. site that contains the full text of the are customarily posted and are readily It also states that employers may poster in the language the employees seen by employees, not simply where download copies of the poster from the speak. The Board will provide other legally mandated notices are Board’s Web site, http://www.nlrb.gov, translations of that link. 75 FR 80417. posted. for their use. It further provides that Section 104.203 of the proposed rule A number of comments from employers may reproduce exact provides that Federal contractors may employers 115 and individuals take the duplicates of the poster supplied by the comply with the requirements of the position that it is time to move away Board, and that they may also use rule by posting the notices to employees from paper posters and to encourage commercial poster services to provide required under the Department of employees to inform themselves of their the employee notice consolidated onto Labor’s notice-posting rule, 29 CFR part rights through the Internet. Many one poster with other Federally 471. Id. comments object that the posting mandated labor and employment The Board solicited comments on its requirement will add to already notices, as long as consolidation does proposed requirements for both physical cluttered bulletin boards or necessitate not alter the size, color, or content of the and electronic notice posting. In additional bulletin boards.116 The Board poster provided by the Board. Finally, addition, the Board solicited comments responds to these comments above in employers that have significant numbers on whether it should prescribe section II, subsection C, Factual Support of employees who are not proficient in standards regarding the size, clarity, for the Rule. The Council of Smaller English will be required to post notices location, and brightness of the of employee rights in the language or electronic link, including how to 112 See, e.g., The Golub Corporation, 159 NLRB languages spoken by significant prescribe electronic postings that are at 355, 369 (1966). numbers of those employees. The Board least as large, clear, and conspicuous as 113 See, e.g., 29 CFR 1903.2 (Occupational Safety will make available posters containing the employer’s other postings. and Health Act); 29 CFR 1601.30 (Title VII of the The Board received numerous Civil Rights Act of 1964); 42 U.S.C. 2000e-10(a) the necessary translations. (Americans with Disabilities Act); 29 U.S.C. 2619(a) comments concerning the technical In addition to requiring physical (Family and Medical Leave Act). requirements for posting the notices of 114 posting of paper notices, proposed 75 FR 28386. employee rights. Those comments 115 See, e.g., comments of Buffalo Wild Wings; § 104.202(f) requires that notices be address the locations where notices Associated Milk Producers, Inc.; Smitty’s, Inc.; distributed electronically, such as by e- would be physically posted, physical National Grocers Association; and Sorensen/Wille, mail, posting on an intranet or an Inc. characteristics of the posters, internet site, and/or other electronic 116 See, e.g., comments of Dr. Pepper Snapple Group; Georgia Caremaster Medical Services; means, if the employer customarily 111 See J. Picini Flooring, 356 NLRB No. 9, slip op. Homestead Village, Inc.; Exodus Designs & communicates with its employees by at 6 (2010). Surfaces; Bonnie Dedmore State Farm.

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Enterprises further maintains that the post a notice or cause a notice to be The Board has decided to retain the requirement to ensure that the notice is posted directed to its own employees. 11x17-inch poster size. As the NPRM conspicuous and not altered or defaced Retail Industry Leaders Association states, the Board will furnish paper imposes an unnecessary burden on asks whether the rule would apply to copies of the notice, at no charge, to employers. Caremaster Medical overseas employees of American employers that ask for them. Employers Services’ comment asks whether employers. The answer to that question that prefer to download and print the periodic inspections of the notices will is generally ‘‘no’’; the Board’s notice from the Board’s Web site will be conducted and, if so, by whom. jurisdiction does not extend to have two formats available: a one-page Specifically, this comment expresses American employees engaged in 11x17-inch version and a two-page 8 concern that employers will be forced to permanent employment abroad in 1⁄2x11-inch version, which must be permit union officials to enter their locations over which the United States printed in landscape format and taped facilities to inspect the notices. The rule has no legislative control. See Computer together to form the 11x17-inch poster. does not provide for such inspections or Sciences Raytheon, 318 NLRB 966 In response to the comments objecting alter current standards regarding union (1995). Employers of employees who are to the added expense of obtaining color access to employers’ premises. Rather, working abroad only temporarily are not copies through outside sources, the the Board contemplates that an required to post the notice in foreign Board has revised the rule to delete the employer’s failure to comply with the workplaces. requirement that reproductions of the rule will be brought to the attention of notice be in color, provided that the the employer or the Board by employees b. Size and Form Requirements reproductions otherwise conform to the or union representatives who are Many comments from organizations Board-provided notice. Accordingly, the lawfully on the premises. and individuals object to the 11x17-inch Board concludes that obtaining copies The International Union of Operating size prescribed by the proposed rule.119 of the notice will not be difficult or Engineers comments that the rule needs They argue that most employers do not expensive for employers. to apply to the marine construction have the capacity to make 11x17-inch The Board finds no merit to the other industry, in which employees work at color copies and will have to use objections to the 11x17-inch poster size. remote sites and do not necessarily see commercial copy services, which some Contrary to some comments, the Board a posting in the office. Another contend are expensive. A human does not believe that employees would comment similarly states that the rule is resources official also asserts that other think that NLRA rights are more not practical for small employers with required notices are smaller, and that important than other statutory rights, dispersed employees, e.g., trucking or the larger poster will be more eye- merely because the notice of NLRA insurance companies.117 Similarly, one catching, implying that NLRA rights are rights is somewhat larger than notices comment contends that the requirement more important. Other comments prescribed under some other statutes. It is burdensome for construction support the proposed 11x17-inch size, would seem that, upon learning of all of employers, whose employees report to stating that the notice should stand out their rights in the workplace, employees various worksites.118 The Board and be in large print, with one comment will determine from their understanding recognizes that certain work situations, specifying that the title should be of the rights themselves, rather than the such as those mentioned in the larger.120 The AFL–CIO argues that size of the various posters, which rights comments, present special challenges employers should not be permitted to (if any) are more important to them than with regard to physical posting. download the notice from the Board’s others. In the Board’s view, adopting a However, the Board concludes that Web site if their limited printing subjective ‘‘3′ rule’’ or a ‘‘legibility these employers must nonetheless post capacity would make it less eye- standard’’ could lead to disagreements the required notice at their work catching. over whether a particular poster was premises in accordance with the A few comments contend that the ‘‘legible’’ or could be read at a distance proposed rule. Electronic posting will prescribed size will make it difficult to of 3 feet. In addition, if, as some also aid the employers in providing the include in consolidated posters of comments contend (without citing notice to their employees in the manner various statutory rights, as the proposed specifics), the size of the Board’s notice in which they customarily communicate rule permits.121 One comment urges the will pose a problem for manufacturers with them. Board to follow the ‘‘3′ rule,’’ according of consolidated posters to include it TLC Companies contends that to which a notice is large enough if it with posters detailing other workplace professional employer organizations can be read from a distance of 3 feet,122 rights, that would seem to be a problem (PEOs) such as itself should be exempt and another suggests only a legibility best left to those manufacturers to solve. 123 from the rule’s requirements. It explains requirement. One comment states c. Language Issues that PEOs are ‘‘co-employers’’ of a client that minor deviations, such as 1⁄4 inch, employer’s employees, providing should not be deemed violations.124 The proposed rule requires that, payroll and other administrative Another comment expresses a concern ‘‘[w]here a significant portion of an services. However, it asserts that PEOs that a large, prominent poster could employer’s workforce is not proficient have no control over the client cause a few unhappy employees to in English, the employer must provide employer’s worksite. Accordingly, TLC begin activity that could result in the notice in the language the Companies is concerned that a PEO divisiveness in a small facility.125 employees speak.’’ This is the same could be found liable for its client’s standard applied in the Department of failure to post the notice. The Board 119 See, e.g., comment of Associated General Labor’s notice of NLRA rights for federal contemplates that employers will be Contractors (AGC) of Iowa. contractors (29 CFR 471.2(d)) and in the required to physically post a notice only 120 See, e.g., comments of AFL–CIO and three notice required under the Family and Georgetown University Law Center students. Medical Leave Act (29 CFR 825.300(4)). on their own premises or at worksites 121 See, e.g., comment of Sinnissippi Centers. Many comments support the where the employer has the ability to 122 AGC of Iowa. 123 Sinnissippi Centers. requirement and availability of 117 Comment of TLC Companies. 124 National Council of Agricultural Employers. translated notices, particularly as an 118 Comment of NAI Electrical Contractors. 125 Mercy Center Nursing Unit Inc. essential way of informing immigrant

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employees about their rights.126 But notice to those employees in their assist in providing the prescribed notice several comments complain that the respective language or languages or to to employees. As some comments state, rule does not define ‘‘significant.’’ 127 direct them to the Board’s Web site, electronic communication is now a Baker & McKenzie proposes that the http://www.nlrb.gov, where they can routine practice in many workplaces standard be 40 percent specifically of obtain copies of the notice in their and the source of much information the employer’s production and respective languages. The Board has from employers to their employees. maintenance workforce, while the also decided to add to the notice However, the Board has clarified the National Immigration Law Center instructions for obtaining foreign- final rule to mandate only that, if an proposes a 5 percent standard. Another language translations of the notice. employer customarily communicates comment urges that translated notices Employers will be required to request personnel rules or policies to its be required whenever any of the foreign-language notices from the Board employees in that manner, it must also employees are not proficient in or obtain them from the Board’s Web do so with respect to the notice of English.128 The U.S. Chamber of site in the same manner as the English- employee rights under the NLRA. The Commerce asserts that a safe harbor is language notice. If an employer requests concern that the rule will discourage needed for employers when a notice in from the Board a notice in a particular employers from using new technologies a particular language is not yet available language in which the notice is not is apparently not widely shared and, in from the Board. Moreover, a few available, the requesting employer will the Board’s view, is implausible. comments contend that the Board not be liable for non-compliance with Although the Board recognizes that should also provide Braille notices for the rule until the notice becomes some other statutes and regulations do vision-impaired employees, as well as available in that language. not require electronic notice, it notes audio versions for illiterate employees, With respect to employees who are that they generally predated the routine and versions of the notice that are vision-impaired or those who are use of electronic communications in the adaptable to assistive technologies.129 illiterate, employers may consult the workplace. Having only recently begun One individual proposes that the rule Board’s Regional Office on a case-by- ordering electronic posting of remedial mandate that employers read the notice case basis for guidance on appropriate notices,131 the Board has limited to employees when they are hired and methods of providing the required experience in this area, and employers to all employees annually. notice, including by audio recording. are encouraged to contact the local Having carefully considered the d. Electronic Posting Regional Office with questions about comments, the Board has decided to this provision. The Board does not agree define ‘‘significant’’ in terms of foreign- Many employer comments oppose the that employers should be permitted to language speakers as 20 percent or more requirement for electronic notice. The choose whether to provide physical or of an employer’s workforce. Thus, if as Coalition for a Democratic Workplace electronic notice, because some many as 20 percent of an employer’s points out that other agencies do not employers could select the less effective employees are not proficient in English require both electronic and physical of these alternatives, thus undermining but speak the same foreign language, the posting and asserts that only one the purpose of the rule. Finally, the employer must post the notice in that method is necessary. For example, the rights stated in the notice are not language, both physically and Coalition notes that the Family and accurately described as pertaining solely electronically (if the employer is Medical Leave Act notice obligation is to union membership, and the notice is otherwise required to post the notice satisfied by electronic posting alone, not intended to promote union electronically). If an employer’s and other statutes do not mention membership or union representation. workforce includes two or more groups electronic posting. The National Council Rather, the notice addresses a broad constituting at least 20 percent of the of Agricultural Employers urges the range of employee legal rights under the workforce who speak different Board to require electronic posting only NLRA, which involve protected languages, the employer must either if the employer posts other statutory or concerted activity as well as union physically post the notice in each of regulatory notices in that fashion. activity in both organized and those languages or, at the employer’s Another proposes that employers be unorganized workplaces, and also the option, post the notice in the language permitted to choose either physical or right to refrain from any such activity. spoken by the largest group of electronic posting. The National Many employer comments note that employees and provide each employee Association of Manufacturers remarks the proposed rule also does not define in each of the other language groups a that the proposed rule breaks new ‘‘customarily’’ as it pertains to copy of the notice in the appropriate ground for using an employer’s email electronic posting in § 104.202(f), i.e., language. If such an employer is also system to communicate information the type and degree of communication required to post the notice about ‘‘union membership.’’ The U.S. that triggers the requirement.132 electronically, it must do so in each of Chamber of Commerce suggests that this Numerous employers also participated those languages. If some of an aspect of the rule would chill in a postcard campaign objecting, employer’s employees speak a language employers’ use of new technologies. On among other things, that employers use not spoken by employees constituting at the other hand, the AFL–CIO and a wide variety of technology to least 20 percent of the employer’s several other commenters 130 support communicate with employees and that workforce, the employer is encouraged, electronic as well as physical posting; the rule could require them to use all but not required, either to provide the the Center for American Progress Action methods to convey the notice.133 For Fund, among others, points out that 126 See, e.g., comments of National Immigration electronic communications at work are 131 J. Picini Flooring, 356 NLRB No. 9 (2010). Law Center, Legal Aid Society—Employment Law standard now. 132 See, e.g., comments of International Center, and La Raza Centro Legal; Filipino After carefully considering these Foodservice Distributors Association (IFDA); Advocates for Justice. comments, the Board concludes that Associated Builders and Contractors; Los Angeles 127 See, e.g., comments of COLLE; Food Marketing County Business Federation; National Roofing Institute (FMI). electronic posting will substantially Contractors Association. 128 Georgetown law students. 133 See, e.g., comments of American Home 129 See, e.g., Baker & McKenzie; Heritage 130 See, e.g., comments of Gibson, Dunn, Cohen, Furnishings Alliance; Seawright Custom Precast; Foundation; Georgetown law students. Leifer & Yellig, P.C.; Beeson, Tayer & Bodine. Continued

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example, they ask whether an employer postings required under the final rule employers be allowed to choose to that occasionally uses text messaging or will be those on internet or intranet maintain the Department of Labor’s Twitter to communicate with employees sites. notice, although another comment would have to use those technologies Many comments address the asserts that employees might think that and, if so, how they would be able to characteristics of electronic posting, as the notice is no longer applicable comply with the rule, in view of the prescribed in § 104.202(f). In the NPRM, because of the lack of a current contract. length restrictions of these media. The the Board proposed not to prescribe the Another comment raises the possibility U.S. Chamber of Commerce raises the size, clarity, location, or brightness of an that either the Board or the Department same issue regarding faxing, voice mail, electronic notice or link to the notice, of Labor could decide to change its and instant messaging. The National but rather require that it be at least as notice and emphasized that they need to Roofing Contractors Association notes prominent as other electronic notices to be identical in order to provide the safe that some employers use email to employees, as the Department of Labor’s harbor. The Board responds that a communicate with certain employees, rule requires. No comments suggest Federal contractor that complies with while other employees have no access to more specific requirements; the the Department of Labor’s notice- email during their work day. As to email Michigan Health & Hospital Association posting rule will be deemed in communication itself, an individual argues that such requirements would compliance with the Board’s observes that many employees change result in inadvertent noncompliance. requirement.135 jobs every 3 to 4 years, and an email The Board has decided to adopt the reaches only those in the workforce at Department of Labor’s approach, as 3. Exceptions a specific time. The same comment proposed in the NPRM. The rule applies only to employers notes that the proposed rule does not Baker & McKenzie urges that the title that are subject to the NLRA. Under state when or how often email notice of the link in the proposed rule be NLRA Section 2(2), ‘‘employer’’ should be provided. Three Georgetown changed to ‘‘Employee Rights under the excludes the United States government, law students recommend that the rule National Labor Relations Act’’ rather any wholly owned government mandate email as well as intranet notice than ‘‘Important Notice about corporation, any Federal Reserve Bank, to employees when it goes into effect Employees Rights to Organize and any State or political subdivision, and and written notice to new employees Bargain Collectively with Their any person subject to the Railway Labor within a week of their starting Employers.’’ The Board agrees and has Act, 45 U.S.C. 151 et seq. 29 U.S.C. employment. revised the rule accordingly. 152(2). Thus, under the proposed rule, The Board responds that, as discussed A comment from Vigilant states that those excluded entities are not required above regarding the location of posting, a link to the Board’s Web site, which is to post the notice of employee rights. ‘‘customarily’’ is used in its normal one means of electronic posting, should The proposed rule also does not apply meaning. This provision of the rule not be required to include the to entities that employ only individuals would not apply to an employer that introductory language of the notice. The who are not considered ‘‘employees’’ only occasionally uses electronic means Board agrees, noting that the under the NLRA. See Subpart A, below; to communicate with employees. Department of Labor takes this 29 U.S.C. 152(3). Finally, the proposed However, in view of the numerous approach, and will not require that rule does not apply to entities over comments expressing concern over the electronic links to the Board’s Web site which the Board has been found not to proposed rule’s email posting include the introductory language. have jurisdiction, or over which the requirements, the Board has decided not For the foregoing reasons, the Board Board has chosen through regulation or to require employers to provide the has decided to retain the posting adjudication not to assert notice to employees by means of email requirements as proposed in the NPRM, jurisdiction.136 The Board proposed that and the other forms of electronic modified as indicated above. all employers covered under the NLRA communication listed in the previous would be subject to the notice posting e. Compliance With the Department of paragraph. In the Board’s judgment, the rule. 75 FR 80413. Labor’s Rule potential for confusion and the prospect The Coalition for a Democratic of requiring repeated notifications in Several comments opposing the Workplace argues that the final rule order to reach new employees outweigh proposed rule urge that, if the rule cannot be applied to religiously- the benefits that could be derived at the becomes final, the Board should retain affiliated employers. The Coalition margin from such notifications. All the ‘‘safe harbor’’ provided for Federal argues that assertion of jurisdiction employers subject to the rule will be contractors that comply with the would ‘‘substantially burden [such required to post the notice physically in Department of Labor’s notice posting employers’] exercise of religion in their facilities; and employers who rule.134 However, the U.S. Chamber of violation of both the First Amendment customarily post notices to employees Commerce states that some employers and the Religious Freedom Restoration regarding personnel rules or policies on post the Department of Labor’s notice at Act.’’ Similarly, Seyfarth Shaw contends an internet or intranet site will be facilities where it is not required or that religiously-affiliated healthcare required to post the Board’s notice on where Federal contract work is those sites as well. Moreover, those performed only sporadically. It 135 A few comments ask whether the Board’s rule notices (unlike the Board’s election and questions whether such employers must would preempt the Department of Labor’s rule. remedial notices) must remain posted; replace the Department of Labor’s notice Because the answer to that question would not thus, it is reasonable to expect that even affect the validity of the Board’s rule, the Board with the Board’s when no contract work finds it unnecessary to take a position on that issue though some employees may not see the is being performed, or whether they can in this proceeding. notices immediately, more and more comply with the Board’s rule by leaving 136 The proposed rule excludes small businesses will see them and learn about their the Department of Labor’s notice in whose impact on interstate commerce is de minimis NLRA rights as time goes by. or so slight that they do not meet the Board’s place. The Chamber proposes that discretionary jurisdiction requirements. See Accordingly, the only electronic generally An Outline of Law and Procedure in 134 See, e.g., comments of IFDA; Estes; The Sack Representation Cases, Chapter 1, found on the Mount Sterling, Kentucky Chamber of Commerce; Company; National Roofing Contractors Board’s Web site, http://www.nlrb.gov, and cases U.S. Xpress, Inc. Association. cited therein.

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institutions should be excluded from requirements. Those alternatives, not all requirement may affect other Board coverage if they are nonprofit and hold of which are mutually exclusive, were proceedings.137 themselves out to the public as being (1) Finding the failure to post the The Board received several hundred religious. required notices to be an unfair labor comments regarding the proposed The Board examines jurisdictional practice; (2) tolling the statute of means of enforcing the notice posting issues on a case-by-case basis, and the limitations for filing unfair labor requirement. Those that favor Board’s jurisdiction jurisprudence is practice charges against employers that implementing the rule also favor the highly complex. The Board has asserted fail to post the notices; (3) considering proposed enforcement mechanisms.138 jurisdiction over some religiously- the willful failure to post the notices as Those opposing the rule generally affiliated employers in the past, but has evidence of unlawful motive in unfair declined to assert jurisdiction over other oppose all three enforcement labor practice cases; (4) voluntary mechanisms. religiously-affiliated employers. See, compliance. 75 FR 80413–80414. e.g., Ecclesiastical Maintenance Service, As explained in the NPRM, the Board A. Noncompliance as an Unfair Labor 320 NLRB 70 (1995), and St. Edmund’s considered but tentatively rejected Practice High School, 337 NLRB 1260 (2002). In relying solely on voluntary compliance. Ukiah Valley Medical Center, the Board This option logically would appear to be The rule requires employers to inform found that neither the First Amendment the least conducive to an effective employees of their NLRA rights because nor the Religious Restoration Act enforcement of the notice-posting the Board believes that employees must precludes the Board from asserting requirement, and the Board’s limited know their rights in order to exercise jurisdiction over a religiously-affiliated experience with voluntary posting of them effectively. Accordingly, the Board employer. 332 NLRB 602 (2000). If an notices of employee rights seems to may find that an employer that fails or employer is unsure whether the Board confirm this. When an election petition refuses to post the required notice of has jurisdiction over its operations, it is filed, the Board’s Regional Office employee rights violates Section 8(a)(1) may contact the Board’s regional office. sends the employer Form NLRB–5492, of the NLRA, 29 U.S.C. 158(a)(1) by In its comment, the United Stated Notice to Employees, together with a ‘‘interfer[ing] with, restrain[ing], or Postal Service points out that it has leaflet containing significant ‘‘Rights of coerc[ing] employees in the exercise of different statutory rules from those Employees.’’ See the Board’s the rights guaranteed in section 7 (29 covering other private sector employees. Casehandling Manual, Part Two— U.S.C. 157).’’ Labor relations in the Postal Service are Representation Proceedings, Section As it explained in the NPRM, the governed by Chapter 12 of the Postal 11008.5, found on the Board’s Web site, Board expects that most employers that Reorganization Act of 1970, 39 U.S.C. http://www.nlrb.gov. The Regional fail to post the required notice will do 1201 et seq. Section 1209(a) of the Office also asks employers to post the Postal Reorganization Act generally so simply because they are unaware of notice of employee rights in the makes the NLRA applicable to all the rule, and that when it is called to workplace; however, the Board’s employee-management relations ‘‘to the their attention, they will comply experience is that the notices are seldom extent not inconsistent with the without the need for formal posted. Id. at 80414. Moreover, because provisions of this title.’’ As raised by the administrative action or litigation. the notice is voluntary and there is no comment, there are indeed several areas When that is not the case, the Board’s enforcement scheme, there is no remedy in which the Postal Reorganization Act customary procedures for investigating to fix the problem when the notice is is inconsistent with the NLRA. The and adjudicating alleged unfair labor not posted. The Board has found principal differences are that an agency practices may be invoked. See NLRA nothing in the comments to the NPRM shop is prohibited (id. section 1209(a)) Sections 10 and 11, 29 U.S.C. 160, 161; that would give it reason to believe that 139 and that postal employees may not 29 CFR part 102, subpart B. When the voluntary compliance would be any strike. Id. Section Board finds a violation, it will more effective under the present notice 410(b)(1)(incorporating 5 U.S.C. 7311). customarily order the employer to cease In light of these differences, the Board rule. Therefore, the Board has decided and desist and to post the notice of agrees that a postal worker-specific not to rely on voluntary compliance. notice is necessary. The Board, Instead the final rule provides that 137 The tolling and animus provisions are not failing to post the notice may be found remedies in the usual sense of the term; however, however, does not wish to create a these provisions inform the public of the impact notice without the benefit of specific to be an unfair labor practice and may also, in appropriate circumstances, be that violations of the notice posting obligation may public comment on this issue. have in other NLRB proceedings. As described Accordingly, the Board will exclude the grounds for tolling the statute of below, these impacts are not a ‘‘punishment’’ for limitations. In addition, a knowing and noncompliance. To the contrary, the tolling United States Postal Service from provision is intended to ensure that noncompliance coverage under the final rule; the Board willful failure to post employee notices may be found to be evidence of with the notice posting requirement does not may, at a later date, request comments prejudice innocent employees. And the animus on a postal worker-specific notice. unlawful motive in an unfair labor provision is intended to inform the public that practice case. (As the Board also knowing and willful violations of the rule may Subpart B—Enforcement and explained in the NPRM, it did not support an inference of animus toward NLRA Complaint Procedures consider imposing monetary fines for rights. 138 See, e.g., Harkin and Miller, National Subpart B of the rule contains noncompliance, because the Board lacks Employment Law Project, Public Justice Center, Inc. procedures for enforcement of the the statutory authority to impose 139 The Board’s General Counsel has employee notice-posting requirement. In ‘‘penalties or fines.’’ See, e.g., Republic unreviewable discretion as to whether to issue a Steel Corp. v. NLRB, 311 U.S. 7, 10–12 complaint in an unfair labor practice proceeding. crafting Subpart B, the Board was See, e.g., Vaca v. Sipes, 386 U.S. 171, 182 (1967). mindful of the need to identify an (1940).) These provisions have two The General Counsel has exercised that discretion effective remedy for noncompliance purposes: to ensure that any violations to refuse to proceed with meritorious charges when with the notice-posting requirement. of the notice-posting requirement that it would not serve the purposes of the Act. See The Board gave careful consideration to occur may be remedied where General Counsel memoranda 02–08 and 95–15. This necessary, and to describe how discretion includes dismissing any charge filed several alternative approaches to against an employer that is not covered by the enforcing the rule’s notice-posting violations of the notice-posting Board’s jurisdictional requirements.

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employee rights as well as a remedial surveillance of employees’ union Communications Workers v. Beck, notice.140 75 FR 80414. activities, threatening employees with above, violates Section 8(b)(1)(A) of the The comments opposing this proposal retaliation for engaging in protected NLRA. California Saw & Knife Works, make three principal arguments. First, activities—to violate Section 8(a)(1) by above, 320 NLRB at 233, 259, 261. An only Congress, not the Board, has the ‘‘interfer[ing] with, restrain[ing], or employer that fails or refuses to execute authority to ‘‘create a new unfair labor coerc[ing] employees in the exercise of an agreed-to collective-bargaining practice.’’ 141 Second, even if the Board the rights guaranteed in section 7’’ of agreement on request of the union possesses such authority, it has not the NLRA. Section 8 is equally silent violates Section 8(d), 8(a)(5) and, identified the Section 7 rights that concerning unions’ duty to inform derivatively, Section 8(a)(1). An would be interfered with by an employees of their rights under NLRB v. employer that fails to provide relevant employer’s failure to post the notice.142 General Motors, above, and information requested by the union that Third, ‘‘interfer[ing] with, restrain[ing], Communications Workers v. Beck, represents the employer’s employees or coerc[ing]’’ employees within the above, before attempting to obligate violates Section 8(a)(5) and (1). See, e.g., meaning of NLRA Section 8(a)(1) them pursuant to a union-security NLRB v. Truitt Mfg. Co., 351 U.S. 149 necessarily involves action, not failure clause, yet the Board finds that a (1956). to act; therefore, failure to post the union’s failure to provide that notice The NLRA’s recognition that a failure notice cannot violate Section 8(a)(1).143 restrains and coerces employees in to perform a legal duty may constitute The Board finds no merit in any of these violation of Section 8(b)(1)(A). unlawful interference, coercion or contentions. California Saw & Knife Works, above, restraint is not unique. Courts have To begin with, it is incorrect to say 320 NLRB at 233, 259, 261.144 expressly held that the failure to post that the Board lacks the authority to find Because, as described in detail above, notice required by regulation can be an that failure to post the notice violates notice posting is necessary to ensure ‘‘interference’’ with employee Family Section 8(a)(1) without Congressional effective exercise of Section 7 rights, a and Medical Leave Act rights. In a approval. It is true, as the Society for refusal to post the required notice is at provision that ‘‘largely mimics th[e Human Resource Management states, least an interference with employees’ language of] § 8(a)(1) of the NLRA,’’ that ‘‘Section 10(a) of the Act exercise of those rights. For these Bachelder v. Am. W. Airlines, 259 F. 3d specifically limits the NLRB’s powers to reasons, in finding that an employer’s 1112, 1123 (9th Cir. 2001), the FMLA preventing only the unfair labor failure to post the required notice states that ‘‘[i]t shall be unlawful for any practices listed in Section 8 of the Act. interferes with, restrains, or coerces employer to interfere with, restrain, or Section 8 is silent regarding any notice employees in the exercise of their NLRA deny the exercise of or the attempt to posting requirement (emphasis in rights, in violation of Section 8(a)(1), the exercise, any right provided under this original).’’ However, as the Supreme Board is acting consistently with its title.’’ 29 U.S.C. 2615(a)(1). In Court remarked long ago, settled practice. Some comments claim interpreting this language, the The [NLRA] did not undertake the that the Board has not identified any Department of Labor’s regulations impossible task of specifying in precise and specific Section 7 right to justify this specifically state that failure to post the unmistakable language each incident which remedy. But such specificity is not required notice of FMLA rights ‘‘may would constitute an unfair labor practice. On needed, because all Section 7 rights are constitute an interference with, the contrary that Act left to the Board the implicated by an employer’s failure to restraint, or denial of the exercise of an work of applying the Act’s general post the required notice. As previously employee’s FMLA rights’’ under section prohibitory language in the light of the infinite combinations of events which might stated, there is a strong nexus between 2615(a)(1). 29 CFR 825.300(e). Courts be charged as violative of its terms. Thus a knowledge of Section 7 rights and their have agreed, finding that the failure to ‘‘rigid scheme of remedies’’ is avoided and free exercise. It therefore follows that an provide FMLA notices is an ‘‘adverse administrative flexibility within appropriate employer’s failure to post this notice, action’’ against the employee that statutory limitations obtained to accomplish which informs employees of their supports a prima facie case of the dominant purpose of the legislation. Section 7 rights, reasonably tends to interference. Greenwell v. Charles Republic Aviation Corporation v. NLRB, interfere with the exercise of such Machine Works, Inc., (W.D. Ok. April 324 U.S. 793, 798 (1945) (citation rights. 15, 2011); Smith v. Westchester County, omitted). Accordingly, since its Finally, although most violations of (S.D.N.Y. February 14, 2011). creation, the Board in interpreting the NLRA involve actions rather than Accordingly, the Board finds no Section 8(a)(1) has found numerous failures to act, there are instances in impediment to declaring that an actions as to which ‘‘Section 8 is which a failure to act may be found to employer’s failure to post the required silent’’—e.g., coercively interrogating interfere with, restrain, or coerce notice will violate Section 8(a)(1).145 employees about their protected employees in the exercise of their As it explained in the NPRM, concerted activities, engaging in Section 7 rights. Thus, a union’s failure however, the Board expects that, in to provide the required notices under practice, few violations will be found 140 Consistent with precedent, it will be unlawful NLRB v. General Motors, above, and for failures to post the notice. The Board for an employer to threaten or retaliate against an anticipates that most employers that fail employee for filing charges or testifying in a Board 144 See Harkin and Miller. Although the Board to post the notice will do so because proceeding involving an alleged violation of the suggested in a footnote in California Saw that there they are unaware of the rule, and that notice-posting requirement. NLRA Sections 8(a)(1), was no obligation to inform employees of their 8(a)(4), 29 U.S.C. 158(a)(1), (4); Romar Refuse Section 7 rights, 320 NLRB at 232 n. 42, this dicta when they learn about the rule, they Removal, 314 NLRB 658 (1994). merely indicated that no such obligation had yet will post the notice without the need for 141 See, e.g., comments of FMI, Assisted Living been recognized in that particular context. To the formal administrative action or Federation of America (ALFA). extent it could be read as denying that such an litigation. 75 FR 80414. To that end, 142 See, e.g., comment of U. S. Chamber of obligation may exist, it is the considered view of the Commerce. Board that this reading must be rejected. Similarly, § 104.212(a) of the rule states that if an 143 See, e.g., comments of Employment and Labor the statement in U.S. Postal Service, 241 N.L.R.B. Law Committee, Association of Corporate Counsel 141, 152 (1979), regarding affirmative notice 145 ALFA contends that failure to post a Board- (‘‘ACC’’); California Chamber of Commerce obligations is limited to Weingarten rights, and, in required notice is not an unfair labor practice, but (California Chamber); and National Council of any event, does not suggest that notice of NLRA the authorities cited do not support that Agricultural Employers (NCAE). rights may never be required. proposition.

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unfair labor practice charge is filed an employer promptly posts the notice, ambiguous on the issue. Irwin v. Dep’t alleging failure to post the notice, ‘‘the ‘‘there will be no further administrative Veterans Affairs, 498 U.S. 89, 94–96 Regional Director will make reasonable proceedings, unless the Board has (1990); Zipes v. Trans World Airlines, efforts to persuade the respondent information giving the Board reason to Inc., 455 U.S. 385, 392–98 (1982); see employer to post the * * * notice believe that the preceding failure to do Young v. United States, 535 U.S. 43, 49 expeditiously,’’ and that ‘‘[i]f the so was intentional.’’ The Board rejects (2002) (‘‘It is hornbook law that employer does so, the Board expects these suggestions because they would limitations periods are customarily that there will rarely be a need for create unnecessary obstacles to effective subject to equitable tolling, unless further administrative proceedings.’’ 75 enforcement of the notice requirement. tolling would be inconsistent with the FR 80419. That requirement is straightforward, and text of the relevant statute.’’ (quotations Numerous comments assert that compliance should be a simple matter. and citations omitted)); Hallstrom v. finding the failure to post the notice to The Board believes that the General Tillamook County, 493 U.S. 20, 27 be an unfair labor practice is too harsh Counsel should have discretion to (1989) (‘‘The running of such statutes is a remedy, especially for small address particular cases of non- traditionally subject to equitable employers that are more likely to be compliance efficiently and tolling.’’); Honda v. Clark, 386 U.S. 484, excusably unaware of the rule.146 As appropriately, depending upon the 501 (1967); Glus v. Brooklyn E.D. just stated, in practice it should almost circumstances. Terminal, 359 U.S. 231, 232–33 (1959) never be necessary for proceedings to (equitable tolling of statutes of B. Tolling the Section 10(b) Statute of reach that point. For the few employers limitations is ‘‘[d]eeply rooted in our Limitations that may ultimately be found to have jurisprudence’’); Holmberg v. violated Section 8(a)(1) by failing to post NLRA Section 10(b) provides in part Armbrecht, 327 U.S. 392, 396–97 (1946) the notice of employee rights, the only that ‘‘no complaint shall issue based (equitable tolling is ‘‘read into every certain consequences will be an order to upon any unfair labor practice occurring federal statute of limitation’’). cease and desist and that the notice and more than six months prior to the filing In Zipes, the Supreme Court held that a remedial notice be posted; those of the charge with the Board[.]’’ 29 the timeliness provision of Title VII’s remedies do not strike the Board as U.S.C. 160(b). However, as the Board charge-filing requirement was ‘‘subject severe. stated in the NPRM, the 6-month filing to waiver, estoppel and equitable Michigan Health & Hospital period does not begin to run until the tolling.’’ 455 U.S. at 392–98. The Association urges that an employer be charging party has actual or constructive Supreme Court expressly analogized to allowed to correct an initial failure to notice of the allegedly unlawful the NLRA, and stated that Section10(b) post the notice without further conduct. See, e.g., John Morrell & Co., was not jurisdictional: ‘‘[T]he time consequences; Fireside Distributors, Inc. 304 NLRB 896, 899 (1991), review requirement for filing an unfair labor agrees and asks that technical violations denied 998 F.2d 7 (D.C. Cir. 1993) practice charge under the National of the rule not be subject to a finding of (table). 75 FR 80414. This makes Labor Relations Act operates as a statute a violation. The Heritage Foundation intuitive sense, because it would be of limitations subject to recognized backs the same approach for inadvertent unfair to expect charges to be filed equitable doctrines and not as a failures to post. The Board disagrees. To before the charging party could restriction of the jurisdiction of the repeat, the Board anticipates that most reasonably have known that the law was National Labor Relations Board.’’ Id. at employers that inadvertently fail to post violated. Similar concerns for fairness n.11. Zipes strongly supports the the notice will do so on being informed justify tolling the statute of limitations proposed rule. The analogy between of the posting requirement, and that in where an employee, although aware of Title VII and the NLRA is well those circumstances further proceedings the conduct in question, is excusably established, and neither the holding of will rarely be required. However, the unaware that the conduct is unlawful Zipes regarding Title VII nor Zipes’ Board believes that this matter is best because mandatory notice was not given characterization of 10(b) has ever been handled through the General Counsel’s to the employee. The Board found that called into doubt. traditional exercise of prosecutorial widespread ignorance of NLRA rights Notices of employment rights are discretion in accordance with the justified requiring notice to be posted. intended, in part, to advise employees directions given here. The Board cited the observation of the of the kinds of conduct that may violate California Chamber and NCAE U.S. Court of Appeals for the Third their rights so that they may seek contend that the Board should specify Circuit in a case involving the failure to appropriate remedies when violations the ‘‘reasonable efforts’’ a Regional post the notice required under the occur. Failure to post required notices Director will make to persuade an ADEA, that ‘‘[t]he [ADEA] posting deprives employees of both the employer to post the notice when a requirement was undoubtedly created knowledge of their rights and of the charge alleging a failure to post has been because Congress recognized that the availability of avenues of redress. filed. They propose that the rule be very persons protected by the Act might Accordingly, a substantial majority of amended to state that the Board will be unaware of its existence.’’ Bonham v. the courts of appeals—including the send the employer at least two mailed Dresser Industries, 569 F.2d 187, 193 First, Third, Fourth, Fifth, Sixth, letters, with the notice enclosed, (1977), cert. denied 439 U.S. 821 (1978). Seventh, Eighth, and Eleventh requesting that the employer post the Accordingly, the Board proposed that Circuits—have adopted the doctrine that notice within a specified period of time, tolling the 10(b) period for filing unfair the failure to post required employment preferably 30 days. They also assert that labor practice charges might be law notices may result in equitable the Board must specify the appropriate where the required notice tolling of the statute of limitations. circumstances in which additional has not been posted. 75 FR 80414. For Mercado v. Ritz-Carlton San Juan Hotel, proceedings will be appropriate. The the reasons discussed below, the Board 410 F.3d 41, 47–48, 95 FEP Cases 1464 Heritage Foundation urges that adheres to that view. (1st Cir. 2005) (Title VII); Bonham v. § 104.212(a) be modified to state that if Section 10(b) is a statute of Dresser Industries, above, 569 F.2d at limitations, and statutes of limitations 193 (ADEA); Hammer v. Cardio Medical 146 See, e.g., comments of St Mar Enterprises, Inc. are presumed to include equitable Products, Inc., 131 Fed. Appx. 829, 831– and National Federation of Independent Business. tolling whenever the statute is silent or 832 (3d Cir. 2005) (Title VII and ADEA);

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Vance v. Whirlpool Corp., 716 F.2d The Board received many comments doctrine form ‘‘two distinct lines of 1010 (4th Cir. 1983) (describing notice opposing this proposed rule provision. cases apply[ing] two distinct standards posting tolling as ‘‘the prevailing view Several comments assert that, when a to two distinct bases for equitable of the courts’’); Elliot v. Group Med. & charging party is unaware of the facts tolling’’). Surgical Serv., 714 F.2d 556, 563–64 supporting the finding of an unfair labor Some comments argue that because (5th Cir. 1983); EEOC v. Kentucky State practice, the Board tolls the 10(b) period Section 10(b) contains a limited Police Dept., 80 F.3d 1086, 1096 (6th only when the charged party has exception to the 6-month filing period Cir. 1996), cert. denied 519 U.S. 963 fraudulently concealed those facts from for employees in the military, it is (1996); Posey v. Skyline Corp., 702 F.2d the charging party.150 That is not so. improper for the Board to toll the 10(b) 102 (7th Cir. 1983); Schroeder v. Copley The Board has long held, with court period under other circumstances.152 Newspaper, 879 F.2d 266 (7th Cir. approval, that the 10(b) period begins to The Board rejects this argument as 1989); Kephart v. Inst. Gas Tech., 581 run only when the charging party has foreclosed by the Supreme Court’s F.2d 1287, 1289 (7th Cir. 1978); notice that the NLRA has been violated. holding in Zipes, above, and by the long Beshears v. Asbill, 930 F.2d 1348 (8th The party asserting the 10(b) defense line of Board and court decisions Cir. 1991); McClinton v. Alabama By- has the burden to show such notice; it finding tolling of the 10(b) period Prods. Corp., 743 F.2d 1483 (11th Cir. may do so by showing that the charging appropriate. In any event, the exception 1984); see also Henchy v. City of party had either actual or constructive in Section 10(b) for persons in the Absecon, 148 F. Supp. 2d 435, 439 (D. knowledge of the alleged unfair labor military provides that if the aggrieved N.J. 2001); Kamens v. Summit Stainless, practice prior to the 10(b) period. See, person ‘‘was prevented from filing such Inc., 586 F. Supp. 324, 328 (E.D. Pa. e.g., Broadway Volkswagen, 342 NLRB charge by reason of service in the armed 1984) (FLSA). 147 (But see Wilkerson v. 1244, 1246 (2004), enfd. sub nom. East forces, in which event the six-month Siegfried Ins. Agency, Inc., 683 F.2d Bay Automotive Council v. NLRB, 483 period shall be computed from the day 344, 347 (10th Cir. 1982) (‘‘the simple F.2d 628, 634 (9th Cir. 2007); University of his discharge.’’ This provision does failure to post [Title VII and ADEA] Moving & Storage Co., 350 NLRB 6, 7, not toll the six-month period during notices, without intent to actively 18 (2007); John Morrell & Co., above, armed service; rather, it states that the mislead the plaintiff respecting the 304 NLRB at 899; Pullman Building six-month period begins at discharge. cause of action, does not extend the Company, 251 NLRB 1048 (1980), enfd. See Holland v. Florida, 130 S.Ct. 2549, time within which a claimant must file 691 F.2d 507 (9th Cir. 1982) (table); 2561 (2010) (rejecting argument that his or her discrimination charge.’’)) Burgess Construction, 227 NLRB 765, explicit exceptions to time limits in After careful consideration, the Board 766 (1977), enfd. 596 F.2d 378 (9th Cir. nonjurisdictional statute of limitations is persuaded that the prevailing judicial 1978), cert. denied 440 U.S. 940 (1979). precluded equitable tolling).153 view should apply in the NLRA context Knowledge may be imputed if the A number of comments contend that as well.148 As an equitable concept, charging party would have discovered tolling the 10(b) period is contrary to the equitable tolling is a matter of fairness. the unlawful conduct by exercising salutary purpose of statutes of The Board has determined that many reasonable or due diligence. Broadway limitations in general, and 10(b) in employees are unaware of their NLRA Volkswagen, above, 342 NLRB at 1246. particular, which is ‘‘to require diligent rights and has devised a minimally Certainly, the Board has found it prosecution of known claims, thereby burdensome means of attempting to appropriate to toll the 10(b) period providing finality and predictability in rectify that situation—requiring when the charging party was excusably legal affairs and ensuring that claims employers to post workplace notices unaware of the pertinent facts because will be resolved while evidence is informing employees of those rights. To the charged party had fraudulently reasonably available and fresh.’’ 154 bar an employee who is excusably concealed them; see, e.g., Burgess Black’s Law Dictionary, 9th Edition, at unaware of the NLRA from seeking a Construction, above, 227 NLRB at 766; 1546. The Board recognizes that with remedy for a violation of NLRA rights but tolling is not limited to such the passage of time evidence can be lost because he or she failed to file an unfair circumstances. Pullman Building and witnesses die, move away, or their labor practice charge within the 10(b) Company, above, 251 NLRB at 1048. memories fade; it therefore will not period, when the employer did not post To the extent that the comments argue lightly find that the 10(b) period should the required notice, would unfairly that the Board should not engage in be tolled. However, like the courts deprive the employee of the protection equitable tolling of the 10(b) period whose decisions are cited above, the of the Act because of the employer’s when an employer has merely failed to Board also recognizes that equitable failure to comply with its legal post the notice but not engaged in tolling is a fundamental part of the responsibilities. To deny equitable fraudulent concealment,151 the Board statute of limitations, and that inequity tolling in such circumstances ‘‘would disagrees. Fraudulent concealment results from barring an individual from grant to the employee a right to be concerns a different kind of equitable seeking relief from a violation of his or informed without redress for violation.’’ doctrine, and is not directly relevant to her NLRA rights where the individual Bonham v. Dresser Industries, above, the notice posting equitable tolling excusably was unaware of these rights. 569 F.2d at 193.149 doctrine hereby adopted. See Mercado, After all, the purpose of a statute of above, 410 F.3d at 46–47 n.8 (employer limitations is to ‘‘require diligent 147 See comments of Harkin and Miller, AFL–CIO, misconduct and equitable tolling and Service Employees International Union (SEIU). 152 See, e.g., comments of California Chamber and 148 The Board has broad discretion to interpret in the absence of equitable tolling of the 10(b) NCAE. 10(b), including equitable tolling, in accordance period, such ‘‘redress’’ would not aid an employee 153 American Bus Association v. Slater, 231 F. 3d with its experience administering the Act. Lodge 64, who was excusably unaware of his or her NLRA 1 (D.C. Cir. 2000), cited by California Chamber and IAM v. NLRB, 949 F.2d 441, 444 (D.C. Cir. 1991) rights, failed to file a timely charge, and thus was NCAE, did not concern equitable tolling and is (deferring to the Board’s interpretation of 10(b) denied any remedy for violation of those rights. Cf. therefore inapposite. The court there also found that equitable exceptions). Kanakis Co., 293 NLRB 435, 436 fn. 10 (1989) Congress had expressly limited the sanctions 149 Under the final rule, the Board could also find (possibility of criminal sanctions against employer available under the Americans with Disabilities Act the failure to post the notice to be an unfair labor would be little comfort to charging party if deprived to those enumerated in that statute; such is not the practice, and could, if appropriate, consider a of recourse to Board’s remedial processes). case under the NLRA. willful failure to post to be evidence of unlawful 150 See, e.g., comments of FMI, COLLE. 154 See, e.g., comments of FMI, COLLE, and U.S. motive in an unfair labor practice case. However, 151 See, e.g., comments of FMI, COLLE. Chamber of Commerce.

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prosecution of known claims,’’ not employee had actual or constructive also suggest that some employees, claims that are unknown to the injured knowledge of the conduct alleged to be though represented, may have little party. As to concerns that the statute of unlawful, as well as actual or contact with their unions and rely on limitations could be tolled for years, constructive knowledge that the workplace notices instead of unions for ‘‘perhaps indefinitely,’’ 155 the Board conduct violated the NLRA, and yet relevant information. responds that such a potential also failed to timely file an unfair labor The Board finds some merit in both exists under other statutes, as well as practice charge, the Board will not toll sets of contentions. On the one hand, it under the NLRA when a charging party the 10(b) period merely because of the is reasonable to assume that employees is unaware of the facts giving rise to an employer’s failure to post the notice. Cf. who are represented by unions are more alleged unfair labor practice. However, John Morrell & Co., above, 304 NLRB at likely to be aware of their NLRA rights at this point, concerns about the 899. than unrepresented employees. And, unfairness of lengthy tolling periods are The Board asked for comments although being represented by a union entirely speculative. Tolling is an concerning whether unions filing unfair is not the same as being represented by equitable matter, and one factor to be labor practice charges should be deemed legal counsel, it is reasonable to assume considered in deciding whether to have constructive knowledge of the that union officials are sufficiently equitable tolling is appropriate is unlawful character of the conduct at conversant with the NLRA to be able to whether it would prejudice the issue. All of the comments that give employees effective advice as to respondent. Mercado, above, 410 F.3d at addressed this issue answered in the their NLRA rights. On the other hand, 48. Accordingly, if a lengthy tolling of affirmative.159 Unlike most employees, some employees, though represented by the 10(b) period would prejudice an unions routinely deal with issues unions, may in fact have little contact employer in a given case, the Board arising under the NLRA and are with their bargaining representatives for could properly consider that factor in therefore more familiar with the Act’s one reason or other and may, in fact, be determining whether tolling was provisions. Accordingly, the tolling filing charges against their appropriate in that case.156 provisions in the final rule apply only representative. Thus, the Board does not Several comments argue against to charges filed by employees, not those find it appropriate under all tolling the 10(b) period because filed by unions. (The Board still could circumstances to impute knowledge of ‘‘ignorance of the law is no excuse.’’ 157 toll the 10(b) period if a charging party NLRA rights to charge-filing employees This argument is amply refuted by the union did not discover the facts who are union members or are court decisions cited above, in which underlying the charge within six represented by unions. Rather, the limitations periods under other months, if the employees reporting Board will consider evidence workplace statutes were tolled because those events failed to alert the union concerning the union’s representational employers failed to post required within that time because they were presence and activity in determining notices. Most notably, the Fifth Circuit excusably unaware of their NLRA whether it is appropriate to toll the has emphasized that the failure to post rights.) 10(b) period. a required notice ‘‘vitiates the normal Several comments contend that assumption that an employee is aware failure to post the required notice C. Failure To Post as Evidence of of his rights.’’ Elliot v. Group Med. & should not toll the 10(b) period if an Unlawful Motive Surgical Serv., 714 F.2d 556, 563–64 employee who files an unfair labor The Board suggested that it could (5th Cir. 1983). In any event, the maxim practice charge is either a union consider an employer’s knowing failure relied on is generally understood to member or is represented by a union. to post the notice as evidence of have arisen in order to prevent Taft Stettinius & Hollister LLP asserts unlawful motive in an unfair labor individuals (usually in criminal cases) that the burden should be placed practice proceeding in which motive is from deliberately failing to ascertain equally on unions to ensure that their an issue. 75 FR 80414–80415. A number whether actions they contemplate taking organizers and members are aware of of comments assert that the Board would be lawful, and then pleading employee rights under the NLRA. cannot properly take that step.160 To the ignorance when accused of California Chamber and NCAE observe contrary, the Board has often considered lawbreaking.158 In the Board’s view, this that knowledge of a filing time limit is other unlawful conduct as evidence of reasoning loses much of its force when generally imputed to an individual who antiunion animus in cases in which applied to individuals, such as charging is represented by an attorney, see, e.g., unlawful motive was an element of an parties in unfair labor practice cases, Mercado v. Ritz-Carlton San Juan Hotel, unfair labor practice.161 See, e.g., Leiser who are not accused of any wrongdoing above, 410 F.3d at 47–48; they urge that Construction, LLC, 349 NLRB 413, 417– but who claim to have been injured by an employee who is represented by a 419 (2007) (threats, coercive statements, the unlawful actions of other parties. union should be treated similarly. interrogations evidence of unlawfully The Board emphasizes, however, that Conversely, three Georgetown motivated failure to hire), enfd. 281 Fed. failure to post the required notice will University law students oppose the idea Appx. 781 (10th Cir. 2008) not automatically warrant a tolling that union-represented employees (unpublished); Shearer’s Foods, 340 remedy. If an employer proves that an should be deemed to have constructive NLRB 1093, 1094 (2003) (plant closing knowledge of NLRA rights. They reason threat evidence of unlawfully motivated 155 See comments of Fisher & Phillips LLC and that some workplaces may have discharge); Ferguson-Williams, Inc., 322 National Grocers Association. NLRB 695, 703, 707 (1996) (threats, 156 As to ACC’s concern that the rule could unrepresented as well as represented potentially subject employers to unfair labor employees, and that imputing interrogations, creation of impression of practice charges based on conduct as far back as knowledge to the latter group would surveillance, evidence of unlawfully 1935, the Board stresses that tolling will be provide an incentive not to post the motivated discharge); Champion Rivet available only in the case of unlawful conduct that Co., 314 NLRB 1097, 1098 (1994) occurs after the rule takes effect. notice, thus depriving the former group 157 See, e.g., comments of Coalition for a of needed information. The students (circulating unlawful antiunion petition, Democratic Workplace and COLLE. 158 Moreover, even in criminal law, the principle 159 See, e.g., comments of U.S. Chamber of 160 See, e.g., comments of COLLE and California is not absolute. See, e.g., Lambert v. California, 355 Commerce, American Trucking Associations, Taft Chamber. U.S. 225 (1957). Stettinius & Hollister LLP. 161 See comment of AFL–CIO.

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refusal to recognize and bargain with concerned with fairness to the to post the notice is intentional and union, evidence of unlawfully employee, and these fairness concerns meant to prevent employees of learning motivated failure to hire). Thus, it is are unaffected by the employer’s good or their rights. proper for the Board to consider a bad faith; as previously noted, notice D. Other Comments knowing and willful failure to post the posting tolling is fundamentally notice as evidence of unlawful motive. different from tolling based upon The Board received many comments However, the Board has noticed that employer misconduct. However, an asserting that if the proposed it employed somewhat inconsistent employer that fails to post the notice enforcement scheme for failure to post language in the NPRM regarding the only because it honestly but erroneously the required notice is adopted, union consideration of failure to post the believes that it is not subject to the adherents will tear down the notices in notice as evidence of antiunion animus. NLRB’s jurisdiction does not thereby order to harass employers and, Thus, the caption of paragraph indicate that it is hostile to employees’ particularly, to vitiate 10(b).167 These 104.214(b) reads: ‘‘Knowing NLRA rights, but only that it believes comments express the concern that noncompliance as evidence of unlawful that those rights do not apply in the tolling the 10(b) period will lead to a motive.’’ However, the paragraph itself employer’s workplace. In such a case, flood of unfair labor practice charges, states that ‘‘If an employer has actual or the employer’s good faith normally and that, to avoid that eventuality, constructive knowledge of the should preclude finding the failure to employers will have to incur significant requirement to post the notice and fails post to be willful or evidence of costs of policing the postings and/or or refuses to do so, the Board may antiunion animus. installing expensive tamper-proof consider such a willful refusal as ACC contends that even though the bulletin boards.168 In the absence of evidence of unlawful motive in a case rule states that only a ‘‘willful’’ failure experience with such postings, the in which motive is an issue.’’ (Emphasis to post the notice may be considered Board deems these concerns speculative added in both cases.) 75 FR at 80420. In evidence of unlawful motive, in practice at this time. If particular employers the preamble to the NPRM, the Board the Board will always infer at least experience such difficulties, the Board referred only to knowing noncompliance constructive notice from the publication will deal with them on a case-by-case as evidence of unlawful motive. 75 FR of the rule in the Federal Register and basis. However, as explained above, at 80414–80415. On reflection, the the maxim that ‘‘ignorance of the law is tolling is an equitable matter, and if an Board wishes to clarify this provision to no excuse.’’ 164 The Board rejects this employer has posted the notice and state that, to be considered as evidence contention. The quoted maxim means taken reasonable steps to insure that it of unlawful motive, an employer’s only that an employer’s actual lack of remains posted, it is unlikely that the failure to post the notice must be both knowledge of the rule would not excuse Board would find tolling appropriate. knowing and willful—i.e., the employer its failure to post the notice. It would, California Chamber and NCAE ask the must have actual (as opposed to however, undercut any suggestion that Board to specify the ‘‘additional constructive) knowledge of the rule and the failure to post was willful and remedies’’ that may be imposed in the event of a notice posting violation. yet refuse, on no cognizable basis, to therefore indicative of unlawful motive. 165 104.213(a). The Board has broad post the notice. The Board is revising Contrary to numerous comments, discretion in crafting remedies for the language of the rule accordingly. finding a willful failure to post the The comment that prompted these notice as evidence of animus is not the violations of the NLRA. NLRB v. Seven- revisions urges that there should be no same as adopting a ‘‘presumption of Up Bottling Co. of Miami, 344 U.S. 344, adverse consequences for the employer animus’’ or ‘‘presumption of unlawful 346 (1953). The remedies imposed in a that does not post the notice because it motive.’’ There is no such presumption. given case depend on the nature of the has a good-faith (but, implicitly, The Board’s general counsel would have violations and the particular facts in the case. The Board declines to speculate as erroneous) belief that it is not covered the burden of proving that a failure to to every possible remedy that might be by the NLRA.162 The Board rejects this post was willful. In any event, a willful imposed in every imaginable set of contention as it pertains to finding the failure to post would not be conclusive circumstances. failure to post to be an unfair labor proof of unlawful motive, but merely evidence that could be considered, Several comments protest that practice or grounds for tolling the 10(b) employers could be fined for failing to period. Failure to post the notice along with other evidence, in determining whether the general post the notice; several others contend interferes with employees’ NLRA rights that the Board should levy fines instead regardless of the reason for the failure; counsel had demonstrated unlawful 166 of imposing the proposed remedies. The good faith, though commendable, is motive. Likewise, contrary to the contentions of ALFA and AHCA, the irrelevant.163 Additionally, tolling is Board will not assume that any failure 167 See, e.g., comments of Lemon Grove Care & Rehabilitation, numerous ‘‘postcard’’ comments. 162 One example could be an employer that 168 One comment asserts that because of the believes that it is subject to the Railway Labor Act Mike O’Connor Chevrolet, 209 NLRB 701, 703 potential for tolling the 10(b) period, ‘‘businesses and not to the NLRA. (1974), enf. denied on other grounds 512 F.2d 684 * * * will have to keep records forever[.]’’ The 163 This is so in other areas of NLRA law. For (8th Cir. 1975). Board finds no merit in this contention. Employers example, an employer who coercively interrogates 164 See also comment of American Health Care that are aware of the rule can avoid keeping records or disciplines an individual concerning his or her Association (AHCA). ‘‘forever’’ simply by posting the notice. Employers union activities violates the NLRA if the individual 165 See, e.g., comments of FMI and COLLE. that are not aware of the requirement to post the is a statutory employee, even though the employer 166 The Georgetown law students ask whether, if notice would also be unaware of the possibility of may have honestly believed that the individual was failure to post the notice may be found to be an tolling the 10(b) period in the event of a failure to a statutory supervisor and not protected by the unfair labor practice and also may be considered post, and thus would discern no reason to—and NLRA. Also, absent compelling economic evidence of antiunion animus, such a failure could probably would not—keep records ‘‘forever.’’ circumstances, an employer that is testing the ‘‘satisfy an element of its own violation.’’ The Prejudice to the employer because of long-lost Board’s certification of a newly-selected union in answer is no, because the failure to post, whether records would be considered by the Board in the court of appeals makes unilateral changes in knowing or inadvertent, would be an unfair labor determining whether tolling is appropriate in the unit employees’ terms and conditions of practice regardless of motive; knowing and willful particular case. employment at its peril; if the court affirms the failure to post would be relevant only in cases such Another comment complains that ‘‘the certification, the unilateral changes violate NLRA as those alleging unlawful discipline, discharge, or requirement of proof on the employer to ‘certify’ Section 8(a)(5) even if the employer believed in refusal to hire, in which motive is an element of the that this posting is up each day is burdensome[.]’’ good faith that the certification was inappropriate. violation. There is no such requirement.

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Board rejects both contentions because, measures supported by extensive Board addition to the proposed enforcement as explained in the NPRM, the Board and court precedent. scheme, the rule state that an does not have the authority to impose In addition, in a number of places the employer’s knowing failure to post the fines. 75 FR 80414, citing Republic Steel NPRM used the term ‘‘sanctions’’ in a notice of employee rights during the Corp. v. NLRB, 311 U.S. 7, 10–12 (1940). very loose sense to refer to aspects of the critical period before a representation Another comment argues that the Board proposed enforcement scheme, election shall be grounds for setting the should not provide remedies for failing inadvertently suggesting that this election aside on the filing of proper to post the notice because such scheme was punitive. The term objections. The Board finds that this is remedies are not provided under other ‘‘sanctions’’ was an inapt choice of unnecessary, because the Board’s notice statutes. In fact, both remedies and descriptor for the enforcement scheme: of election, which must be posted by an sanctions are imposed under some the classic 8(a)(1) remedial order has employer three working days before an statutes; see, e.g., 29 CFR 1601.30 (fine long been upheld as nonpunitive; election takes place, contains a of $110 per offense for failing to post equitable tolling is concerned with summary of employee NLRA rights and notice under Title VII); 29 CFR fairness to employees, not punishment a list of several kinds of unfair labor 825.300(a)(1) (same sanction for failing of misconduct, and is fully consistent practices, and failure to post that notice to post notice under FMLA); cases cited with current Board doctrine; and the already constitutes grounds for setting above for tolling of limitation periods animus provision is little more than the an election aside.171 In any event, for failing to post notices under several common-sense extension of well- during a union organizing campaign, the statutes. established evidentiary principles that union can instruct members of its in- One comment contends that the apply to many other NLRA violations, plant organizing committee to verify proposed remedies were proposed and is also not designed to punish whether the notice required under this solely as means of deterring failures to employers. That they may also furnish rule has been posted; if it has not, the post the notices, and are therefore incentives for employers to comply with union can so inform the employer and, inappropriate; several other comments the notice-posting rule does not detract if need be, the Board’s regional office. from their legitimacy; if it were assert that the proposed remedies are Subpart C—Ancillary Matters punitive.169 Although the Board otherwise, the Board could never disagrees, there is language in the impose any remedy for violations of the Several technical issues unrelated to NPRM that may have inadvertently NLRA if the remedy had a deterrent those discussed in the two previous suggested that the enforcement effect. In any event, the Board hereby subparts are set out in this subpart. mechanisms were proposed solely for disavows any suggestion from deterrent purposes. The Board wishes to statements in the NPRM that the IV. Dissenting View of Member Brian E. correct any such misimpression. As remedial measures were proposed solely Hayes stated above, in explaining why it was as penalties. ‘‘Agencies may play the sorcerer’s proposing those mechanisms, the Board Contrary to the tenor of numerous 170 apprentice but not the sorcerer stated in its NPRM that it was ‘‘mindful comments opposing this rule, the himself.’’ 172 of the need to identify effective Board is not issuing the rule in order to Today, my colleagues conjure up a incentives for compliance.’’ 75 FR entrap unwary employers and make new unfair labor practice based on a 80413. Later, referring to tolling the operations more difficult for them new statutory obligation. They impose 10(b) period and considering a willful because of inadvertent or technical on as many as six million private failure to post the notice as evidence of violations. It is doing so in order that employers the obligation to post a notice unlawful motive, the Board said that it employees may come to understand of employee rights and selected ‘‘proposes the following options their NLRA rights through exposure to illustrative unfair labor practices. The intended to induce compliance with the notices posted in their workplaces obligation to post is deemed enforceable notice-posting requirement.’’ Id. at explaining those rights. Accordingly, through Section 8(a)(1)’s proscription of 80414. However, the Board made those the important thing is that the notices be interference with employees’ Section 7 statements while explaining why it had posted. As explained above, an rights, and the failure to post is further determined not to rely entirely on employer that fails to post the notice penalized by equitable tolling of Section employers’ voluntary compliance with because it is unaware of the rule, but 10(b)’s limitations period and the the rule. (The Board had had little promptly posts the notice when the rule possible inference of discriminatory success in persuading employers to is brought to its attention, will nearly motivation for adverse employment voluntarily post notices of employee always avoid any further proceedings. actions taken in the absence of posting. rights during the critical period leading Similarly, an employer that posts the While the need for a more informed up to a representation election.) Id. By notice but fails initially to comply with constituency might be a desirable goal, noting that the proposed enforcement one of the technical posting it is attainable only with Congressional scheme would have some deterrent requirements will almost always avoid imprimatur. The Board’s rulemaking effect in that context, the Board did not further problems by correcting the error authority, broad as it is, does not mean to imply that it was proposing when it is called to the employer’s encompass the authority to promulgate those measures solely for deterrence attention. And if an employer is unsure a rule of this kind. Even if it did, the purposes. For the reasons discussed at of what the rule requires in a particular action taken here is arbitrary and length above, the Board has found that setting, it can seek and receive guidance capricious, and therefore invalid, finding a failure to post the notices to from the Board. because it is not based on substantial violate Section 8(a)(1) and, in The Service Employees International evidence and it lacks a reasoned appropriate circumstances, to warrant Union and the United Food and analysis. tolling the 10(b) period and/or inferring Commercial Workers propose that, in unlawful motive in an unfair labor 171 practice case are legitimate remedial 170 For example, ‘‘This seems to be yet another See Section 103.20 of the Board’s Rules and trap for the employers. Another avenue to subject Regulations. them to law suits and interrogations, and 172 Alexander v. Sandoval, 532 U.S. 275, 291 169 See, e.g., comments of FMI, ALFA, AHCA. uneconomic activities and ungodly expenditures.’’ (2001).

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No Statutory Authority for the Proposed laws. See Title VII of the Civil Rights absence of such language in its enabling Rule Act of 1964 (Title VII), 42 U.S.C. statute. No agency has made the failure The majority concedes that the 2000e–10, the Age Discrimination in to comply with a notice-posting ‘‘National Labor Relations Act does not Employment Act (ADEA), 29 U.S.C. 627, requirement unlawful absent express directly address an employer’s The Occupational Safety and Health statutory authorization, until today. obligation to post a notice of its Act, 29 U.S.C. 657(c), the Americans The explicit inclusion of notice- employees’ rights arising under the Act with Disabilities Act (ADA), 42 U.S.C. posting provisions and permissible or the consequences an employer may 12115, the Family and Medical Leave sanctions by Congress in other labor face for failing to do so.’’ In fact, the Act (FMLA), 29 U.S.C. 2619(a), and the legislation undercuts the majority’s NLRA 173 makes no mention of any such Uniformed Service Employment and claim that this notice-posting rule is not putative obligation. The majority further Reemployment Rights Act (USERRA), a ‘‘major policy decision properly made acknowledges that the NLRA ‘‘is almost 38 U.S.C. 4334(a). by Congress alone.’’ Strangely, the unique among major Federal labor laws The majority points out that the majority does not merely contend that in not including an express statutory Department of Labor (DOL) promulgated this pattern in comparable labor provision requiring employers routinely a notice-posting rule under the Fair legislation fails to prove that Congress to post notices at their workplaces Labor Standards Act (FLSA), although did not intend that the Board should informing employees of their statutory that statute does not contain a specific have the rulemaking authority under rights.’’ Despite the obvious import of statutory provision on workplace Section 6 to mandate the notice posting these admissions, the majority postings. However, the FLSA, unlike the at issue here. They conversely contend concludes that the Board’s plenary NLRA, imposes a data-collection and that it proves Congress must have recordkeeping requirement on intended to confer such authority on the authority under Section 6 of the Act to 174 make rules ‘‘necessary to carry out the employers. 29 U.S.C. 211(c). DOL’s Board! Perhaps cognizant of the weakness of provisions of the Act’’ permits Wage and Hour Administrator this position, the majority attempts to promulgation of the rule they advocate. promulgated the notice-posting downplay the import of Congressional I disagree. regulation in 1949 in reliance on this Congress did not give specific requirement. It appears that the silence on the Board’s authority to statutory authority to the Board to propriety of the FLSA rule has never mandate notice posting and to enforce require the posting of a general rights been challenged, perhaps because, that mandate through unfair labor notice when it passed the Wagner Act unlike the rule promulgated herein, practice sanctions. They cite Cheney in 1935. Just one year earlier, however, there are no citations or penalties R.R. Co. v. ICC, 902 F. 2d 66, 68–69 Congress amended the Railway Labor assessed for the failure to post. This is (D.C. Cir. 1990), for the proposition that the maxim ‘‘expressio unius est exclusio Act (‘‘RLA’’) to include an express a significant point of distinction that alterius,’’ which holds that the special notice-posting requirement. 45 U.S.C. warrants further discussion. It must be constantly borne in mind mention of one thing indicates an intent 152 Eighth; Pub. L. No. 73–442, 48 Stat. that the rule promulgated today makes for another thing not be included 1185, 1188 (1934). As the Supreme the failure to post the required notice a elsewhere, may not always be a useful Court noted, the RLA served as the violation of the Act. The majority tool for interpreting the intent of model for the National Labor Relations misleadingly seeks to decouple Congress. Obviously, the usefulness of Act. NLRB v. Pennsylvania Greyhound obligation from violation in its analysis this tool depends on the context of a Lines, 303 U.S. 261 (1938). See also by discussing the latter in the context of particular statute. Independent Ins. NLRB v. Jones & Laughlin Steel Corp., enforcement of the assertedly lawful Agents of Am., Inc. v. Hawke, 211 F.3d 301 U.S. 1, 44 (1937); H. J. Heinz Co. v. notice-posting rule. That is nonsense. 638 (D.C. Cir. 2000) (applying the NLRB, 311 U.S. 514, 524–525(1941). Making noncompliance an unfair labor maxim). In my view, the absence of an That Congress did not include an practice is integral to the rule and, express notice provision in the NLRA, express notice-posting requirement consequently, integral to an analysis of and the failure to amend the Act to when passing the Wagner Act the whether the notice-posting requirement include one when Congress expressly following year strongly implies, if not is a permissible exercise of the Board’s included notice posting provisions in compels, the conclusion that Congress rulemaking authority. Of the other labor statutes, shows that it did did not intend for the Board to have aforementioned agencies that have not intend to authorize the Board to regulatory authority to require such a notice-posting requirements, none of promulgate this rule.175 notice. Nothing in the legislative history them makes the failure to post unlawful, Arguing to the contrary, the majority hints of any concern by Congress about absent additional specific statutory asserts that the notice-posting rule is the need for employers to notify authorization. Only the RLA, Title VII, employees generally of their rights FMLA, and the Occupational Safety Act 174 Of course, this reasoning would seem to under the new enacting statute. Since (OSHA) have such authorizing language. dictate that the failure of the Board to inform its own employees of their general rights under the 1935, despite extensive revisions in the ADA, the ADEA, the FLSA, and the Taft-Hartley Act amendments of 1947 Federal Labor Relations Act is an unfair labor USERRA do not. Consequently, an practice, even though that statute imposes no such and the Landrum-Griffin Act employer’s failure to post a notice under express requirement. To date, I am not aware that amendments of 1959, Congress has those statutes is not subject to sanction this agency, or any other, views itself as subject to never added such authority. such an enforceable obligation. as unlawful. 175 On the other hand, when Congress The majority contends that the fact that the Thus, both before and after the rule comes 76 years after the NLRA was enacted is has subsequently desired to include a Wagner Act, Congress has consistently not a ‘‘condition of validity.’’ Mayo Foundation for general rights notice-posting manifested by express statutory Medical Education and Research v. United States, requirement, it has done so expressly in 131 S.Ct. 704, 713–14 (2011) (quoting Smiley v. language its intent to impose a general Citibank (S.D.), N.A., 517 U.S. 735, 740 (1996) other federal labor and employment notice-posting duty on employers with (‘‘neither antiquity nor contemporaneity with the respect to the rights of employees under statute is a condition of validity.’’). I have no 173 Throughout this dissent, I will refer generally various federal labor laws. Only one problem with that proposition, but if the Board to the statute we administer as the NLRA, unless lacks statutory authority to promulgate a rule, it is the discussion focuses on a specific historical administrative agency promulgated a of no matter that it attempts to do so in year 1 or version, such as the Wagner Act. notice-posting requirement in the year 76 of its existence.

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entitled to deference under the analysis to relate reasonably to some other no relation to the few examples the set forth in Chevron U.S.A. Inc. v. provision as part of the overall statutory majority can muster in Board precedent. Natural Resources Defense Council, scheme contemplated by Congress.176 The only instance with even a passing Inc., 467 U.S. 837 (1984). Under Nothing in the text or the regulatory resemblance to the rights notice-posting Chevron, where Congress has not structure of the NLRA suggests that the requirement here is the requirement that ‘‘directly addressed the precise question Board has the authority to promulgate a union give notice of Beck 178 and at issue,’’ id. at 842–843, that the notice-posting rule at issue in order General Motors 179 rights. However, the rulemaking authority may be used in to address a gap in the statutory scheme failure to give such a notice is not per order ‘‘to fill any gap left, implicitly or for resolving questions concerning se unlawful. It becomes an unfair labor explicitly, by Congress.’’ Id. at 843. representation through Section 9, or in practice only when a union, without Even assuming that the absence of an preventing, through Sections 8 and 10, giving notice, takes the affirmative explicit posting requirement in the specifically enumerated unfair labor action of seeking to obligate an NLRA is not interpreted as clear practices that adversely affect employee to pay fees and dues under a expression of Congressional intent, the employees’ Section 7 rights. On the union-security clause.180 Beyond that, a majority fails to persuade that Congress contrary, it is well-established that the union has no general obligation to give delegated authority in Section 6 of the Board lacks independent authority to employees notice of their Beck and NLRA for the Board to fill a putative initiate or to solicit the initiation of General Motors rights; much less does it statutory gap by promulgating a rule representation and unfair labor practice violate the NLRA by failing to do so. By that an employer commits an unfair proceedings, and Section 10(a) limits contrast, the rule promulgated today labor practice by failing to affirmative the Board’s powers to preventing only imposes a continuing obligation on notify its employees of their rights the unfair labor practices listed in employers to post notice of employees’ under the NLRA. As the Supreme Court Section 8 of the Act. Yet the majority general rights and, even absent any has explained, ‘‘the ultimate question is asserts that it may exceed these affirmative act involving those rights, whether Congress would have intended, limitations by requiring employers to makes the failure to maintain such and expected, courts to treat [the post a notice of employee rights and notice unlawful.181 regulation] as within, or outside, its illustrative unfair labor practices at all Unlike my colleagues, I find that the delegation to the agency of ‘gap-filling’ times, regardless of whether a petition Supreme Court’s opinion in Local 357, authority.’’ Long Island Care at Home, had been filed or an employer has been Teamsters v. NLRB, 365 U.S. 667 (1961), Ltd. v. Coke, 551 U.S. 158, 173 (2007). found to have committed an unfair labor speaks directly to this point. In that There is no doubt that there are many practice. case, the Board found a hiring hall gaps and ambiguities in the NLRA that The majority’s reliance on a agreement unlawfully discriminatory Congress intended for the Board to combination of Section 7, 8, and 10 per se because, even though it included address, using its labor expertise, either warrants special mention. They reason an express anti-discrimination through adjudication or rulemaking. that an employer interferes with Section However, the existence of ambiguity in 7 rights in general, and thereby violates practice ‘‘listed in Section 8.’’ Thus, ‘‘[n]either the a statute is not enough per se to warrant Section 8(a)(1), by failing to give National Labor Relations Board nor the courts are deference to the agency’s interpretation continuous notice to employees of those given any blanket authority to prohibit whatever of its authority in every respect. The labor practices that in their judgment are deemed rights. It may be a truism that an to be unfair.’’ S. Rep. No. 573, 74th Cong., 1st Sess. ambiguity must be such as to make it employee must be aware of his rights in 17 (1935) at 8–9 reprinted in Legislative History of appear that Congress either explicitly or order to exercise them, but it does not the National Labor Relations Act of 1935, Vol. II at implicitly delegated authority to cure follow that it is the employer under our 2307–2308 (1985). that ambiguity. Am. Bar Ass’n v. FTC, statutory scheme who must provide 178 Communications Workers v. Beck, 487 U.S. 430 F.3d 457, 469 (D.C. Cir. 2005); 735 (1988). enlightenment or else incur liability for 179 Motion Picture Ass’n of America, Inc. v. NLRB v. General Motors, 373 U.S. 734 (1963). violating those rights. The new unfair 180 California Saw & Knife Works, 320 NLRB 224, FCC, 309 F. 3d 796, 801 (D.C. Cir. 2002) labor practice created by the rule bears 233 (1995). (‘‘MPAA ’’) (‘‘agency’s interpretation of no reasonable relation to any unfair 181 None of the FMLA cases cited by the majority [a] statute is not entitled to deference labor practice in the NLRA’s pre- support finding that a failure to post a general absent a delegation of authority from notice of employee rights under the NLRA is existing enforcement scheme developed unlawful. In Bachelder, the Ninth Circuit actually Congress to regulate in the areas at 177 over seven decades. It certainly bears found ‘‘unavailing’’ the employer’s argument that it issue.’’). had satisfied all its specific FMLA notice Thus, even when an administrative 176 See, e.g., Mourning v. Family Publications obligations because it had complied with the agency seeks to address what it believes Service, Inc., 411 U.S. 356, (1973) Unlike here, the FMLA’s general posting rule. Id. at 1127, fn. 5. is a serious interpretive problem, the Federal Reserve Board easily met this standard in Rather, the court found that because the employer Supreme Court has said that the agency Mourning when issuing a disclosure regulation failed to ‘‘notify’’ an employee which of the four under the Truth in Lending Act, even though that FMLA’s ‘‘leave year’’ calculation methods it had ‘‘may not exercise its authority ‘in a Act did not explicitly require lenders to make such chosen, the employer ‘‘interfered’’ with that manner that is inconsistent with the disclosures. In sustaining the regulation, the Court employee’s rights and, therefore, improperly used administrative structure that Congress found the regulation to be within the Federal the employee’s FMLA covered absences as a enacted into law.’ ’’ FDA v. Brown & Reserve’s rulemaking authority and, in light of the ‘‘negative factor’’ when taking the affirmative legislative history, the disclosure requirement was adverse action of discharging her. Williamson Tobacco Corp., 529 U.S. not contrary to the statute. ‘‘The crucial distinction, Similarly, in neither Greenwell v. Charles 120, 125(2000) (quoting ETSI Pipeline * * * [was that] the disclosure requirement was in Machine Works, Inc., 2011 WL 1458565 (W.D.Okla., Project v. Missouri, 484 U.S. 495, fact enforced through the statute’s pre-existing 2011); Smith v. Westchester County, 769 F. Supp 2d 517(1988)). Further, the statute at issue remedial scheme and in a manner consistent with 448 (S.D.N.Y. 2011), was the FMLA general posting it.’’ Ragsdale v. Wolverine World Wide, Inc., 535 requirement at issue. Smith did not involve a notice must be considered as a ‘‘symmetrical U.S. 81, 94 (2002). issue and Greenwell involved the employer’s failure and coherent regulatory scheme.’’ 177 The Senate report on the Wagner bill stressed to comply with a different notification obligation Gustafson v. Alloyd Co., 513 U.S. 561, that unfair labor practices were ‘‘strictly limited to under the FMLA. 569, 115 S.Ct. 1061, 131 L.Ed.2d 1 those enumerated in section 8. This is made clear In any event, as previously stated, FMLA by paragraph 8 of section 2, which provides that expressly provides that employers give notice to (1995). In our case, the exercise of ‘The term ‘unfair labor practice’ means unfair labor employees of rights thereunder and expressly rulemaking authority under Section 6 is practice listed in Section 8,’’ and by Section 10(a) provides for sanctions if notice is not given. The not self-effectuating; it must be shown empowering the Board to prevent any unfair labor NLRA does neither.

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provision, it did not include two unfair labor practices is necessary to presence.’’ Id. No such conclusion was additional provisions that the Board carry out any substantive section of the possible in that case. No such declared were necessary to prevent NLRA. Nevertheless, the majority conclusion is possible here. Quite ‘‘unlawful encouragement of union construes AHA as an endorsement of simply, the Board lacks statutory membership.’’ The Court disagreed, deference to the exercise of Section 6 authority to promulgate a rule that stating rulemaking authority whenever imposes a new obligation on employers Perhaps the conditions which the Board Congress did not expressly limit this and creates a new unfair labor practice attaches to hiring-hall arrangements will in authority. This is patently incorrect. ‘‘To to enforce it. suggest, as the [majority] effectively time appeal to the Congress. Yet, where The Rule Is Arbitrary and Capricious Congress has adopted a selective system for does, that Chevron deference is required dealing with evils, the Board is confined to any time a statute does not expressly Even if the Board arguably has that system. National Labor Relations Board negate the existence of a claimed rulemaking authority in this area, v. Drivers, etc. Local Union, 362 U.S. 274, administrative power * * *, is both deference is unwarranted under 284–290, 80 S.Ct. 706, 712–715, 4 L.Ed.2d flatly unfaithful to the principles of Chevron and the Administrative 710. Where, as here, Congress has aimed its administrative law * * * and refuted by Procedure Act if the rule promulgated is sanctions only at specific discriminatory precedent.’’ Railway Labor Executives’ ‘‘arbitrary or capricious in substance, or practices, the Board cannot go farther and Ass’n v. National Mediation Bd., 29 manifestly contrary to the statute.’’ establish a broader, more pervasive United States v. Mead Corp., 533 U.S. regulatory scheme.182 F.3d 655, 671 (D.C.Cir.1994) (citation omitted). Were courts ‘‘to presume a 218, 227 (2001). Also see AHA, 499 U.S. Congress in Section 8(a)(1) aimed its delegation of power absent an express at 618–20 (applying arbitrary and sanctions only at employer actions that withholding of such power, agencies capricious standard in its consideration interfere with the exercise of Section 7 would enjoy virtually limitless of the Board’s rule on acute care rights. By this rulemaking, my hegemony, a result plainly out of hospital bargaining units). ‘‘Normally, colleagues go farther and establish a keeping with Chevron and quite likely an agency rule would be arbitrary and broader, more pervasive regulatory with the Constitution as well.’’ Id. capricious if the agency has relied on scheme that targets employer inaction, In sum, the majority’s notice rule does factors which Congress has not intended or silence, as unlawful interference. As not address a gap that Congress it to consider, entirely failed to consider Local 357 instructs, they lack the delegated authority to the Board to fill, an important aspect of the problem, authority to do this.183 whether by rulemaking or adjudication. offered an explanation for its decision American Hospital Association v. The Supreme Court has made clear that that runs counter to the evidence before NLRB, 499 U.S. 606 (1991) (AHA), upon ‘‘[w]here Congress has in the statute the agency, or is so implausible that it which the majority heavily relies, given the Board a question to answer, could not be ascribed to a difference in illustrates a valid exercise of authority the courts will give respect to that view or the product of agency under Section 6. In AHA, the Supreme answer; but they must be sure the expertise.’’ Motor Vehicle Mfg. Ass’n of Court unanimously upheld the Board’s question has been asked.’’ NLRB v. the U.S., Inc. v. State Farm Mut. Auto. health care unit rule, finding that Insurance Agents’ Int’l Union, 361 U.S. Ins. Co., 463 U.S. 29, 43 (1983). ‘‘[T]he Section 6’s general grant of rulemaking 419, 432–433 (1960). The Supreme agency must examine the relevant data authority ‘‘was unquestionably Court also has made clear: ‘‘[Congress] and articulate a satisfactory explanation sufficient to authorize the rule at issue does not * * * hide elephants in for its action including a ‘rational in this case unless limited by some mouseholes.’’ Whitman v. American connection between the facts found and other provision in the Act.’’ Id. at 609– Trucking Associations, 531 U.S. 457, the choice made.’ ’’ Id. (quoting 10 (emphasis added). The Court further 468 (2001). Burlington Truck Lines v. United States, found that the rule was clearly My colleagues’ action here is 371 U.S. 156, 168 (1962)). See also consistent with authority under Section markedly like the Federal Trade Business Roundtable et al. v. S.E.C.,— 9(b) to make appropriate bargaining unit Commission (FTC) regulation rejected as F.3d—, 2011 WL 2936808 (D.C. Cir., determinations. It specifically rejected ultra vires by the court of appeals in July 22, 2011) (finding SEC acted the argument that language in 9(b) Am. Bar Ass’n v. FTC, supra. The FTC arbitrarily and capriciously by relying directing the Board to decide the issued a ruling that attorneys engaged in on insufficient empirical data appropriate bargaining unit ‘‘in each certain practices were financial supporting its rule and by completely case’’ limited its authority to define institutions subject to the privacy discounting contrary studies). appropriate units by rulemaking. provision of the Gramm-Leach-Bliley In AHA, the Board’s health care Congress expressly authorized the Act (GBLA). Upon review of the bargaining units rule was supported by Board in Section 9(b) to determine detailed statutory scheme at issue, the ‘‘the extensive record developed during appropriate bargaining units and the court found it ‘‘difficult to believe that the rulemaking proceedings, as well as Board exercised its rulemaking Congress, by any remaining ambiguity, its experience in the adjudication of authority to promulgate a rule intended to undertake the regulation [of health care cases during the 13-year ‘‘necessary to carry out’’ Section 9(b). In a subject] * * * and never mentioned period between the enactment of the contrast, as previously stated, there is [it] in the statute.’’ 430 F.3d at 469. The health care amendments and its notice no reasonable basis for finding that a court further opined that to find the of proposed rulemaking.’’ AHA, 499 rule making it unlawful for employers to FTC’s interpretation to be ‘‘deference- U.S. at 618. The Supreme Court upheld fail to post and maintain a notice of worthy, we would have to conclude that the validity of the rule finding it ‘‘based employee rights and selected illustrative Congress not only had hidden a rather on substantial evidence and supported large elephant in a rather obscure by a ‘‘reasoned analysis.’’ Id. at 619 182 365 U.S. at 676. mousehole, but had buried the (citing Motor Vehicle Mfrs. Ass., 463 183 My colleagues attempt to distinguish Local ambiguity in which the pachyderm U.S. at 57). 357 as limited to an interpretation of Sec. 8(a)(3) lurks beneath an incredibly deep mound By contrast, the majority’s articulation and 8(b)(2)’s prohibition of discriminatory practices. That may have been the issue before the of specificity, none of which bears the of the need to mandate that employers Court, but I do not view the quoted rationale as so footprints of the beast or any indication violate Section 8(a)(1) unless they post limited. that Congress even suspected its a notice of employee rights is not based

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on substantial evidence, nor does it management attorneys to the opposite communications, sufficient when the provide a satisfactory explanation for effect that the employees know about Wagner Act was passed, but not now? the choice they have made. They their rights under the Act, but my The union density levels for 1935 and contend that a mandatory notice posting colleagues find these less persuasive. today are roughly the same.185 Why at rule enforceable through Section 8(a)(1) In any event, the partisan opinions a time when the Board champions its is needed because they believe that most and perceptions, although worthy of new Web site and the Acting General employees are unaware of their NLRA consideration, ultimately fail as Counsel continues to encourage the rights and therefore cannot effectively substantial evidence supporting the regional outreach programs initiated by exercise those rights. This belief is Board majority’s initial premise for his predecessor, do my colleagues so based on: (1) Some studies indicating proposing the rule. There remains the readily dismiss the Board’s role in that employees and high school Board’s conclusion that the decline in providing information about rights students about to enter the work force union density provides the missing under the statute we administer? For are generally uninformed about labor factual support. The majority explains that matter, why are the numerous law; (2) an influx of immigrants in the that there was less need for a posting of employee, labor organizer, and worker labor force who are presumably also information about NLRA rights when advocacy groups whose comments uninformed about labor law; (3) the the union density was higher because profess awareness of these rights unable current low and declining percentage of ‘‘friends and family who belonged to to communicate this information to union-represented employees in the unions’’ would be a source of those who they know lack such private sector, which presumably means information. This is nothing more than awareness? Is the problem one of access that unions are less likely to be a source supposition. There is no empirical or message? Would a reversal of the of information about employee rights; evidence of a correlation between union union density trend or an increase in and (4) the absence of any general legal density and access to information about petition and charge filings be the only requirement that employers or anyone employee rights, just as there are no reliable indicators of increased else inform employees about their broad-based studies supporting the awareness? NLRA rights. 75 FR 80411. suppositions about a lack of information I would think that a reasoned Neither the Notice of Proposed stemming from high school curricula or explanation for the choice of a sweeping Rulemaking nor today’s notice the influx of immigrants in the work rule making it unlawful for employers to summarizing comments in response to force. fail to post and maintain notice of that notice come anywhere close to At bottom, the inadequacy of the employee rights would at least include providing a substantial factual basis record to support my colleagues’ factual some discussion of these questions and supporting the belief that most premise is of no matter to them. In attempt to marshal more than a employees are unaware of their NLRA response to comments contending that fragmented and inconclusive factual rights. As for the lack of high school the articles and studies they cite are old record to support their choice. The education on this subject, we have only and inadequately supported, they glibly majority fails to do so. Their rule is a few localized studies cited in a 1995 respond that the commenters ‘‘cite no patently arbitrary and capricious. journal article by a union attorney.184 more recent or better supported studies Executive Order 13496 With respect to the assumption that to the contrary,’’ as if opponents of the immigrants entering the work force, we proposed rule bear that burden. Of The majority mentions in passing have even less, only anecdotal accounts. course, it is the agency’s responsibility Executive Order 13496 186 and the DOL For that matter, beyond the cited journal to make factual findings that support its implementing regulation 187 mandating article, almost all supposed factual decision and those findings must be that Federal contractors post a notice to support for the premise that employees supported by substantial evidence that employees of NLRA rights that is in are generally unaware of their rights must examine the relevant data and most respects identical to the notice at comes in comments received from articulate a satisfactory explanation for issue here. Their consideration of this individuals, union organizers, attorneys its action. Burlington Truck Lines, 371 administrative action should have led representing unions, and immigrant U.S. at 167. them to the understanding that they lack rights and worker assistance Even more telling is the majority’s the authority to do what the President organizations agreeing, based on footnote observation that there is no real and DOL clearly could do to advance professed personal experience, that need to conduct a study of the extent of essentially the same policy choice. most employees (obviously not employees’ knowledge of NLRA rights The authority to require that including most of the employee because the notice posting rule would contractors agree to post an NLRA commenters) are unfamiliar with their be justified even if only 10 percent of employee rights notice as part of doing NLRA rights. There are, as well, the workforce lacked such knowledge. business with the Federal government anecdotal accounts and comments from This statement betrays the entire factual comes both from the President’s employers, employer associations and premise upon which the rulemaking authority as chief executive and the initiative was purportedly founded and specific grant of Congressional authority 184 Peter D. DeChiara, ‘‘The Right to Know: An reveals a predisposition to issue the rule in the Federal Property and Argument for Informing Employees of Their Rights regardless of the facts. This is patently Administrative Services Act, 40 U.S.C. under the National Labor Relations Act,’’ 32 Harv. ‘‘arbitrary and capricious.’’ 101 et seq. There was no need or J. on Legis. 431, at 436 and fn. 28 (1995). attempt to justify the promulgation of In the Notice of Proposed Rulemaking, the Even assuming, if we must, that there majority also relied on two articles by Professor is some factual basis for a concern that the notice-posting rule by relying on Charles J. Morris, a co-petitioner for notice-posting employees lack sufficient information evidence that employees lacked rulemaking: ‘‘Renaissance at the NLRB— about their NLRA rights, the majority knowledge of their rights. Moreover, in Opportunity and Prospect for Non-Legislative Procedural Reform at the Labor Board,’’ 23 Stetson also fails to provide a rational L. Rev. 101, 107 (1993); and ‘‘NLRB Protection in explanation for why that concern 185 Mayer, Gerald, ‘‘Union Membership Trends in the Nonunion Workplace: A Glimpse at a General dictates their choice made to address the United States’’ (2004). Federal Publications. Theory of Section 7 Conduct,’’ 137 U. Pa. L. Rev. Paper 174, Appendix A. http:// that concern. Why, for instance, was a _ 1673, 1675–1676 (1989). Professor Morris did not digitalcommons.ilr.cornell.edu/key workplace/. refer to any specific evidence supporting a belief noncompulsory information system, 186 74 FR 6107 (Feb. 4, 2009). that employees lack knowledge of their rights. primarily reliant on personal union 187 75 FR 28368 (May 20, 2011).

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the notice of a final rule, DOL rejected wherever possible, when drafting Board then multiplied this figure by commenters’ contentions that the regulations that will have a significant 2 hours to estimate the average costs for Executive Order and implementing impact on a substantial number of small employers to comply with this rule regulation were preempted by the entities. The focus of the RFA is to during the first year in which the rule Board’s jurisdiction under the Garmon ensure that agencies ‘‘review draft rules is in effect. Accordingly, this rule is doctrine.188 Necessarily, this meant that to assess and take appropriate account estimated to impose average costs of DOL believed that the rule requiring of the potential impact on small $64.40 per employer subject to the federal contractors to post the employee businesses, small governmental NLRA (2 hours × $32.20) during the first rights notice did not involve any rights jurisdictions, and small organizations, year.191 These costs will decrease protected by Section 7 of the Act, such as provided by the [RFA].’’ E.O. 13272, dramatically in subsequent years as a right to receive such information Sec. 1, 67 FR 53461 (‘‘Proper because the only employers affected from their employer, or conduct Consideration of Small Entities in will be those that did not previously prohibited by the Act, such as the Agency Rulemaking’’). However, an satisfy their posting requirements or that employer’s failure to provide such agency is not required to prepare a final have since expanded their facilities or information. regulatory flexibility analysis for a final established new ones. Because the final Not only does my colleagues’ rule if the agency head certifies that the rule will not require employers to post rulemaking action today contradict rule will not, if promulgated, have a the notice by email, instant messaging, DOL’s preemption analysis, but its flaws significant economic impact on a text messaging, and the like, the cost of are manifest in comparison to the DOL’s substantial number of small entities. 5 compliance should be, if anything, rule and the authority enabling it. U.S.C. 605(b). Based on the analysis somewhat less than the Board below, in which the Board has previously estimated. Conclusion189 estimated the financial burdens to According to the United States Census Surely, no one can seriously believe employers subject to the NLRA Bureau, there were approximately 6 that today’s rule is primarily intended to associated with complying with the million businesses with employees in inform employees of their Section 7 requirements contained in this final 2007. Of those, the SBA estimates that right to refrain from or to oppose rule, the Board has certified to the Chief all but about 18,300 were small organizational activities, collective Counsel for Advocacy of the Small businesses with fewer than 500 192 bargaining, and union representation. Business Administration (SBA) that this employees. This rule does not apply My colleagues seek through rule will not have a significant to employers that do not meet the promulgation of this rule to reverse the economic impact on a substantial Board’s jurisdictional requirements, but steady downward trend in union number of small entities. density among private sector employees The primary goal of this rule is business workers were $23.00. Table B–8. Accordingly, the Board multiplied that number by in the non-agricultural American notifying employees of their rights 1.4 to arrive at its estimate of $32.20 average hourly workforce. Theirs is a policy choice under the NLRA. This goal is achieved earnings, including fringe benefits.) In the NPRM, which they purport to effectuate with through the posting of notices by the Board estimated hourly earnings of $31.02, the force of law on several fronts in based on BLS data from January 2009. 75 FR 80415. employers subject to the NLRA of the The estimate has been updated to reflect increases rulemaking and in case-by-case rights of employees under the NLRA. in hourly earnings since that time. Those increases adjudication. In this instance, their The Board will make the notices have been relatively minor, and do not affect the action in declaring that employers available at no cost to employers; there Board’s conclusion that the economic impact of the violate the law by failing to inform rule will not be significant; see discussion below. are no information collection, record 191 The National Roofing Contractors Association employees of their Section 7 rights is keeping, or reporting requirements. asserts (without support) that ‘‘federal agencies both unauthorized and arbitrary and The Board estimates that in order to have a notoriously poor track record in estimating capricious. Regardless of the arguable comply with this rule, each employer the costs of new regulations on businesses’’; it merits of their policy choice or the therefore predicts that ‘‘the actual cost for many subject to the NLRA will spend a total employers could be considerably higher.’’ The broad scope of Chevron deference and of 2 hours during the first year in which Board recognizes that some employers, generally the Board’s rulemaking authority, I am the rule is in effect. This includes 30 firms with extensive and/or multiple facilities, may confident that a reviewing court will minutes for the employer to learn where incur initial compliance costs in excess of the soon rescue the Board from itself and Board’s estimate. For example, a company with and how to post the required notices, 30 multiple locations may require more than 30 restore the law to where it was before minutes to acquire the notices from the minutes to physically post the notices on all of its the sorcerer’s apprentice sent it askew. Board or its Web site, and 60 minutes various bulletin boards. The Board’s estimate, to post them physically and however, is an average for all employers; many V. Regulatory Procedures small employers, especially those with only one electronically, depending on where and facility and/or limited electronic communication A. Regulatory Flexibility Act how the employer customarily posts with employees, may incur lower compliance costs. The Regulatory Flexibility Act of 1980 notices to employees. The Board In this regard, however, contrary to numerous assumes that these activities will be comments, such as that of St Mar Enterprises, Inc., (RFA), 5 U.S.C. 601 et seq., requires the Board does not expect that the rule will be agencies promulgating final rules to performed by a professional or business ‘‘very burdensome’’ for businesses with more than prepare a final regulatory flexibility worker, who, according to Bureau of one facility. Normally, such firms should have to analysis and to develop alternatives Labor Statistics data, earned a total learn about the rule’s requirements and acquire the hourly wage of about $32.20 in March notices only once, no matter how many facilities are 190 involved. The same should be true for electronic 188 San Diego Bldg. Trades Council v. Garmon, 2011, including fringe benefits. The posting: downloading the notice and posting it on 359 U.S. 236, 244 (1959) an employer’s Web site normally should have to be 189 Because I find the rule is invalid, I find it 190 Source: U.S. Department of Labor, Bureau of done once for all facilities. Thus, the only unnecessary to comment on the content of the Labor Statistics, ‘‘Economic News Release,’’ Table additional costs involved for multi-facility firms notice or the consequences, other than finding an B–8, June 3, 2011 (available at http://www.bls.gov). should be those of physically posting the notices at unfair labor practice, if an employer fails to post the (The Board is administratively informed that BLS each facility. required notice. For the reasons stated in my estimates that fringe benefits are approximately 192 Source: SBA Office of Advocacy estimates dissenting opinion in J. Picini Flooring, 356 NLRB equal to 40 percent of hourly wages. Thus, to based on data from the U.S. Department of No. 9 (2010), I also disagree with the rule’s calculate total average hourly earnings, BLS Commerce, Bureau of the Census, and trends from requirement that certain employers must also multiplies average hourly wages by 1.4. In March, the U.S. Department of Labor, Bureau of Labor electronically distribute the notice. 2011, average hourly wages for professional and Statistics, Business Employment Dynamics.

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the Board does not have the means to an annual inflow or outflow across state several comments urge that small calculate the number of small lines of at least $50,000. Siemons employers be exempted from the rule, businesses within the Board’s Mailing Service, 122 NLRB 81 (1959). the Board remains persuaded, for the jurisdiction. Accordingly, the Board Given that the Board estimates that this reasons set forth in the NPRM, that such assumes for purposes of this analysis rule will cost, on average, $64.40, the an exemption is unwarranted. 195 that the great majority of the nearly 6 total cost for the smallest affected Some comments contend that, in million small businesses will be companies would be an amount equal to concluding that the proposed rule will affected, and further that this number is less than two-tenths of one percent of not have a significant impact on small a substantial number within the that required annual inflow or outflow employers, the Board understates the meaning of 5 U.S.C. 601. However, as (.13%). The Board concludes that such rule’s actual prospective costs. One discussed below, because the economic a small percentage is highly unlikely to comment, from Baker & Daniels LLP, impact on those employers is minimal, adversely affect a small business.193 argues that the Board improperly the Board concludes that, under 5 And, in the Board’s judgment, the social focuses solely on the cost of complying U.S.C. 605, the final rule will not have benefits of employees’ (and employers’) with the rule—i.e., of printing and a significant economic impact on any becoming familiar with employees’ posting the notice—and ignored the small employers. NLRA rights far outweigh the minimal ‘‘actual economic impact of the rule’s The RFA does not define ‘‘significant costs to employers of posting notices effect and purpose.’’ According to this economic impact.’’ 5 U.S.C. 601. In the informing employees of those rights.194 comment, it is predictable that, as more absence of specific definitions, ‘‘what is For all the foregoing reasons, the employees become aware of their NLRA ‘significant’ * * * will vary depending Board has concluded that the final rule rights, they will file more unfair labor on the problem that needs to be will not have a significant economic practice charges and elect unions to addressed, the rule’s requirements, and impact on a substantial number of small serve as their collective-bargaining the preliminary assessment of the rule’s entities. 5 U.S.C. 605. representatives. The comment further impact.’’ See A Guide for Government As discussed in the NPRM, because it asserts that the Board has ignored the Agencies: How to Comply with the assumes that a substantial number of ‘‘economic realities of unionization,’’ Regulatory Flexibility Act, Office of small businesses will be required to specifically that union wages are Advocacy, U.S. Small Business comply with the rule, the Board inflationary; that unions make business Administration at 17 (available at preliminarily considered alternatives less flexible, less competitive, and less http://www.sba.gov) (SBA Guide). As to that would minimize the impact of the profitable; and that unions cause job economic impact and whether it is rule, including a tiered approach for loss and stifle economic recovery from significant, one important indicator is small entities with only a few recessions. Accordingly, this comment the cost of compliance in relation to employees. However, as it also contends that ‘‘the Board’s RFA revenue of the entity or the percentage explained, the Board rejected those certification is invalid, and [that] the of profits affected. Id. at 17. More alternatives, concluding that a tiered Board must prepare an initial regulatory specifically, the criteria to be considered approach or an exemption for some flexibility analysis.’’ Numerous other are: small entities would substantially comments echo similar concerns, but • Whether the rule will lead to long- undermine the purpose of the rule without reference to the RFA. term insolvency, i.e., regulatory costs because so many employers would be The Board disagrees with the that significantly reduce profits; exempt under the SBA definitions. • comment submitted by Baker & Daniels Whether the rule will lead to short- Given the very small estimated cost of 196 term insolvency, i.e., increasing LLP. Section 605(b) of the RFA states compliance, it is possible that the that an agency need not prepare an operating expenses or new debt more burden on a small business of than cash reserves and cash flow can initial regulatory flexibility analysis if determining whether it fell into a the agency head certifies that the rule support, causing nonmarginal firms to particular tier might exceed the burden close; • of compliance. The Board further 195 Cass County Electric Cooperative says that, Whether the rule will have pointed out that Congress gave the after estimating the average cost of compliance, ‘‘the disproportionate effects, placing small Board very broad jurisdiction, with no NLRB quickly digresses into an attempt to estimate entities at a significant competitive the cost of the proposed rule on only small suggestion that it wanted to limit businesses.’’ The Board responds that in estimating disadvantage; and coverage of any part of the NLRA to • Whether the rule will result in the cost of the rule on small businesses, it was only larger employers. The Board also doing what the RFA explicitly requires (and that inefficiency, i.e., in social costs to small believes that employees of small focusing on small businesses, which comprise more entities that outweigh the social benefits than 99 percent of potentially affected firms, is employers have no less need of a Board resulting from the rule. Id. at 26. hardly a ‘‘digression’’). The comment also asserts notice than have employees of larger Applying these standards, the Board that the Board concluded ‘‘that the cost of employers. Finally, the Board’s estimating the implementation cost will likely concludes that the economic impact of jurisdictional standards mean that very exceed the cost of implementation, and thus is not its notice-posting rule on small small employers will not be covered by warranted. At best, this is a poor excuse to justify employers is not significant. The Board the rule.’’ This misstates the Board’s observation the rule in any case. 75 FR 80416. (A has determined that the average cost of that ‘‘Given the very small estimated cost of summary of the Board’s discretionary compliance, it is possible that the burden on a small complying with the rule in the first year jurisdictional standards appears in business of determining whether it fell into a for all employers subject to the NLRA § 104.204, below.) Thus, although particular tier might exceed the burden of will be $64.40. It is unlikely in the compliance.’’ This observation was one of the extreme that this minimal cost would reasons why the Board rejected a tiered approach 193 In reaching this conclusion, the Board believes to coverage for small entities, not an ‘‘excuse to lead to either the short- or long-term it is likely that employers that might otherwise be justify the rule.’’ 75 FR 80416. insolvency of any business entity, or significantly affected even by the low cost of 196 In any event, the comment from Baker & place small employers at a competitive compliance under this rule will not meet the Daniels LLP and related comments are difficult to disadvantage. Since this rule applies Board’s jurisdictional requirements, and square with the assertions made in numerous other consequently those employers will not be subject to comments that the notice posting is unnecessary only to organizations within the NLRB’s this rule. because employees are already well aware of their jurisdictional standards, the smallest 194 See further discussion in section II, subsection NLRA rights and have made informed decisions not employer subject to the rule must have C, Factual Support for the Rule, above. to join unions or seek union representation.

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will not have a significant economic to the rule’s projected compliance costs should not be necessary for employers, impact on a substantial number of small to small entities (none of which would small or large, to add human resources entities. 5 U.S.C. 605(b) (emphasis result from posting a workplace notice), staff, retain counsel, or resort to added). The Board understands the not the kinds of speculative and indirect litigation if they have questions ‘‘economic impact of * * * the rule’’ to economic impact that Baker & Daniels concerning whether the proposed rule refer to the costs to affected entities of LLC invokes.200 applies to them or about the complying with the rule, not to the Associated Builders and Contractors, requirements for technical compliance economic impact of a series of Inc. (ABC) and Retail Industry Leaders with the rule, including how the subsequent decisions made by Association (RILA) contend that the electronic posting provisions individual actors in the economy that Board’s RFA analysis fails to account for specifically affect their enterprises.202 are neither compelled by, nor the the costs of electronic notice posting, Such questions can be directed to the inevitable result of, the rule.197 Even if especially for employers that Board’s regional offices, either by more employees opt for union communicate with employees via telephone, personal visit, email, or representation after learning about their multiple electronic means. Both regular mail, and will be answered free rights, employers can avoid the adverse comments deplore what they consider of charge by representatives of the effects on business costs, flexibility, and to be the rule’s vague requirements in Board.203 profitability predicted by Baker & this respect. ABC argues that clear Cass County Electric Cooperative Daniels LLP and other commenters by guidance is needed, and that the Board argues that the Board failed to take into not agreeing to unions’ demands that should withdraw the electronic notice account legal expenses that employers might produce those effects.198 posting requirements until more will incur if they fail to ‘‘follow the The Board finds support for this view information can be gathered. RILA letter of the proposed rule.’’ The in the language of Section 603 of the asserts that ‘‘[d]eciphering and comment urges that the Board should RFA, which lists the items to be complying with the Board’s estimate the cost to businesses ‘‘should included in an initial regulatory requirements would impose significant they have to defend themselves against flexibility analysis if one is required. 5 legal and administrative costs and an unfair labor practice for failure to U.S.C. 603. Section 603(a) states only inevitably result [in] litigation as parties comply with the rule, no matter what that such analysis ‘‘shall describe the disagree about when a communication the circumstances for that failure might impact of the proposed rule on small is ‘customarily used,’ and whether and be,’’ presumably including failures to entities.’’ 5 U.S.C. 603(a). However, when employees need to be informed post the notice by employers that are Section 603(b) provides, as relevant through multiple communications.’’ unaware of the rule and inadvertent here, that ‘‘[e]ach initial regulatory Numerous comments assert that failures to comply with technical flexibility analysis * * * shall employers, especially small employers posting requirements. International contain—* * * that lack professional human resources Foodservice Distributors Association ‘‘(4) a description of the projected staff, will incur significant legal contends that the Board also should reporting, recordkeeping and other expenses as they attempt to comply have considered the costs of tolling the compliance requirements of the with the rule. For example, Fisher and statute of limitations when employers proposed rule, including an estimate of Phillips, a management law firm, urges fail to post the notice. However, the the classes of small entities which will that the cost of legal fees should be costs referred to in these comments are be subject to the requirement and the included in assessing the economic costs of not complying with the rule, not type of professional skills necessary for impact of the proposed rule: ‘‘[I]t might compliance costs. As stated above, for preparation of the report or record[.]’’ 5 be considered naı¨ve to assume that a RFA purposes, the relevant economic U.S.C. 603(b)(4) (emphasis added). The significant percentage of small analysis focuses on the costs of Small Business Administration cites, as employers would not seek the advice of complying with the rule.204 examples of ‘‘other compliance counsel, and it would be equally naı¨ve requirements,’’ to assume that a significant percentage rule’s electronic notice posting requirements; its of those newly-engaged lawyers could estimated average cost of $62.04 specifically (a) Capital costs for equipment needed to be retained for as little as $31.02/hour.’’ included such costs. 75 FR 80415. Although ABC meet the regulatory requirements; (b) costs of faults the Board for failing to issue a preliminary modifying existing processes and procedures Those comments are not persuasive. request for information (RFI) concerning the ways to comply with the proposed rule; (c) lost The choice to retain counsel is not a employers communicate with employees sales and profits resulting from the proposed requirement for complying with the electronically, the Board did ask for comments concerning its RFA certification in the NPRM, id. rule; (d) changes in market competition as a rule. This is not a complicated or at 80416. In this regard, ABC states only that ‘‘many result of the proposed rule and its impact on nuanced rule. The employer is only ABC member companies communicate with small entities or specific submarkets of small required to post a notice provided by employees through email or other electronic entities; (e) extra costs associated with the the Board in the same manner in which means,’’ which the Board expressly contemplated payment of taxes or fees associated with the that employer customarily posts notices in the NPRM, id. at 80413, and which is also the proposed rule; and (f) hiring employees Board’s practice with respect to communicating dedicated to compliance with regulatory to its employees. The Board has with its own employees. If ABC has more specific requirements.199 explained above what the rule’s information it has failed to provide it. In any event, electronic posting provisions require of the final rule will not require email or many other types of electronic notice. Thus, the ‘‘impact’’ on small entities employers in general, and it has referred to in Section 603(a) refers only 202 Association of Corporate Counsel contends simplified those provisions by that employers will have to modify their policies eliminating the requirement that notices and procedures manuals as a result of the rule. The 197 For RFA purposes, the relevant economic Board questions that contention, but even if some impact on small entities is the impact of be provided by email and many other 201 employers do take those steps, they would not be compliance with the rule. Mid-Tex Electric forms of electronic communication. It a cost of complying with the rule. Cooperative, Inc. v. FERC, 773 F.2d 327, 342 (D.C. 203 Fisher and Phillips also suggest that the Board Cir. 1985), cited in SBA Guide, above, at 77. 200 Baker & Daniels LLP cites no authority to failed to take into account the effect that the 198 NLRA Section 8(d) expressly states that the support its contention that the RFA is concerned proposed rule would have on the Board’s own case obligation to bargain in good faith ‘‘does not compel with costs other than the costs of compliance with intake and budget. The RFA, however, does not either party to agree to a proposal or require the the rule, and the Board is aware of none. require an estimate of the economic effects of making of a concession[.]’’ 29 U.S.C. 158(d). 201 Contrary to ABC’s and RILA’s assertions, the proposed rules on Federal agencies. 199 SBA Guide, above, at 34. Board did estimate the cost of complying with the 204 See fn. 197, above.

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Some comments assert that the notice is not defaced or torn down. The posting of the employee notice required content of the notice will prompt rule does not require, or even suggest, by § 104.202. As noted in § 104.202(e), employee questions, which managers that employers must spend thousands of the Board will make the notice and supervisors will have to answer, dollars to install tamper-proof bulletin available, and employers will be and be trained to answer, and that the boards or that employers must permitted to post copies of the notice Board failed to account for the cost of constantly monitor the notice.208 that are exact duplicates in content, such training and discussions in terms One comment contends that most size, format, and type size and style. of lost work time.205 Other comments small employers do not have 11 x 17- Under the regulations implementing the contend that employers will incur costs inch color printers, and therefore will PRA, ‘‘[t]he public disclosure of of opposing an increased number of have to have the posters printed information originally supplied by the union organizing campaigns.206 commercially at a cost that, alone, Federal government to [a] recipient for Relatedly, several comments state that assertedly will exceed the Board’s the purpose of disclosure to the public’’ employers should be allowed to, and/or estimate of the cost of the rule. The is not considered a ‘‘collection of will respond to the notice by informing Board understands the concerns of this information’’ under the Act. See 5 CFR employees of aspects of unionization small employer. The Board points out 1320.3(c)(2). Therefore, contrary to and collective bargaining that are not that it will furnish a reasonable number several comments, the posting covered by the notice; some suggest that of copies of the notice free of charge to requirement is not subject to the employers may post their own notices any requesting employer. Moreover, as PRA.210 presenting their point of view.207 (A few explained above, employers may The Board received no comments comments, by contrast, protest that reproduce the notice in black-and-white suggesting that the PRA covers the costs employers will be prohibited from and may print the notice on two to the Federal government of presenting their side of the issues raised standard-sized, 8.5 x 11-inch pages and administering the regulations by the posting of notices.) The Board tape or bind them together, rather than established by the proposed rule. responds that any costs that employers having them printed commercially. Therefore, the NPRM’s discussion of may incur in responding to employee A number of comments argue that the this issue stands. questions, in setting forth the rule will lead to workplace conflict. For Accordingly, this rule does not employers’ views on unions and example, the comment of Wiseda contain information collection collective bargaining, or in opposing Corporation contains the following: requirements that require approval by union organizing efforts will be incurred Unnecessary Confusion and Conflict in the the Office of Management and Budget entirely at the employers’ own volition; Workplace. The labor law terms and under the PRA (44 U.S.C. 3507 et seq.). they are not a cost of complying with industrial union language of the proposed 211 the rule. notice (such as hiring hall and concerted C. Congressional Review Act (CRA) As discussed above, many comments activity) present an unclear and adversarial This rule is a ‘‘major rule’’ as defined express concerns that union supporters picture to employees. Most non-union by Section 804(2) of the Small Business will tear down the notices in order to employers like us, who wish to remain non- union, encourage cooperative problem Regulatory Enforcement Fairness Act of expose employers to 8(a)(1) liability for solving. In a modern non-union workplace, 1996 (Congressional Review Act), failing to post the notices. Some of these to require such a poster encouraging strikes because it will have an effect on the comments also contend that, as a result, and restroom leaflets is disrespectful of the economy of more than $100 million, at employers will have to spend hard work and good intentions of employers, least during the year it takes effect. 5 considerable time monitoring the management, and employees. The proposed U.S.C. 804(2)(A).212 Accordingly, the notices to make sure that they are not poster would exist alongside other company notices on problem-solving, respect for torn down, or incur additional costs of 210 The California Chamber of Commerce and the installing tamper-proof bulletin boards. others, resolving harassment issues, etc., and National Council of Agricultural Employers dispute would clearly be out of character and this conclusion. They assert that the PRA One commenter predicts that his inappropriate. (Emphasis in original.) employer will have to spend $20,000 for distinguishes between the ‘‘agencies’’ to which it Another comment puts it more bluntly: applies and the ‘‘Federal government,’’ and such bulletin boards at a single facility, therefore that the exemption provided in 5 CFR or a total of $100,000 at all of its ‘‘The notice as proposed is more of an 1320.3(c)(2) applies only to information supplied by facilities, and even then will have to invitation to cause employee/employer ‘‘the actual Federal government,’’ not to information spend two hours each month disputes rather than an explanation of supplied by a Federal agency such as the Board. employee rights.’’ The Board’s response The flaw in this argument is that there is no such monitoring the postings. For the reasons legal entity as ‘‘the [actual] Federal government.’’ discussed above, the Board is not is that the ill effects predicted in these What is commonly referred to as ‘‘the Federal convinced at this time that the problem comments, like the predicted adverse government’’ is a collection of the three branches of posters being torn down is anything effects of unionization discussed above, of the United States government, including the are not costs of compliance with the departments of the executive branch, and the more than speculative, and accordingly various independent agencies, including the Board. is inclined to discount these predictions rule, but of employees’ learning about If ‘‘the Federal government’’ can be said to act at substantially. In any event, the rule their workplace rights. In addition, all, it can do so only through one or more of those requires only that employers ‘‘take Congress, not the Board, created the entities—in this instance, the Board—and that is subject rights and did so after finding undoubtedly the meaning that the drafters of 5 CFR reasonable steps’’—not every 1320(c)(2) meant to convey. conceivable step—to ensure that the that vesting employees with these rights 211 5 U.S.C. 801 et seq. would reduce industrial strife. 212 A rule is a ‘‘major rule’’ for CRA purposes if 205 See, e.g., comments of Cass County Electric 209 it will (A) Have an annual effect on the economy Cooperative and Baker & McKenzie. The latter B. Paperwork Reduction Act (PRA) of $100 million or more; (B) cause a major increase estimates that each private sector employee will The final rule imposes certain in costs or prices for consumers, individual spend at least an hour attending meetings minimal burdens associated with the industries, government agencies, or geographic concerning the content of the notice, and that the regions; or (C) result in significant adverse effects cost to the economy in terms of lost employee work on competition, employment, investment, time will be $3.5 billion. 208 Contrary to one comment’s suggestion, no productivity, innovation, or the ability of United 206 See, e.g., comment of Dr. Pepper Snapple employer will be ‘‘bankrupted’’ by fines imposed if States-based enterprises to compete with foreign- Group. the notice is torn down. As explained above, the based enterprises in domestic and export markets. 207 See, e.g., comments of Metro Toyota and Board does not have the authority to impose fines. 5 U.S.C. 804. The notice-posting rule is a ‘‘major Capital Associated Industries, Inc. 209 44 U.S.C. 3501 et seq. Continued

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effective date of the rule is 75 days after Authority: National Labor Relations Act partnerships, associations, corporations, publication in the Federal Register.213 (NLRA), Section 6, 29 U.S.C. 156; legal representatives, trustees, trustees Administrative Procedure Act, 5 U.S.C. 553. in cases under title 11 of the United List of Subjects in 29 CFR Part 104 States Code, or receivers. 29 U.S.C. Subpart A—Definitions, Requirements Administrative practice and 152(1). for Employee Notice, and Exceptions procedure, Employee rights, Labor Rules, regulations, and orders, as used and Exemptions unions. in § 104.202, means rules, regulations, Text of Final Rule § 104.201 What definitions apply to this and relevant orders issued by the Board part? pursuant to this part. Accordingly, a new part 104 is added Supervisor means any individual to 29 CFR chapter 1 to read as follows: Employee includes any employee, and is not limited to the employees of a having authority, in the interest of the PART 104—NOTIFICATION OF particular employer, unless the NLRA employer, to hire, transfer, suspend, lay EMPLOYEE RIGHTS; OBLIGATIONS explicitly states otherwise. The term off, recall, promote, discharge, assign, OF EMPLOYERS includes anyone whose work has ceased reward, or discipline other employees, because of, or in connection with, any or responsibly to direct them, or to Subpart A—Definitions, Requirements for current labor dispute or because of any adjust their grievances, or effectively to Employee Notice, and Exceptions and unfair labor practice, and who has not recommend such action, if in Exemptions obtained any other regular and connection with the foregoing the Sec. substantially equivalent employment. exercise of such authority is not of a 104.201 What definitions apply to this part? However, it does not include merely routine or clerical nature, but 104.202 What employee notice must requires the use of independent employers subject to the NLRA post in agricultural laborers, supervisors, or independent contractors, or anyone judgment. 29 U.S.C. 152(11). the workplace? Unfair labor practice means any 104.203 Are Federal contractors covered employed in the domestic service of any under this part? family or person at his home, or by his unfair labor practice listed in section 8 104.204 What entities are not subject to this parent or spouse, or by an employer of the National Labor Relations Act, 29 part? subject to the Railway Labor Act (45 U.S.C. 158. 29 U.S.C. 152(8). Appendix to Subpart A—Text of Employee U.S.C. 151 et seq.), or by any other Union means a labor organization as Notice person who is not an employer as defined above. Subpart B—General Enforcement and defined in the NLRA. 29 U.S.C. 152(3). § 104.202 What employee notice must Complaint Procedures Employee notice means the notice set employers subject to the NLRA post in the 104.210 How will the Board determine forth in the Appendix to Subpart A of workplace? whether an employer is in compliance this part that employers subject to the (a) Posting of employee notice. All with this part? NLRA must post pursuant to this part. employers subject to the NLRA must 104.211 What are the procedures for filing Employer includes any person acting a charge? post notices to employees, in 104.212 What are the procedures to be as an agent of an employer, directly or conspicuous places, informing them of followed when a charge is filed alleging indirectly. The term does not include their NLRA rights, together with Board that an employer has failed to post the the United States or any wholly owned contact information and information required employee notice? Government corporation, or any Federal concerning basic enforcement 104.213 What remedies are available to cure Reserve Bank, or any State or political procedures, in the language set forth in a failure to post the employee notice? subdivision thereof, or any person the Appendix to Subpart A of this part. 104.214 How might other Board subject to the Railway Labor Act, or any (b) Size and form requirements. The proceedings be affected by failure to post labor organization (other than when the employee notice? notice to employees shall be at least 11 acting as an employer), or anyone acting inches by 17 inches in size, and in such Subpart C—Ancillary Matters in the capacity of officer or agent of format, type size, and style as the Board 104.220 What other provisions apply to this such labor organization. 29 U.S.C. shall prescribe. If an employer chooses part? 152(2). Further, the term ‘‘employer’’ to print the notice after downloading it does not include entities over which the from the Board’s Web site, the printed rule’’ because, as explained in the discussion of the Board has been found not to have notice shall be at least 11 inches by 17 Regulatory Flexibility Act above, the Board has jurisdiction, or over which the Board estimated that the average cost of compliance with inches in size. the rule will be approximately $64.40 per affected has chosen through regulation or (c) Adaptation of language. The employer; thus, because there are some 6 million adjudication not to assert jurisdiction. National Labor Relations Board may employers that could potentially be affected by the Labor organization means any find that an Act of Congress, rule, the total cost to the economy of compliance organization of any kind, or any agency clarification of existing law by the with the rule will be approximately $386.4 million. As further explained, nearly all of that cost will be or employee representation committee courts or the Board, or other incurred during the year in which the rule takes or plan, in which employees participate circumstances make modification of the effect; in subsequent years, the only costs of and which exists for the purpose, in employee notice necessary to achieve compliance will be those incurred by employers whole or in part, of dealing with the purposes of this part. In such that either open new facilities or expand existing ones, and those that for one reason or another fail employers concerning grievances, labor circumstances, the Board will promptly to comply with the rule during the first year. The disputes, wages, rates of pay, hours of issue rules, regulations, or orders as are Board therefore expects that the costs of compliance employment, or conditions of work. 29 needed to ensure that all future will be far less than $100 million in the second and U.S.C. 152(5). employee notices contain appropriate subsequent years. The Board is confident that the rule will have none of the effects enumerated in 5 National Labor Relations Board language to achieve the purposes of this U.S.C. 804(2)(B) and (C) above. (Board) means the National Labor part. 213 The Board finds unpersuasive the suggestions Relations Board provided for in section (d) Physical posting of employee in several comments that the effective date of the 3 of the National Labor Relations Act, 29 notice. The employee notice must be rule be postponed to as late as April 15, 2012. The Board finds nothing in the requirements of the rule U.S.C. 153. 29 U.S.C. 152(10). posted in conspicuous places where or in the comments received that would warrant Person includes one or more they are readily seen by employees, postponing the effective date. individuals, labor organizations, including all places where notices to

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employees concerning personnel rules (f) Electronic posting of employee (1) The United States or any wholly or policies are customarily posted. notice. (1) In addition to posting the owned Government corporation; Where 20 percent or more of an required notice physically, an employer (2) Any Federal Reserve Bank; employer’s workforce is not proficient must also post the required notice on an (3) Any State or political subdivision in English and speaks a language other intranet or internet site if the employer thereof; than English, the employer must post customarily communicates with its (4) Any person subject to the Railway the notice in the language employees employees about personnel rules or Labor Act; speak. If an employer’s workforce policies by such means. An employer (5) Any labor organization (other than includes two or more groups that customarily posts notices to when acting as an employer); or constituting at least 20 percent of the employees about personnel rules or (6) Anyone acting in the capacity of workforce who speak different policies on an intranet or internet site officer or agent of such labor languages, the employer must either will satisfy the electronic posting organization. physically post the notice in each of requirement by displaying (b) In addition, employers employing those languages or, at the employer’s prominently—i.e., no less prominently exclusively workers who are excluded option, post the notice in the language than other notices to employees—on from the definition of ‘‘employee’’ spoken by the largest group of such a site either an exact copy of the under § 104.201 are not covered by the employees and provide each employee poster, downloaded from the Board’s requirements of this part. in each of the other language groups a Web site, or a link to the Board’s Web (c) This part does not apply to entities copy of the notice in the appropriate site that contains the poster. The link to over which the Board has been found language. If an employer requests from the Board’s Web site must read, not to have jurisdiction, or over which the Board a notice in a language in ‘‘Employee Rights under the National the Board has chosen through regulation which it is not available, the requesting Labor Relations Act.’’ or adjudication not to assert employer will not be liable for non- (2) Where 20 percent or more of an jurisdiction. compliance with the rule until the employer’s workforce is not proficient (d)(1) This part does not apply to notice becomes available in that in English and speaks a language other entities whose impact on interstate language. An employer must take than English, the employer must commerce, although more than de reasonable steps to ensure that the provide notice as required in paragraph minimis, is so slight that they do not notice is not altered, defaced, covered (f)(1) of this section in the language the meet the Board’s discretionary by any other material, or otherwise employees speak. If an employer’s jurisdiction standards. The most rendered unreadable. workforce includes two or more groups commonly applicable standards are: (e) Obtaining a poster with the constituting at least 20 percent of the (i) The retail standard, which applies employee notice. A poster with the workforce who speak different to employers in retail businesses, required employee notice, including a languages, the employer must provide including home construction. The Board poster with the employee notice the notice in each such language. The will take jurisdiction over any such translated into languages other than Board will provide translations of the employer that has a gross annual English, will be printed by the Board, link to the Board’s Web site for any volume of business of $500,000 or more. and may be obtained from the Board’s employer that must or wishes to display (ii) The nonretail standard, which office, 1099 14th Street, NW., the link on its Web site. If an employer applies to most other employers. It is Washington, DC 20570, or from any of requests from the Board a notice in a based either on the amount of goods the Board’s regional, subregional, or language in which it is not available, the sold or services provided by the resident offices. Addresses and requesting employer will not be liable employer out of state (called ‘‘outflow’’) telephone numbers of those offices may for non-compliance with the rule until or goods or services purchased by the be found on the Board’s Web site at the notice becomes available in that employer from out of state (called http://www.nlrb.gov. A copy of the language. ‘‘inflow’’). The Board will take poster in English and in languages other jurisdiction over any employer with an than English may also be downloaded § 104.203 Are Federal contractors covered annual inflow or outflow of at least from the Board’s Web site at http:// under this part? $50,000. Outflow can be either direct— www.nlrb.gov. Employers also may Yes, Federal contractors are covered. to out-of-state purchasers—or indirect— reproduce and use copies of the Board’s However, contractors may comply with to purchasers that meet other official poster, provided that the copies the provisions of this part by posting the jurisdictional standards. Inflow can also duplicate the official poster in size, notices to employees required under the be direct—purchased directly from out content, format, and size and style of Department of Labor’s notice-posting of state—or indirect—purchased from type. In addition, employers may use rule, 29 CFR part 471. sellers within the state that purchased commercial services to provide the them from out-of-state sellers. employee notice poster consolidated § 104.204 What entities are not subject to (2) There are other standards for onto one poster with other Federally this part? miscellaneous categories of employers. mandated labor and employment (a) The following entities are These standards are based on the notices, so long as the consolidation excluded from the definition of employer’s gross annual volume of does not alter the size, content, format, ‘‘employer’’ under the National Labor business unless stated otherwise. These or size and style of type of the poster Relations Act and are not subject to the standards are listed in the Table to this provided by the Board. requirements of this part: section.

TABLE TO § 104.204

Employer category Jurisdictional standard

Amusement industry ...... $500,000. Apartment houses, condominiums, cooperatives ...... $500,000. Architects ...... Nonretail standard.

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TABLE TO § 104.204—Continued

Employer category Jurisdictional standard

Art museums, cultural centers, libraries ...... $1 million. Bandleaders ...... Retail/nonretail (depends on customer). Cemeteries ...... $500,000. Colleges, universities, other private schools ...... $1 million. Communications (radio, TV, cable, telephone, telegraph) ...... $100,000. Credit unions ...... Either retail or nonretail standard. Day care centers ...... $250,000. Gaming industry ...... $500,000. Health care institutions: Nursing homes, visiting nurses associations ...... $100,000. Hospitals, blood banks, other health care facilities (including doctors’ and dentists’ offices) ..... $250,000. Hotels and motels ...... $500,000. Instrumentalities of interstate commerce ...... $50,000. Labor organizations (as employers) ...... Nonretail standard. Law firms; legal service organizations ...... $250,000. Newspapers (with interstate contacts) ...... $200,000. Nonprofit charitable institutions ...... Depends on the entity’s substantive pur- pose. Office buildings; shopping centers ...... $100,000. Private clubs ...... $500,000. Public utilities ...... $250,000 or nonretail standard. Restaurants ...... $500,000. Social services organizations ...... $250,000. Symphony orchestras ...... $1 million. Taxicabs ...... $500,000. Transit systems ...... $250,000.

(3) If an employer can be classified misconduct. This Notice gives you general during non-work time, in non-work areas, under more than one category, the information about your rights, and about the such as parking lots or break rooms. • Board will assert jurisdiction if the obligations of employers and unions under Question you about your union support employer meets the jurisdictional the NLRA. Contact the National Labor or activities in a manner that discourages you from engaging in that activity. standard of any of those categories. Relations Board (NLRB), the Federal agency that investigates and resolves complaints • Fire, demote, or transfer you, or reduce (4) There are a few employer your hours or change your shift, or otherwise categories without specific under the NLRA, using the contact information supplied below, if you have any take adverse action against you, or threaten jurisdictional standards: questions about specific rights that may to take any of these actions, because you join (i) Enterprises whose operations have apply in your particular workplace. or support a union, or because you engage in a substantial effect on national defense ‘‘Under the NLRA, you have the right to: concerted activity for mutual aid and or that receive large amounts of Federal • Organize a union to negotiate with your protection, or because you choose not to funds engage in any such activity. employer concerning your wages, hours, and • (ii) Enterprises in the District of other terms and conditions of employment. Threaten to close your workplace if • workers choose a union to represent them. Columbia Form, join or assist a union. • (iii) Financial information • Bargain collectively through Promise or grant promotions, pay raises, or other benefits to discourage or encourage organizations and accounting firms representatives of employees’ own choosing union support. (iv) Professional sports for a contract with your employer setting • Prohibit you from wearing union hats, your wages, benefits, hours, and other (v) Stock brokerage firms buttons, t-shirts, and pins in the workplace working conditions. (vi) U. S. Postal Service except under special circumstances. • Discuss your wages and benefits and (5) A more complete discussion of the • Spy on or videotape peaceful union Board’s jurisdictional standards may be other terms and conditions of employment or activities and gatherings or pretend to do so. found in An Outline of Law and union organizing with your co-workers or a ‘‘Under the NLRA, it is illegal for a union union. Procedure in Representation Cases, • or for the union that represents you in Chapter 1, found on the Board’s Web Take action with one or more co-workers bargaining with your employer to: site, http://www.nlrb.gov. to improve your working conditions by, • Threaten or coerce you in order to gain among other means, raising work-related (e) This part does not apply to the your support for the union. complaints directly with your employer or • United States Postal Service. Refuse to process a grievance because with a government agency, and seeking help you have criticized union officials or because Appendix to Subpart A—Text of from a union. you are not a member of the union. • Employee Notice Strike and picket, depending on the • Use or maintain discriminatory purpose or means of the strike or the standards or procedures in making job ‘‘EMPLOYEE RIGHTS UNDER THE picketing. referrals from a hiring hall. NATIONAL LABOR RELATIONS ACT • Choose not to do any of these activities, • Cause or attempt to cause an employer The National Labor Relations Act (NLRA) including joining or remaining a member of to discriminate against you because of your guarantees the right of employees to organize a union. union-related activity. and bargain collectively with their ‘‘Under the NLRA, it is illegal for your • Take adverse action against you because employers, and to engage in other protected employer to: you have not joined or do not support the concerted activity or to refrain from engaging • Prohibit you from talking about or union. in any of the above activity. Employees soliciting for a union during non-work time, ‘‘If you and your co-workers select a union covered by the NLRA* are protected from such as before or after work or during break to act as your collective bargaining certain types of employer and union times; or from distributing union literature representative, your employer and the union

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are required to bargain in good faith in a practices, and for remedying conduct § 104.213 What remedies are available to genuine effort to reach a written, binding that the Board finds to be unlawful. See cure a failure to post the employee notice? agreement setting your terms and conditions NLRA Sections 10–11, 29 U.S.C. 160– (a) If the Board finds that the of employment. The union is required to respondent employer has failed to post fairly represent you in bargaining and 61, and 29 CFR part 102, subpart B. enforcing the agreement. the required employee notices as § 104.211 What are the procedures for alleged, the respondent will be ordered ‘‘Illegal conduct will not be permitted. If filing a charge? you believe your rights or the rights of others to cease and desist from the unlawful have been violated, you should contact the (a) Filing charges. Any person (other conduct and post the required employee NLRB promptly to protect your rights, than Board personnel) may file a charge notice, as well as a remedial notice. In generally within six months of the unlawful with the Board alleging that an some instances additional remedies may activity. You may inquire about possible employer has failed to post the be appropriately invoked in keeping violations without your employer or anyone employee notice as required by this with the Board’s remedial authority. else being informed of the inquiry. Charges (b) Any employer that threatens or may be filed by any person and need not be part. A charge should be filed with the filed by the employee directly affected by the Regional Director of the Region in retaliates against an employee for filing violation. The NLRB may order an employer which the alleged failure to post the charges or testifying at a hearing to rehire a worker fired in violation of the required notice is occurring. concerning alleged violations of the law and to pay lost wages and benefits, and (b) Contents of charges. The charge notice-posting requirement may be may order an employer or union to cease found to have committed an unfair labor violating the law. Employees should seek must be in writing and signed, and must be sworn to before a Board agent, notary practice. See NLRA Section 8(a)(1) and assistance from the nearest regional NLRB 8(a)(4), 29 U.S.C. 158(a)(1), (4). office, which can be found on the Agency’s public, or other person authorized to Web site: http://www.nlrb.gov. administer oaths or take § 104.214 How might other Board You can also contact the NLRB by calling acknowledgements, or contain a proceedings be affected by failure to post toll-free: 1–866–667–NLRB (6572) or (TTY) declaration by the person signing it, the employee notice? 1–866–315–NLRB (1–866–315–6572) for under penalty of perjury, that its (a) Tolling of statute of limitations. hearing impaired. contents are true and correct. The When an employee files an unfair labor If you do not speak or understand English well, you may obtain a translation of this charge must include: practice charge, the Board may find it notice from the NLRB’s Web site or by calling (1) The charging party’s full name and appropriate to excuse the employee the toll-free numbers listed above. address; from the requirement that charges be ‘‘*The National Labor Relations Act covers (2) If the charge is filed by a union, filed within six months after the most private-sector employers. Excluded the full name and address of any occurrence of the allegedly unlawful from coverage under the NLRA are public- conduct if the employer has failed to sector employees, agricultural and domestic national or international union of which it is an affiliate or constituent unit; post the required employee notice workers, independent contractors, workers unless the employee has received actual employed by a parent or spouse, employees (3) The full name and address of the of air and rail carriers covered by the Railway or constructive notice that the conduct employer alleged to have violated this complained of is unlawful. See NLRA Labor Act, and supervisors (although part; and supervisors that have been discriminated Section 10(b), 29 U.S.C. 160(b). against for refusing to violate the NLRA may (4) A clear and concise statement of (b) Noncompliance as evidence of be covered). the facts constituting the alleged unfair unlawful motive. The Board may ‘‘This is an official Government Notice and labor practice. consider a knowing and willful refusal must not be defaced by anyone.’’ to comply with the requirement to post § 104.212 What are the procedures to be the employee notice as evidence of Subpart B—General Enforcement and followed when a charge is filed alleging that unlawful motive in a case in which Complaint Procedures an employer has failed to post the required employee notice? motive is an issue. § 104.210 How will the Board determine whether an employer is in compliance with (a) When a charge is filed with the Subpart C—Ancillary Matters this part? Board under this section, the Regional Director will investigate the allegations § 104.220 What other provisions apply to The Board has determined that this part? employees must be aware of their NLRA of the charge. If it appears that the allegations are true, the Regional (a) The regulations in this part do not rights in order to exercise those rights modify or affect the interpretation of effectively. Employers subject to this Director will make reasonable efforts to persuade the respondent employer to any other NLRB regulations or policy. rule are required to post the employee (b)(1) This subpart does not impair or notice to inform employees of their post the required employee notice expeditiously. If the employer does so, otherwise affect: rights. Failure to post the employee (i) Authority granted by law to a the Board expects that there will rarely notice may be found to interfere with, department, agency, or the head thereof; be a need for further administrative restrain, or coerce employees in the or exercise of the rights guaranteed by proceedings. (ii) Functions of the Director of the NLRA Section 7, 29 U.S.C. 157, in (b) If an alleged violation cannot be Office of Management and Budget violation of NLRA Section 8(a)(1), 29 resolved informally, the Regional relating to budgetary, administrative, or U.S.C. 158(a)(1). Director may issue a formal complaint legislative proposals. Normally, the Board will determine against the respondent employer, (2) This subpart must be implemented whether an employer is in compliance alleging a violation of the notice-posting consistent with applicable law and when a person files an unfair labor requirement and scheduling a hearing subject to the availability of practice charge alleging that the before an administrative law judge. appropriations. employer has failed to post the After a complaint issues, the matter will (c) This part creates no right or employee notice required under this be adjudicated in keeping with the benefit, substantive or procedural, part. Filing a charge sets in motion the Board’s customary procedures. See enforceable at law or in equity by any Board’s procedures for investigating and NLRA Sections 10 and 11, 29 U.S.C. party against the United States, its adjudicating alleged unfair labor 160, 161; 29 CFR part 102, subpart B. departments, agencies, or entities, its

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officers, employees, or agents, or any Signed in Washington, DC, August 22, other person. 2011. Wilma B. Liebman, Chairman. [FR Doc. 2011–21724 Filed 8–25–11; 8:45 am] BILLING CODE 7545–01–P

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Part III

Department of the Interior

Fish and Wildlife Service 50 CFR Part 20 Migratory Bird Hunting; Final Frameworks for Early-Season Migratory Bird Hunting Regulations; Final Rule

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DEPARTMENT OF THE INTERIOR also identified in the April 8 proposed information on methodologies and rule. Further, we explained that all results, is available at the address Fish and Wildlife Service sections of subsequent documents indicated under FOR FURTHER outlining hunting frameworks and INFORMATION CONTACT or from our Web 50 CFR Part 20 guidelines were organized under site at http://www.fws.gov/ [Docket No. FWS–R9–MB–2011–0014; numbered headings. Subsequent migratorybirds/ 91200–1231–9BPP–L2] documents will refer only to numbered NewsPublicationsReports.html. items requiring attention. Therefore, it is Review of Public Comments RIN 1018–AX34 important to note that we omit those items requiring no attention, and The preliminary proposed rulemaking Migratory Bird Hunting; Final remaining numbered items might be (April 8 Federal Register) opened the Frameworks for Early-Season discontinuous or appear incomplete. public comment period for migratory Migratory Bird Hunting Regulations On June 22, 2011, we published in the game bird hunting regulations and AGENCY: Fish and Wildlife Service, Federal Register (76 FR 36508) a second announced the proposed regulatory Interior. document providing supplemental alternatives for the 2011–12 duck hunting season. Comments concerning ACTION: Final rule. proposals for early- and late-season migratory bird hunting regulations. The early-season issues and the proposed SUMMARY: This rule prescribes final June 22 supplement also provided alternatives are summarized below and early-season frameworks from which the information on the 2011–12 regulatory numbered in the order used in the April States, Puerto Rico, and the Virgin schedule and announced the Service 8 Federal Register document. Only the Islands may select season dates, limits, Regulations Committee (SRC) and numbered items pertaining to early- and other options for the 2011–12 summer Flyway Council meetings. seasons issues and the proposed migratory bird hunting seasons. Early On June 22 and 23, 2011, we held regulatory alternatives for which we seasons are those that generally open open meetings with the Flyway Council received written comments are prior to October 1, and include seasons Consultants where the participants included. Consequently, the issues do in Alaska, Hawaii, Puerto Rico, and the reviewed information on the current not follow in consecutive numerical or Virgin Islands. The effect of this final status of migratory shore and upland alphabetical order. rule is to facilitate the selection of game birds and developed We received recommendations from hunting seasons by the States and recommendations for the 2011–12 all four Flyway Councils. Some Territories to further the annual regulations for these species plus recommendations supported establishment of the early-season regulations for migratory game birds in continuation of last year’s frameworks. migratory bird hunting regulations. Alaska, Puerto Rico, and the Virgin Due to the comprehensive nature of the annual review of the frameworks DATES: This rule takes effect on August Islands, special September waterfowl performed by the Councils, support for 30, 2011. seasons in designated States, special sea duck seasons in the Atlantic Flyway, continuation of last year’s frameworks is ADDRESSES: States and Territories and extended falconry seasons. In assumed for items for which no should send their season selections to: addition, we reviewed and discussed recommendations were received. Chief, Division of Migratory Bird preliminary information on the status of Council recommendations for changes Management, U.S. Fish and Wildlife waterfowl as it relates to the in the frameworks are summarized Service, ms MBSP–4107–ARLSQ, 1849 development and selection of the below. C Street, NW., Washington, DC 20240. regulatory packages for the 2011–12 You may inspect comments during General regular waterfowl seasons. normal business hours at the Service’s On July 26, 2011, we published in the Written Comments: An individual office in room 4107, 4501 N. Fairfax Federal Register (76 FR 44730) a third commenter protested the entire Drive, Arlington, Virginia, or at http:// document specifically dealing with the migratory bird hunting regulations www.regulations.gov at Docket No. proposed frameworks for early-season process, the killing of all migratory FWS–R9–MB–2011–0014. regulations. We published the proposed birds, and the lack of accepting FOR FURTHER INFORMATION CONTACT: Ron frameworks for late-season regulations electronic public comments. W. Kokel, U.S. Fish and Wildlife (primarily hunting seasons that start Service Response: Our long-term Service, Department of the Interior, MS after October 1 and most waterfowl objectives continue to include providing MBSP–4107–ARLSQ, 1849 C Street, seasons not already established) in an opportunities to harvest portions of NW., Washington, DC 20240; (703) 358– August 26, 2011, Federal Register. certain migratory game bird populations 1714. This document is the fifth in a series and to limit harvests to levels SUPPLEMENTARY INFORMATION: of proposed, supplemental, and final compatible with each population’s rulemaking documents. It establishes ability to maintain healthy, viable Regulations Schedule for 2011 final frameworks from which States may numbers. Having taken into account the On April 8, 2011, we published in the select season dates, shooting hours, and zones of temperature and the Federal Register (76 FR 19876) a daily bag and possession limits for the distribution, abundance, economic proposal to amend 50 CFR part 20. The 2011–12 season. These selections will value, breeding habits, and times and proposal provided a background and be published in the Federal Register as lines of flight of migratory birds, we overview of the migratory bird hunting amendments to §§ 20.101 through believe that the hunting seasons regulations process, and addressed the 20.107, and § 20.109 of title 50 CFR part provided for herein are compatible with establishment of seasons, limits, and 20. the current status of migratory bird other regulations for hunting migratory populations and long-term population game birds under §§ 20.101 through Population Status and Harvest goals. Additionally, we are obligated to, 20.107, 20.109, and 20.110 of subpart K. Information on the status of waterfowl and do, give serious consideration to all Major steps in the 2011–12 regulatory and information on the status and information received as public cycle relating to open public meetings harvest of migratory shore and upland comment. While there are problems and Federal Register notifications were game birds, including detailed inherent with any type of representative

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management of public-trust resources, waterfowl and other natural resources, The Central Flyway Council we believe that the Flyway-Council to encourage youngsters and adults to recommended that we increase the daily system of migratory bird management experience the outdoors together, and to bag limit framework from five to eight has been a longstanding example of contribute to the long-term conservation for North Dakota during the special State-Federal cooperative management of the migratory bird resource. We early Canada goose hunting season in since its establishment in 1952. stated then that we viewed the special September. However, as always, we continue to youth hunting day as a unique The Pacific Flyway Council seek new ways to streamline and educational opportunity, above and recommended increasing the daily bag improve the process. beyond the regular season, which helps limit in the Pacific Flyway portion of Regarding the comment concerning ensure high-quality learning Colorado from three geese to four geese, our acceptance, or lack thereof, of experiences for those youth indicating and increasing the possession limit from electronic public comments, we do an interest in hunting. We further six to eight birds during the special accept electronic comments filed believed that the youth hunting day September season. through the official Federal would help develop a conservation Service Response: We agree with the eRulemaking portal (http:// ethic in our youth and was consistent Atlantic Flyway Council’s www.regulations.gov). Public comment with the Service’s responsibility to recommendation that Delaware’s methods are identified and listed above foster an appreciation for our nation’s September Canada goose season become under ADDRESSES. valuable wildlife resources. However, operational. As the Council notes in 1. Ducks there have been few attempts to their recommendation, resident Canada determine whether youth hunts have Categories used to discuss issues geese remain overabundant in many achieved their intended purpose. Thus, areas of the Flyway. The current related to duck harvest management are: we request that when the Human (A) General Harvest Strategy; (B) population exceeds approximately 1 Dimensions Working Group is formed, Regulatory Alternatives, including million while the goal in the Atlantic that it be charged with assessing the specification of framework dates, season Flyway Resident Canada Goose effectiveness of youth waterfowl hunts lengths, and bag limits; (C) Zones and Management Plan is 650,000 geese. as a hunter recruitment tool. Until such Split Seasons; and (D) Special Seasons/ Approval of this season would be an assessment has been conducted, we Species Management. The categories consistent with the current management will not consider any further changes to correspond to previously published plan. Specifically in Delaware, the the criteria for youth hunts. issues/discussions, and only those resident Canada goose population has containing substantial recommendations x. Mallard Management Units continued to increase with a 2010 are discussed below. population index of 10,880 birds, well Council Recommendations: The above the breeding population goal of D. Special Seasons/Species Management Central Flyway Council recommended 1,000 birds. Further, results of the 3- i. Special Teal Seasons changes to the High Plains Mallard year experimental extension (2008–10) demonstrated that the harvest during Regarding the regulations for this Management Unit boundary in Nebraska this season is comprised of year, utilizing the criteria developed for and Kansas for simplification and predominately resident geese and meets the teal season harvest strategy, this clarification of regulations enforcement. the current criteria established for year’s estimate of 8.9 million blue- Service Response: We do not support Special Canada Goose Seasons. Band winged teal from the traditional survey the modification of the boundary of the recovery data also indicated that no area indicates that a 16-day September High Plains Mallard Management Unit teal season in the Atlantic, Central, and in Kansas and Nebraska. While we direct recovery of Atlantic Population Mississippi Flyways is appropriate for appreciate the Council’s desire for ways (AP)-banded geese occurred during the 2011. to improve enforcement, we note that entire 3-year experimental timeframe. the boundaries in those two States have We concur that making the season ix. Youth Hunt been in place since the 1970s and are operational would help maximize Council Recommendations: The sufficiently clear for enforcement of harvest of resident Canada geese within Atlantic Flyway Council recommended waterfowl hunting regulations. Further, Delaware, with minimal to no that we remove the criteria for youth we do not believe sufficient biological additional impact to migrant geese, hunting days to be 2 consecutive information is available to warrant while also increasing hunting hunting days and allow the 2 days to be changes to the boundary at the scales opportunities. taken singularly or consecutively proposed. However, if the Flyway We also agree with the Central Flyway outside any regular duck season on a Council believes the demographics of Council’s request to increase the Canada weekend, holidays, or other non-school ducks have changed and may warrant a goose daily bag limit in North Dakota. days when youth hunters would have change in the boundary, we suggest that Last year, we increased the daily bag the maximum opportunity to an assessment of data should be limit in South Dakota, Nebraska, participate. conducted that could inform a change at Kansas, and Oklahoma during their Service Response: We concur with the the Management Unit level. special early Canada goose seasons (75 Atlantic Flyway Council’s FR 52873, August 30, 2010). The Special recommendation to allow States to offer 4. Canada Geese Early Canada Goose hunting season is 2 youth hunt days in addition to their A. Special Seasons generally designed to reduce or control regular seasons, with no requirement overabundant resident Canada geese that the youth hunts be held on Council Recommendations: The populations. Increasing the daily bag consecutive hunting days. Our intent in Atlantic Flyway Council recommended limit from 5 to 8 geese may help North first establishing this special day of that the 10-day experimental season Dakota reduce or control existing high opportunity in 1996 (61 FR 49232, extension (September 16–25) of the populations of resident Canada geese, September 18, 1996) was to introduce special September Canada goose which are currently in excess of 325,000 youth to the concepts of ethical hunting season in Delaware become geese (May 2010 estimate) with a utilization and stewardship of operational. population objective of 60,000–100,000.

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Regarding the increase in the daily The Central and Pacific Flyway The KRC noted that the new bag limit in Colorado, we agree. As the Councils recommend using the 2011 Supplemental Environmental Impact Pacific Flyway Council notes in their Rocky Mountain Population (RMP) Statement (EIS) for the migratory bird recommendation, the 2010 Rocky sandhill crane harvest allocation of hunting program has not been finalized, Mountain Population (RMP) breeding 1,771 birds as proposed in the allocation and that given the significant scientific population index (BPI) was 143,842, a formula described in the management uncertainties associated with 15 percent increase from the 2009 index plan for this population. The Councils Kentucky’s proposal, and the fact that of 124,684, but 10 percent below the also recommended the establishment of there is a distinct possibility the 3-year average BPI of 160,434. Further, two new hunting areas for RMP greater sandhill crane hunt might result in the while the 2011 RMP Midwinter Index sandhill crane hunting in Montana: the taking of endangered whooping cranes, (MWI) of 124,427 showed a 17 percent addition of Golden Valley County to an an EIS should be developed to evaluate decrease from the previous year’s index existing RMP sandhill crane hunting a full range of reasonable management of 149,831, and the 2011 RMP MWI was unit, and the establishment of a new alternatives for EP sandhill cranes. The 7 percent below its running 3-year RMP sandhill crane hunting unit in KRC also urged us to include a wider average of 133,312 geese, this total is Broadwater County. range of management alternatives in the still well above the level in the The Pacific Flyway Council Environmental Assessment including an management plan which allows for recommended not allowing a limited alternative that advocates a one-year harvest liberalization (80,000). Further, hunt for Lower Colorado River Valley experimental hunt and evaluation, and population index data and estimated Population (LCRVP) Sandhill Cranes in another alternative to postpone the harvest effects support increasing the Arizona during the 2011–12 hunting proposed Kentucky hunt until scientific bag and possession limits in Colorado. season. Survey results indicate the concerns are addressed. In the past 3 years, while counts from 3-year average population estimate is Several other non-governmental the spring breeding survey have stayed below the 2,500 birds required by the organizations; 337 individuals from relatively stable, post-hunting indices EA and management plan to hunt this Alaska, California, Colorado, collected as part of the mid-winter population. Connecticut, Florida, Illinois, Indiana, Kentucky, Massachusetts, Missouri, survey have increased. An increase in Written Comments: The International Ohio, Pennsylvania, Tennessee, the daily bag limit is expected to result Crane Foundation (ICF) and several Virginia, Washington, and Wisconsin; in minimal increases in Canada goose individuals commented that no and several petitions containing harvest rates. population modeling had been done for signatures from over 3,000 people EP sandhill cranes and that the B. Regular Seasons expressed both general and specific proposed harvest in Kentucky could Council Recommendations: The concerns about the scientific consume a substantial portion of the Mississippi Flyway Council uncertainty of the Kentucky proposal, productivity of the EP breeding crane recommended that the framework the EP Sandhill Crane Management opening date for all species of geese for population in the Upper Midwest. The Plan, and the potential taking of the regular goose seasons in Michigan ICF presented information on crane whooping cranes. All expressed and Wisconsin be September 16, 2011. reproductive rates from a small study opposition to the establishment of a new Service Response: We concur. area and cautioned that productivity of sandhill crane season in Kentucky. Michigan, beginning in 1998, and EP sandhill cranes may be too low to Service Response: Last year, the Wisconsin, beginning in 1989, have support a sustainable hunt. The ICF also Atlantic and Mississippi Flyway opened their regular Canada goose believed that data on the origin of birds Councils adopted a management plan seasons prior to the Flyway-wide that would be harvested in Kentucky for EP cranes. This year, Kentucky has framework opening date to address were incomplete. The ICF also provided submitted a crane hunt proposal to both resident goose management concerns in several comments regarding the Flyways that follows the hunt plan these States. As we have previously development of the EP crane guidelines and calls for a 30-day season stated (73 FR 50678, August 27, 2008), management plan and cautioned that with a maximum harvest of 400 cranes. we agree with the objective to increase the management plan could allow a We support the Kentucky crane hunt harvest pressure on resident Canada 50 percent reduction of the EP crane proposal. Total anticipated harvest and geese in the Mississippi Flyway and population. They questioned the crippling loss would be less than will continue to consider the opening appropriateness of the population goal 1 percent of the current 3-year average dates in both States as exceptions to the in the management plan and whether it population index for EP cranes (51,217 general Flyway opening date, to be would satisfy the desires of some States cranes), well below the level of harvest reconsidered annually. We note that the that want to expand crane numbers. of other crane populations (e.g., MCP most recent resident Canada goose Several commenters also criticized the harvest is 6.7 percent of the population estimate for the Mississippi Flyway was adequacy of the annual survey used to size, while RMP is 4.9 percent). 1.61 million birds in 2010, which was monitor the EP sandhill cranes. We prepared an environmental 10 percent higher than the 2009 The ICF and the Kentucky Resources assessment (EA) on the hunting of EP estimate, and well above the Flyway’s Council (KRC) commented that the sandhill cranes as allowed under the population goal of 1.18 to 1.40 million Kentucky proposal did not include management plan. Specifics of the two birds. details about the degree of public alternatives we analyzed can be found participation that would be sought in on our Web site at http://www.fws.gov/ 9. Sandhill Cranes the decision regarding if and how to migratorybirds, or at http:// Council Recommendations: The hunt cranes; that sufficient public input www.regulations.gov. Our EA outlines Mississippi Flyway Council had not be solicited to date; and that the two different approaches for assessing recommended a 3-year experimental 30- Service should defer on the decision to the ability of the EP crane population to day sandhill crane season for the hunt cranes. In addition, several withstand the level of harvest contained Eastern Population (EP) of sandhill commenters were critical to the degree in the EP management plan: (1) The cranes in Kentucky beginning in the to which the State of Kentucky provided potential biological removal allowance 2011–12 season. for public input. method; and (2) a simple population

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model using fall survey data and annual With regard to the potential taking of of 17,000–21,000 cranes determined by survival rates. The EA concluded that endangered whooping cranes, we point an average of the three most recent, the anticipated combined level of out that whooping cranes that migrate reliable September (fall pre-migration) harvest and crippling loss in Kentucky through Kentucky are part of the surveys. Additionally, the RMP sandhill could be sustained by the proposed experimental nonessential population of crane management plan allows for the hunt. Furthermore, population whooping cranes (NEP). In 2001, the regulated harvest of cranes when the modeling indicated that any harvest Service announced its intent to population index exceeds 15,000 cranes. below 2,000 birds would still result in reintroduce whooping cranes (Grus In 2010, 21,064 cranes were counted in a growing population of EP cranes. At americana) into historic habitat in the the September survey and the most a harvest level of 2,500 birds per year eastern United States with the intent to recent 3-year average for the RMP it would take over 30 years for the establish a migratory flock that would sandhill crane fall index is 20,847 birds. population to decline to 30,000 cranes. summer and breed in Wisconsin, and Both of the new hunt areas in Montana Therefore, we do not believe the winter in west-central Florida (66 FR are allowed under the management proposed limited harvest will negatively 14107, March 9, 2001). We designated plan. impact population growth and that this reintroduced population as an NEP Regarding the proposal to discontinue crane numbers will continue to increase according to section 10(j) of the the limited hunt for LCRVP cranes in in many States. We further note that the Endangered Species Act of 1973 (Act; 16 Arizona this year, we agree. In 2007, the harvest of cranes in Kentucky will be U.S.C. 1531 et seq.), as amended. Pacific Flyway Council recommended, controlled by a mandatory tagging and Mississippi and Atlantic Flyway States and we approved, the establishment of phone reporting system, which will within the NEP area maintain their a limited hunt for the LCRVP sandhill ensure that the harvest objective of 400 management prerogatives regarding the cranes in Arizona (72 FR 49622, August birds is not exceeded, and that the whooping crane (66 FR 33910, June 26, 28, 2007). However, due to problems season would be closed early if the 2001). They are not directed by the that year with the population inventory harvest objective is met before 30 days. reintroduction program to take any on which the LCRVP hunt plan is based, With regard to adding two additional specific actions to provide any special the Arizona Game and Fish Department management alternatives to the EA, we protective measures, nor are they chose to not conduct the hunt in 2007, note that experimental hunts for prevented from imposing restrictions and sought approval from the Service migratory bird populations are typically under State law, such as protective again in 2008, to begin conducting the three years in duration to allow designations, and area closures. hunt. We subsequently again approved adequate data collection for assessment. However, the season dates contained in the limited hunt (73 FR 50678, August Thus, the EP crane management plan the Kentucky proposal were chosen 27, 2008). Then, due to complications also allows new experimental hunts to such that they would begin encountered with the proposed be three years in duration. We believe approximately 3 weeks after whooping initiation of this new season occurring that the addition of a new alternative cranes have normally migrated through during litigation regarding opening new that would postpone the hunt until the State, hereby reducing the hunting seasons on Federal National scientific concerns are addressed is no likelihood that sandhill crane hunters Wildlife Refuges, the experimental different than the No Action alternative would encounter whooping cranes. limited hunt season was not opened in analyzed in the EA. Our EA also Kentucky has also opted to delay legal 2008. Thus, in 2009, the State of addresses many of the scientific shooting hours until sunrise to ensure Arizona requested that 2009–12 be concerns raised by commenters and we bird identification under any weather designated as the new experimental further note that research continues to conditions and Kentucky will require all period and designated an area under be conducted on EP cranes to improve hunters to pass an online identification State control where the experimental management. test prior to being issued any permit to hunt would be conducted. Last year, With regard to the adequacy of the hunt sandhill cranes. Arizona did implement the planned Service’s annual survey of EP sandhill Lastly, comments regarding the limited hunt; however, no cranes were cranes, we note that the annual count is adequacy of the public input process harvested. conducted within a relatively narrow provided by the Kentucky Department This year, the LCRVP survey results time frame to minimize potential double of Fish and Wildlife Resources indicate that the 3-year average of counting of birds. Although the survey (KDFWR) to establish State hunting LCRVP cranes is below the population design does not allow estimation of a regulations and to comply with any objective of 2,500. Thus, while we total population size, the count State-mandated administrative continue to support the 3-year represents a minimum population processes are not subject to our experimental framework for this hunt, estimate and the true population size is oversight or instruction. We have no conditional on successful monitoring undoubtedly higher. The annual survey control or authority over how KDFWR being conducted as called for in the continues to show a positive trend in conducts their public participation Flyway hunt plan for this population, the population; a result which is process. We do, however, note that all we concur with the Pacific Flyway corroborated by trends indicated by the Kentucky citizens have had the Council that the hunt should not be Breeding Bird Survey and Christmas opportunity to comment on our held this year. Bird Count. Regarding the origin of proposed rule and draft EA on the EP 14. Woodcock cranes harvested in Kentucky, we note sandhill crane harvest. that EP cranes are managed as one We also agree with the Central and Council Recommendations: The population and that no monitoring at Pacific Flyway Councils’ Atlantic Flyway Council recommended the sub-population level is required, or recommendations on the RMP sandhill adoption of the ‘‘moderate’’ season necessary, by the EP management plan. crane harvest allocation of 1,771 birds package of 45 days with a 3-bird daily Thus, we believe that we have fulfilled for the 2011–12 season, as outlined in bag limit in the Eastern Management our National Environmental Policy Act the RMP sandhill crane management Region for the 2011–12 season as (NEPA; 42 U.S.C. 4321 et seq.) plan’s harvest allocation formula. The outlined in the Interim American obligation with the preparation of an objective for the RMP sandhill crane is Woodcock Harvest Strategy (available at EA. to manage for a stable population index http://www.fws.gov/migratorybirds/

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NewsPublicationsReports.html). They Service Response: In 2008, we restrictions within the overall dark also recommended that States accepted and endorsed the interim goose daily bag limit in Units 9, 10, 17, previously allowed to zone for harvest strategies for the Central, and 18. In these Units, the dark goose woodcock be allowed to continue that Eastern, and Western Management Units limits would be 6 geese per day, with arrangement with the associated 20- (73 FR 50678, August 27, 2008). As we 12 geese in possession. percent penalty in season length (i.e., 36 stated then, the interim mourning dove Written Comments: The North Slope days in each of New Jersey’s zones). harvest strategies are a step towards Borough questioned the Service’s Service Response: We agree with the implementing the Mourning Dove insistence on classifying Alaska’s Council’s recommendation. Last year, National Strategic Harvest Plan (Plan) migratory bird hunting as either spring following review and comment by the that was approved by all four Flyway and summer hunting (i.e., subsistence Flyway Councils and the public, we Councils in 2003. The Plan represents a hunting) or fall and winter hunting (i.e., adopted an interim harvest strategy for new, more informed means of decision- sport hunting) and urged the Service to woodcock beginning in the 2011–12 making for dove harvest management accommodate subsistence hunters by hunting season for a period of 5 years besides relying solely on traditional modifying the regulations to continue (2011–15) (75 FR 52873, August 30, roadside counts of mourning doves as subsistence hunting (contained in 50 2010). Specifics of the interim harvest indicators of population trend. CFR part 92) after September 1. strategy can be found at http:// However, recognizing that a more Service Response: We concur with the www.fws.gov/migratorybirds/ comprehensive, national approach proposed removal of the Canada goose NewsPublicationsReports.html. This would take time to develop, we daily bag limit restrictions within the year, based on the status of woodcock, requested the development of interim overall dark goose daily bag limit. We the interim strategy calls for selection of harvest strategies, by management unit, agree with the Council that cackling the ‘‘moderate’’ season package in both until the elements of the Plan can be geese restrictions on primary breeding the Eastern and Central Management fully implemented. In 2009, the interim and staging areas are not warranted Units. harvest strategies were successfully given recent reassessments of population data and the fact that As we stated last year, the interim employed and implemented in all three Alaska’s Units 9, 10, 17, and 18 have harvest strategy provides a transparent Management Units (74 FR 36870, July very little Canada goose sport harvest. framework for making regulatory 24, 2009). This year, based on the interim We expect the harvest increase in decisions for woodcock season length harvest strategies and current Alaska will be small. and bag limits while we work to population status, we agree with the Regarding the comments from the improve monitoring and assessment recommended selection of the North Slope Borough, we acknowledge protocols for this species. ‘‘moderate’’ season frameworks for the North Slope Borough’s concerns, 16. Mourning Doves doves in the Eastern, Central, and and will respond in more detail in the Western Management Units. forthcoming rule for ‘‘Harvest Council Recommendations: The Regarding the Central Flyway Regulations for Migratory Birds in Atlantic and Mississippi Flyway Council’s recommendation to move the Alaska During the 2012 Season.’’ We Councils recommended use of the opening date for the South Dove Zone also acknowledge that the response to ‘‘moderate’’ season framework for States in Texas from the Saturday nearest this comment will occur after the within the Eastern Management Unit September 20 (but not earlier than regulations for subpart D of 50 CFR part population of mourning doves resulting September 17) to the Friday before the 92 are no longer effective for this year. in a 70-day season and 15-bird daily bag third Saturday in September, we do not We encourage the North Slope Borough limit. The daily bag limit could be support the Council’s recommendation. to contact us this fall when the Service composed of mourning doves and We remain concerned about the proposes new Alaska subsistence white-winged doves, singly or in potential impact on the recruitment of regulations for 2012 to possibly resolve combination. late-nesting doves when opening the issues they raise. The Mississippi and Central Flyway hunting seasons earlier than the State 22. Falconry Councils recommend the use of the currently does. We believe that standard (or ‘‘moderate’’) season additional biological information should Written Comments: An individual package of a 15-bird daily bag limit and be collected to assess potential proposed adding a spring hunting a 70-day season for the 2011–12 biological impacts before making season for falconers, primarily in March. mourning dove season in the States additional changes to the opening date. Another individual requested that within the Central Management Unit. Lastly, we concur with the Pacific falconers be allowed the same daily bag The Central Flyway Council also Flyway Council’s recommendation to limits as gun hunters. recommended that the opening date for combine mourning and white-winged Service Response: Currently, we allow the South Dove Zone in Texas be the dove season frameworks into a single falconry as a permitted means of taking Friday before the third Saturday in framework, and allow an aggregate bag migratory game birds in any State September. in all Pacific Flyway States in the WMU. meeting Federal falconry standards in The Pacific Flyway Council We believe this change will simplify the 50 CFR 21.29. Such States may select an recommended use of the ‘‘moderate’’ frameworks for use by the States when extended season for taking migratory season framework for States in the selecting seasons. Further, we have game birds as long as the combined Western Management Unit (WMU) applied this change to all dove length of the extended season, regular population of mourning doves, which frameworks in all management units season, and any special or experimental represents no change from last year’s (see the Doves framework section of this seasons does not exceed 107 days for frameworks. The Council also final rule for further information). any species or group of species in a recommended combining mourning and geographical area. In addition, all such white-winged dove season frameworks 18. Alaska seasons must fall between September 1 into a single framework, and allowing Council Recommendations: The and March 10, as stipulated in the an aggregate bag in all Pacific Flyway Pacific Flyway Council recommended Migratory Bird Treaty (Treaty). We note States in the WMU. removal of Canada goose daily bag limit that in those States that already

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experience 107-day seasons (i.e., ducks species or threatened species or result in consumer surplus across all flyways of in the Pacific Flyway), there is no the destruction or adverse modification $205–$270 million. We also chose opportunity for extended falconry of [critical] habitat. * * *.’’ alternative 3 for the 2009–10 and the seasons. Further, given the Treaty Consequently, we conducted formal 2010–11 seasons. At this time, we are limitations, no hunting seasons consultations to ensure that actions proposing no changes to the season (including falconry) may extend past resulting from these regulations would frameworks for the 2011–12 season, and March 10. not likely jeopardize the continued as such, we will again consider these Regarding the daily bag limit for existence of endangered or threatened three alternatives. However, final falconers, while we understand the species or result in the destruction or frameworks for waterfowl will be concerns expressed, at this time we are adverse modification of their critical dependent on population status not supporting any changes to the daily habitat. Findings from these information available later this year. For bag limit. We note that falconers are consultations are included in a these reasons, we have not conducted a generally afforded much longer seasons biological opinion, which concluded new economic analysis, but the 2008–09 than gun hunters for most species in that the regulations are not likely to analysis is part of the record for this rule most Flyways. Further, to our jeopardize the continued existence of and is available at http://www.fws.gov/ knowledge, we have not received any any endangered or threatened species. migratorybirds/ requests from either the Flyway Additionally, these findings may have NewReportsPublications/SpecialTopics/ Councils or States requesting such a caused modification of some regulatory SpecialTopics.html#HuntingRegs or at change. measures previously proposed, and the http://www.regulations.gov at Docket NEPA Consideration final frameworks reflect any such No. FWS–R9–MB–2011–0014. modifications. Our biological opinions NEPA considerations are covered by resulting from this section 7 Regulatory Flexibility Act the programmatic document ‘‘Final consultation are public documents Supplemental Environmental Impact The annual migratory bird hunting available for public inspection at the regulations have a significant economic Statement: Issuance of Annual address indicated under ADDRESSES. Regulations Permitting the Sport impact on substantial numbers of small Hunting of Migratory Birds (FSES 88– Executive Order 12866 entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). We analyzed 14),’’ filed with the Environmental The Office of Management and Budget the economic impacts of the annual Protection Agency on June 9, 1988. We has determined that this rule is hunting regulations on small business published a notice of availability in the significant and has reviewed this rule entities in detail as part of the 1981 cost- Federal Register on June 16, 1988 (53 under Executive Order 12866. OMB benefit analysis. This analysis was FR 22582). We published our Record of bases its determination of regulatory revised annually from 1990–95. In 1995, Decision on August 18, 1988 (53 FR significance upon the following four the Service issued a Small Entity 31341). In addition, an August 1985 criteria: environmental assessment entitled (a) Whether the rule will have an Flexibility Analysis (Analysis), which ‘‘Guidelines for Migratory Bird Hunting annual effect of $100 million or more on was subsequently updated in 1996, Regulations on Federal Indian the economy or adversely affect an 1998, 2004, and 2008. The primary Reservations and Ceded Lands’’ is economic sector, productivity, jobs, the source of information about hunter available from the address indicated environment, or other units of the expenditures for migratory game bird under the caption FOR FURTHER government. hunting is the National Hunting and INFORMATION CONTACT. (b) Whether the rule will create Fishing Survey, which is conducted at In a notice published in the inconsistencies with other Federal 5-year intervals. The 2008 Analysis was September 8, 2005, Federal Register (70 agencies’ actions. based on the 2006 National Hunting and FR 53376), we announced our intent to (c) Whether the rule will materially Fishing Survey and the U.S. Department develop a new Supplemental affect entitlements, grants, user fees, of Commerce’s County Business Environmental Impact Statement (SEIS) loan programs, or the rights and Patterns, from which it was estimated for the migratory bird hunting program. obligations of their recipients. that migratory bird hunters would Public scoping meetings were held in (d) Whether the rule raises novel legal spend approximately $1.2 billion at the spring of 2006, as detailed in a or policy issues. small businesses in 2008. Copies of the March 9, 2006, Federal Register (71 FR An economic analysis was prepared Analysis are available upon request 12216). We released the draft SEIS on for the 2008–09 season. This analysis from the Division of Migratory Bird July 9, 2010 (75 FR 39577). The draft was based on data from the 2006 Management (see ADDRESSES) or from SEIS is available either by writing to the National Hunting and Fishing Survey, our Web site at http://www.fws.gov/ address indicated under FOR FURTHER the most recent year for which data are migratorybirds/ INFORMATION CONTACT or by viewing our available (see discussion in Regulatory NewReportsPublications/SpecialTopics/ Web site at http://www.fws.gov/ Flexibility Act section below). This SpecialTopics.html#HuntingRegs or at migratorybirds. analysis estimated consumer surplus for http://www.regulations.gov at Docket three alternatives for duck hunting No. FWS–R9–MB–2011–0014. Endangered Species Act Consideration (estimates for other species are not Small Business Regulatory Enforcement Section 7 of the Endangered Species quantified due to lack of data). The Fairness Act Act, as amended (16 U.S.C. 1531–1543; alternatives are (1) Issue restrictive 87 Stat. 884), provides that, ‘‘The regulations allowing fewer days than This rule is a major rule under 5 Secretary shall review other programs those issued during the 2007–08 season, U.S.C. 804(2), the Small Business administered by him and utilize such (2) Issue moderate regulations allowing Regulatory Enforcement Fairness Act. programs in furtherance of the purposes more days than those in alternative 1, For the reasons outlined above, this rule of this Act’’ (and) shall ‘‘insure that any and (3) Issue liberal regulations would have an annual effect on the action authorized, funded, or carried out identical to the regulations in the 2007– economy of $100 million or more. * * * is not likely to jeopardize the 08 season. For the 2008–09 season, we However, because this rule would continued existence of any endangered chose alternative 3, with an estimated establish hunting seasons, we do not

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plan to defer the effective date under the otherwise unavailable privileges and, or administration. Therefore, in exemption contained in 5 U.S.C. 808(1). therefore, reduce restrictions on the use accordance with Executive Order 13132, of private and public property. Paperwork Reduction Act these regulations do not have significant Energy Effects—Executive Order 13211 federalism effects and do not have We examined these regulations under sufficient federalism implications to the Paperwork Reduction Act of 1995 Executive Order 13211 requires warrant the preparation of a Federalism agencies to prepare Statements of (44 U.S.C. 3501 et seq.). The various summary impact statement. recordkeeping and reporting Energy Effects when undertaking certain requirements imposed under regulations actions. While this rule is a significant Regulations Promulgation established in 50 CFR part 20, subpart regulatory action under Executive Order K, are utilized in the formulation of 12866, it is not expected to adversely The rulemaking process for migratory migratory game bird hunting affect energy supplies, distribution, or game bird hunting must, by its nature, regulations. Specifically, OMB has use. Therefore, this action is not a operate under severe time constraints. approved the information collection significant energy action and no However, we intend that the public be requirements of our Migratory Bird Statement of Energy Effects is required. given the greatest possible opportunity Surveys and assigned control number Government-to-Government to comment. Thus, when the 1018–0023 (expires 4/30/2014). This Relationship With Tribes preliminary proposed rulemaking was information is used to provide a published, we established what we sampling frame for voluntary national In accordance with the President’s believed were the longest periods surveys to improve our harvest memorandum of April 29, 1994, possible for public comment. In doing ‘‘Government-to-Government Relations estimates for all migratory game birds in this, we recognized that when the with Native American Tribal order to better manage these comment period closed, time would be Governments’’ (59 FR 22951), Executive populations. OMB has also approved of the essence. That is, if there were a the information collection requirements Order 13175, and 512 DM 2, we have evaluated possible effects on Federally- delay in the effective date of these of the Alaska Subsistence Household regulations after this final rulemaking, Survey, an associated voluntary annual recognized Indian tribes and have determined that there are no effects on States would have insufficient time to household survey used to determine select season dates and limits; to levels of subsistence take in Alaska, and Indian trust resources. However, in the April 8 Federal Register, we solicited communicate those selections to us; and assigned control number 1018–0124 to establish and publicize the necessary (expires 4/30/2013). proposals for special migratory bird A Federal agency may not conduct or hunting regulations for certain Tribes on regulations and procedures to sponsor and a person is not required to Federal Indian reservations, off- implement their decisions. We therefore respond to a collection of information reservation trust lands, and ceded lands find that ‘‘good cause’’ exists, within the unless it displays a currently valid OMB for the 2011–12 migratory bird hunting terms of 5 U.S.C. 553(d)(3) of the control number. season. The resulting proposals were Administrative Procedure Act, and contained in a separate August 8, 2011, these frameworks will, therefore, take Unfunded Mandates Reform Act proposed rule (76 FR 48694). By virtue effect immediately upon publication. of these actions, we have consulted with We have determined and certify, in Therefore, under authority of the Tribes affected by this rule. compliance with the requirements of the Migratory Bird Treaty Act (July 3, 1918), Unfunded Mandates Reform Act, 2 Federalism Effects as amended (16 U.S.C. 703–711), we U.S.C. 1502 et seq., that this rulemaking prescribe final frameworks setting forth would not impose a cost of $100 million Due to the migratory nature of certain the species to be hunted, the daily bag or more in any given year on local or species of birds, the Federal and possession limits, the shooting State government or private entities. Government has been given Therefore, this rule is not a ‘‘significant responsibility over these species by the hours, the season lengths, the earliest regulatory action’’ under the Unfunded Migratory Bird Treaty Act. We annually opening and latest closing season dates, Mandates Reform Act. prescribe frameworks from which the and hunting areas, from which State States make selections regarding the conservation agency officials will select Civil Justice Reform—Executive Order hunting of migratory birds, and we hunting season dates and other options. 12988 employ guidelines to establish special Upon receipt of season selections from The Department, in promulgating this regulations on Federal Indian these officials, we will publish a final rule, has determined that this rule will reservations and ceded lands. This rulemaking amending 50 CFR part 20 to not unduly burden the judicial system process preserves the ability of the reflect seasons, limits, and shooting and that it meets the requirements of States and tribes to determine which hours for the conterminous United sections 3(a) and 3(b)(2) of Executive seasons meet their individual needs. States for the 2011–12 season. Order 12988. Any State or Indian tribe may be more restrictive than the Federal frameworks List of Subjects in 50 CFR Part 20 Takings Implication Assessment at any time. The frameworks are In accordance with Executive Order developed in a cooperative process with Exports, Hunting, Imports, Reporting 12630, this rule, authorized by the the States and the Flyway Councils. and recordkeeping requirements, Migratory Bird Treaty Act, does not This process allows States to participate Transportation, Wildlife. have significant takings implications in the development of frameworks from The rules that eventually will be and does not affect any constitutionally which they will make selections, promulgated for the 2011–12 hunting protected property rights. This rule thereby having an influence on their season are authorized under 16 U.S.C. would not result in the physical own regulations. These rules do not 703–712 and 16 U.S.C. 742a–j. occupancy of property, the physical have a substantial direct effect on fiscal invasion of property, or the regulatory capacity, change the roles or taking of any property. In fact, these responsibilities of Federal or State rules would allow hunters to exercise governments, or intrude on State policy

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Dated: August 16, 2011. Maine, Maryland, Massachusetts, New Waterfowl Seasons in the Atlantic Jane Lyder, Hampshire, New Jersey, New York, Flyway Acting Assistant Secretary for Fish and North Carolina, Pennsylvania, Rhode In the Atlantic Flyway States of Wildlife and Parks. Island, South Carolina, Vermont, Connecticut, Delaware, Maine, Final Regulations Frameworks for Virginia, and West Virginia. Maryland, Massachusetts, New Jersey, Mississippi Flyway—includes 2011–12 Early Hunting Seasons on North Carolina, Pennsylvania, and Alabama, Arkansas, Illinois, Indiana, Certain Migratory Game Birds Virginia, where Sunday hunting is Iowa, Kentucky, Louisiana, Michigan, prohibited Statewide by State law, all Pursuant to the Migratory Bird Treaty Minnesota, Mississippi, Missouri, Ohio, Sundays are closed to all take of Act and delegated authorities, the Tennessee, and Wisconsin. Department of the Interior approved the Central Flyway—includes Colorado migratory waterfowl (including following proposed frameworks, which (east of the Continental Divide), Kansas, mergansers and coots). prescribe season lengths, bag limits, Montana (Counties of Blaine, Carbon, Special September Teal Season shooting hours, and outside dates Fergus, Judith Basin, Stillwater, Outside Dates: Between September 1 within which States may select hunting Sweetgrass, Wheatland, and all counties and September 30, an open season on seasons for certain migratory game birds east thereof), Nebraska, New Mexico all species of teal may be selected by the between September 1, 2011, and March (east of the Continental Divide except following States in areas delineated by 10, 2012. the Jicarilla Apache Indian Reservation), State regulations: North Dakota, Oklahoma, South Dakota, General Atlantic Flyway—Delaware, Florida, Texas, and Wyoming (east of the Georgia, Maryland, North Carolina, Dates: All outside dates noted below Continental Divide). South Carolina, and Virginia. are inclusive. Pacific Flyway—includes Alaska, Mississippi Flyway—Alabama, Shooting and Hawking (taking by Arizona, California, Idaho, Nevada, Arkansas, Illinois, Indiana, Kentucky, falconry) Hours: Unless otherwise Oregon, Utah, Washington, and those Louisiana, Mississippi, Missouri, Ohio, specified, from one-half hour before portions of Colorado, Montana, New and Tennessee. sunrise to sunset daily. Mexico, and Wyoming not included in Possession Limits: Unless otherwise Central Flyway—Colorado (part), the Central Flyway. specified, possession limits are twice Kansas, Nebraska (part), New Mexico the daily bag limit. Management Units (part), Oklahoma, and Texas. Permits: For some species of Mourning Dove Management Units Hunting Seasons and Daily Bag migratory birds, the Service authorizes Limits: Not to exceed 16 consecutive the use of permits to regulate harvest or Eastern Management Unit—All States hunting days in the Atlantic, monitor their take by sport hunters, or east of the Mississippi River, and Mississippi, and Central Flyways. The both. In many cases (e.g., tundra swans, Louisiana. daily bag limit is 4 teal. some sandhill crane populations), the Central Management Unit—Arkansas, Shooting Hours: Service determines the amount of Colorado, Iowa, Kansas, Minnesota, Atlantic Flyway—One-half hour harvest that may be taken during Missouri, Montana, Nebraska, New before sunrise to sunset, except in hunting seasons during its formal Mexico, North Dakota, Oklahoma, South Maryland, where the hours are from regulations-setting process, and the Dakota, Texas, and Wyoming. sunrise to sunset. Western Management Unit—Arizona, States then issue permits to hunters at Mississippi and Central Flyways— California, Idaho, Nevada, Oregon, Utah, levels predicted to result in the amount One-half hour before sunrise to sunset, and Washington. of take authorized by the Service. Thus, except in the States of Arkansas, although issued by States, the permits Woodcock Management Regions Illinois, Indiana, Missouri, and Ohio, would not be valid unless the Service Eastern Management Region— where the hours are from sunrise to approved such take in its regulations. sunset. These Federally authorized, State- Connecticut, Delaware, Florida, Georgia, issued permits are issued to individuals, Maine, Maryland, Massachusetts, New Special September Duck Seasons Hampshire, New Jersey, New York, and only the individual whose name Florida, Kentucky and Tennessee: In and address appears on the permit at the North Carolina, Pennsylvania, Rhode Island, South Carolina, Vermont, lieu of a special September teal season, time of issuance is authorized to take a 5-consecutive-day season may be migratory birds at levels specified in the Virginia, and West Virginia. Central Management Region— selected in September. The daily bag permit, in accordance with provisions of Alabama, Arkansas, Illinois, Indiana, limit may not exceed 4 teal and wood both Federal and State regulations Iowa, Kansas, Kentucky, Louisiana, ducks in the aggregate, of which no governing the hunting season. The Michigan, Minnesota, Mississippi, more than 2 may be wood ducks. permit must be carried by the permittee Missouri, Nebraska, North Dakota, Ohio, Iowa: Iowa may hold up to 5 days of when exercising its provisions and must Oklahoma, South Dakota, Tennessee, its regular duck hunting season in be presented to any law enforcement Texas, and Wisconsin. September. All ducks that are legal officer upon request. The permit is not Other geographic descriptions are during the regular duck season may be transferrable or assignable to another contained in a later portion of this taken during the September segment of individual, and may not be sold, document. the season. The September season bartered, traded, or otherwise provided segment may commence no earlier than to another person. If the permit is Definitions the Saturday nearest September 20 altered or defaced in any way, the Dark geese: Canada geese, white- (September 17). The daily bag and permit becomes invalid. fronted geese, brant (except in Alaska, possession limits will be the same as Flyways and Management Units California, Oregon, Washington, and the those in effect last year but are subject Atlantic Flyway), and all other goose to change during the late-season Waterfowl Flyways species, except light geese. regulations process. The remainder of Atlantic Flyway—includes Light geese: snow (including blue) the regular duck season may not begin Connecticut, Delaware, Florida, Georgia, geese and Ross’s geese. before October 10.

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Special Youth Waterfowl Hunting Days emergent vegetation in Delaware, Central Flyway Maryland, North Carolina, and Virginia; Outside Dates: States may select 2 General Seasons days per duck-hunting zone, designated and provided that any such areas have as ‘‘Youth Waterfowl Hunting Days,’’ in been described, delineated, and In Kansas, Nebraska, Oklahoma, addition to their regular duck seasons. designated as special sea duck hunting South Dakota, and Texas, Canada goose The days must be held outside any areas under the hunting regulations seasons of up to 30 days during regular duck season on a weekend, adopted by the respective States. September 1–30 may be selected. In Colorado, New Mexico, North Dakota, holidays, or other non-school days Special Early Canada Goose Seasons when youth hunters would have the Montana, and Wyoming, Canada goose maximum opportunity to participate. Atlantic Flyway seasons of up to 15 days during The days may be held up to 14 days September 1–15 may be selected. The General Seasons before or after any regular duck-season daily bag limit may not exceed 5 Canada geese, except in Kansas, Nebraska, frameworks or within any split of a Canada goose seasons of up to 15 days North Dakota, Oklahoma, and South regular duck season, or within any other during September 1–15 may be selected Dakota, where the bag limit may not open season on migratory birds. for the Eastern Unit of Maryland. Daily Bag Limits: The daily bag limits exceed 8 Canada geese. Areas open to Seasons not to exceed 30 days during the hunting of Canada geese must be may include ducks, geese, mergansers, September 1–30 may be selected for coots, moorhens, and gallinules and described, delineated, and designated as Connecticut, Florida, Georgia, New such in each State’s hunting regulations. would be the same as those allowed in Jersey, New York (Long Island Zone the regular season. Flyway species and only), North Carolina, Rhode Island, and Shooting Hours: One-half hour before area restrictions would remain in effect. South Carolina. Seasons may not exceed sunrise to sunset, except that during Shooting Hours: One-half hour before 25 days during September 1–25 in the September 1–15 shooting hours may sunrise to sunset. remainder of the Flyway. Areas open to extend to one-half hour after sunset if all other waterfowl seasons are closed in Participation Restrictions: Youth the hunting of Canada geese must be the specific applicable area. hunters must be 15 years of age or described, delineated, and designated as younger. In addition, an adult at least such in each State’s hunting regulations. Pacific Flyway 18 years of age must accompany the youth hunter into the field. This adult Daily Bag Limits: Not to exceed 15 General Seasons may not duck hunt but may participate Canada geese. California may select a 9-day season in other seasons that are open on the Shooting Hours: One-half hour before in Humboldt County during the period special youth day. sunrise to sunset, except that during any September 1–15. The daily bag limit is Scoter, Eider, and Long-Tailed Ducks general season, shooting hours may 2. (Atlantic Flyway) extend to one-half hour after sunset if all other waterfowl seasons are closed in Colorado may select a 9-day season Outside Dates: Between September 15 the specific applicable area. during the period of September 1–15. and January 31. The daily bag limit is 4. Hunting Seasons and Daily Bag Mississippi Flyway Oregon may select a special Canada Limits: Not to exceed 107 days, with a General Seasons goose season of up to 15 days during the daily bag limit of 7, singly or in the period September 1–15. In addition, in aggregate, of the listed sea duck species, Canada goose seasons of up to 15 days the NW Goose Management Zone in of which no more than 4 may be scoters. during September 1–15 may be selected, Oregon, a 15-day season may be selected Daily Bag Limits During the Regular except in the Upper Peninsula in during the period September 1–20. Duck Season: Within the special sea Michigan, where the season may not Daily bag limits may not exceed 5 duck areas, during the regular duck extend beyond September 10, and in Canada geese. season in the Atlantic Flyway, States Minnesota, where a season of up to 22 Idaho may select a 7-day season may choose to allow the above sea duck days during September 1–22 may be during the period September 1–15. The limits in addition to the limits applying selected. The daily bag limit may not daily bag limit is 2, and the possession to other ducks during the regular duck exceed 5 Canada geese. Areas open to limit is 4. season. In all other areas, sea ducks may the hunting of Canada geese must be Washington may select a special be taken only during the regular open described, delineated, and designated as Canada goose season of up to 15 days season for ducks and are part of the such in each State’s hunting regulations. during the period September 1–15. regular duck season daily bag (not to A Canada goose season of up to 10 Daily bag limits may not exceed 5 exceed 4 scoters) and possession limits. consecutive days during September 1– Canada geese. Areas: In all coastal waters and all Wyoming may select an 8-day season waters of rivers and streams seaward 10 may be selected by Michigan for on Canada geese during the period from the first upstream bridge in Maine, Huron, Saginaw, and Tuscola Counties, September 1–15. This season is subject New Hampshire, Massachusetts, Rhode except that the Shiawassee National to the following conditions: Island, Connecticut, and New York; in Wildlife Refuge, Shiawassee River State any waters of the Atlantic Ocean and in Game Area Refuge, and the Fish Point A. Where applicable, the season must any tidal waters of any bay which are Wildlife Area Refuge will remain be concurrent with the September separated by at least 1 mile of open closed. The daily bag limit may not portion of the sandhill crane season. water from any shore, island, and exceed 5 Canada geese. B. A daily bag limit of 2, with season emergent vegetation in New Jersey, Shooting Hours: One-half hour before and possession limits of 4, will apply to South Carolina, and Georgia; and in any sunrise to sunset, except that during the special season. waters of the Atlantic Ocean and in any September 1–15 shooting hours may Areas open to hunting of Canada tidal waters of any bay which are extend to one-half hour after sunset if geese in each State must be described, separated by at least 800 yards of open all other waterfowl seasons are closed in delineated, and designated as such in water from any shore, island, and the specific applicable area. each State’s hunting regulations.

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Regular Goose Seasons Special Seasons in the Central and Hunting Seasons: Seasons may not Regular goose seasons may open as Pacific Flyways exceed 70 days, and may be split into early as September 16 in Wisconsin and Arizona, Colorado, Idaho, Montana, 2 segments. Michigan. Season lengths, bag and New Mexico, Utah, and Wyoming may Daily Bag Limits: Clapper and King possession limits, and other provisions select seasons for hunting sandhill Rails—In Rhode Island, Connecticut, will be established during the late- cranes within the range of the Rocky New Jersey, Delaware, and Maryland, season regulations process. Mountain Population (RMP) subject to 10, singly or in the aggregate of the 2 species. In Texas, Louisiana, Sandhill Cranes the following conditions: Outside Dates: Between September 1 Mississippi, Alabama, Georgia, Florida, Regular Seasons in the Mississippi and January 31. South Carolina, North Carolina, and Flyway Hunting Seasons: The season in any Virginia, 15, singly or in the aggregate of the two species. Outside Dates: Between September 1 State or zone may not exceed 30 consecutive days. Sora and Virginia Rails—In the and February 28. Atlantic, Mississippi, and Central Hunting Seasons: A season not to Bag limits: Not to exceed 3 daily and Flyways and the Pacific Flyway exceed 37 consecutive days may be 9 per season. portions of Colorado, Montana, New selected in the designated portion of Permits: Participants must have a Mexico, and Wyoming, 25 daily and 25 northwestern Minnesota (Northwest valid permit, issued by the appropriate in possession, singly or in the aggregate Goose Zone). State, in their possession while hunting. Daily Bag Limit: 2 sandhill cranes. Other Provisions: Numbers of permits, of the two species. The season is closed Permits: Each person participating in open areas, season dates, protection in the remainder of the Pacific Flyway. the regular sandhill crane season must plans for other species, and other Common Snipe have a valid Federal or State sandhill provisions of seasons must be consistent Outside Dates: Between September 1 crane hunting permit. with the management plan and approved by the Central and Pacific and February 28, except in Maine, Experimental Seasons in the Flyway Councils, with the following Vermont, New Hampshire, Mississippi Flyway exceptions: Massachusetts, Rhode Island, Outside Dates: Between September 1 A. In Utah, 100 percent of the harvest Connecticut, New York, New Jersey, and January 31. will be assigned to the RMP quota; Delaware, Maryland, and Virginia, Hunting Seasons: A season not to B. In Arizona, monitoring the racial where the season must end no later than exceed 30 consecutive days may be composition of the harvest must be January 31. selected in Kentucky. conducted at 3-year intervals; Hunting Seasons and Daily Bag Daily Bag Limit: Not to exceed 2 daily C. In Idaho, 100 percent of the harvest Limits: Seasons may not exceed 107 and 4 per season. will be assigned to the RMP quota; and days and may be split into two Permits: Each person participating in D. In New Mexico, the season in the segments. The daily bag limit is 8 snipe. the regular sandhill crane season must Estancia Valley is experimental, with a Zoning: Seasons may be selected by have a valid Federal or State sandhill requirement to monitor the level and zones established for duck hunting. crane hunting permit. racial composition of the harvest; American Woodcock Other Provisions: Numbers of permits, greater sandhill cranes in the harvest open areas, season dates, protection will be assigned to the RMP quota. Outside Dates: States in the Eastern plans for other species, and other Management Region may select hunting Common Moorhens and Purple provisions of seasons must be consistent seasons between October 1 and January Gallinules with the management plan and 31. States in the Central Management approved by the Mississippi Flyway Outside Dates: Between September 1 Region may select hunting seasons Council. and the last Sunday in January (January between the Saturday nearest September 29) in the Atlantic, Mississippi, and 22 (September 24) and January 31. Regular Seasons in the Central Flyway Central Flyways. States in the Pacific Hunting Seasons and Daily Bag Outside Dates: Between September 1 Flyway have been allowed to select Limits: Seasons may not exceed 45 days and February 28. their hunting seasons between the in the Eastern Region and 45 days in the Hunting Seasons: Seasons not to outside dates for the season on ducks; Central Region. The daily bag limit is 3. exceed 37 consecutive days may be therefore, they are late season Seasons may be split into two segments. selected in designated portions of North frameworks, and no frameworks are Zoning: New Jersey may select Dakota (Area 2) and Texas (Area 2). provided in this document. seasons in each of two zones. The Seasons not to exceed 58 consecutive Hunting Seasons and Daily Bag season in each zone may not exceed days may be selected in designated Limits: Seasons may not exceed 70 days 36 days. portions of the following States: in the Atlantic, Mississippi, and Central Band-Tailed Pigeons Colorado, Kansas, Montana, North Flyways. Seasons may be split into 2 Dakota, South Dakota, and Wyoming. segments. The daily bag limit is 15 Pacific Coast States (California, Oregon, Seasons not to exceed 93 consecutive common moorhens and purple Washington, and Nevada) days may be selected in designated gallinules, singly or in the aggregate of Outside Dates: Between September 15 portions of the following States: New the two species. and January 1. Mexico, Oklahoma, and Texas. Zoning: Seasons may be selected by Hunting Seasons and Daily Bag Daily Bag Limits: 3 sandhill cranes, zones established for duck hunting. Limits: Not more than 9 consecutive except 2 sandhill cranes in designated days, with a daily bag limit of 2 band- portions of North Dakota (Area 2) and Rails tailed pigeons. Texas (Area 2). Outside Dates: States included herein Zoning: California may select hunting Permits: Each person participating in may select seasons between September seasons not to exceed 9 consecutive the regular sandhill crane season must 1 and the last Sunday in January days in each of two zones. The season have a valid Federal or State sandhill (January 29) on clapper, king, sora, and in the North Zone must close by crane hunting permit. Virginia rails. October 3.

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Four-Corners States (Arizona, earlier than September 17, and January common and king eiders, harlequin Colorado, New Mexico, and Utah) 25. ducks, long-tailed ducks, and common Outside Dates: Between September 1 C. Except as noted above, regulations and red-breasted mergansers. and November 30. for bag and possession limits, season Light Geese—A basic daily bag limit Hunting Seasons and Daily Bag length, and shooting hours must be of 4 and a possession limit of 8. Limits: Not more than 30 consecutive uniform within each hunting zone. Dark Geese—A basic daily bag limit of days, with a daily bag limit of 5 band- Special White-winged Dove Area in 4 and a possession limit of 8. tailed pigeons. Texas: Dark-goose seasons are subject to the Zoning: New Mexico may select In addition, Texas may select a following exceptions: hunting seasons not to exceed 20 hunting season of not more than 4 days A. In Units 5 and 6, the taking of consecutive days in each of two zones. for the special white-winged dove area Canada geese is permitted from The season in the South Zone may not of the South Zone between September 1 September 28 through December 16. B. On Middleton Island in Unit 6, a open until October 1. and September 19. The daily bag limit may not exceed 15 white-winged, special, permit-only Canada goose Doves mourning, and white-tipped doves in season may be offered. A mandatory Outside Dates: Between September 1 the aggregate, of which no more than 4 goose identification class is required. and January 15, except as otherwise may be mourning doves and no more Hunters must check in and check out. provided, States may select hunting than 2 may be white-tipped doves. The bag limit is 1 daily and 1 in seasons and daily bag limits as follows: possession. The season will close if Western Management Unit incidental harvest includes 5 dusky Eastern Management Unit Hunting Seasons and Daily Bag Canada geese. A dusky Canada goose is Hunting Seasons and Daily Bag Limits: any dark-breasted Canada goose Limits: Not more than 70 days, with a Idaho, Nevada, Oregon, Utah, and (Munsell 10 YR color value five or less) daily bag limit of 15 mourning and Washington—Not more than 30 with a bill length between 40 and 50 white-winged doves in the aggregate. consecutive days, with a daily bag limit millimeters. Zoning and Split Seasons: States may of 10 mourning and white-winged doves C. In Units 6–B, 6–C, and on select hunting seasons in each of two in the aggregate. Hinchinbrook and Hawkins Islands in zones. The season within each zone may Arizona and California—Not more Unit 6–D, a special, permit-only Canada be split into not more than three than 60 days, which may be split goose season may be offered. Hunters periods. Regulations for bag and between two periods, September 1–15 must have all harvested geese checked possession limits, season length, and and November 1–January 15. In and classified to subspecies. The daily shooting hours must be uniform within Arizona, during the first segment of the bag limit is 4 daily and 8 in possession. specific hunting zones. season, the daily bag limit is 10 The Canada goose season will close in mourning and white-winged doves in all of the permit areas if the total dusky Central Management Unit the aggregate. During the remainder of goose (as defined above) harvest reaches For all States except Texas: the season, the daily bag limit is 10 40. Hunting Seasons and Daily Bag mourning doves. In California, the daily D. In Units 9, 10, 17, and 18, dark Limits: Not more than 70 days, with a bag limit is 10 mourning and white- goose limits are 6 per day, 12 in daily bag limit of 15 mourning and winged doves in the aggregate. possession. white-winged doves in the aggregate. Brant—A daily bag limit of 2 and a Zoning and Split Seasons: States may Alaska possession limit of 4. select hunting seasons in each of two Outside Dates: Between September 1 Common snipe—A daily bag limit of zones. The season within each zone may and January 26. 8. be split into not more than three Hunting Seasons: Alaska may select Sandhill cranes—Bag and possession periods. 107 consecutive days for waterfowl, limits of 2 and 4, respectively, in the Texas: sandhill cranes, and common snipe in Southeast, Gulf Coast, Kodiak, and Hunting Seasons and Daily Bag each of 5 zones. The season may be split Aleutian Zones, and Unit 17 in the Limits: Not more than 70 days, with a without penalty in the Kodiak Zone. Northern Zone. In the remainder of the daily bag limit of 15 mourning, white- The seasons in each zone must be Northern Zone (outside Unit 17), bag winged, and white-tipped doves in the concurrent. and possession limits of 3 and 6, aggregate, of which no more than 2 may Closures: The hunting season is respectively. be white-tipped doves. closed on emperor geese, spectacled Tundra Swans—Open seasons for Zoning and Split Seasons: Texas may eiders, and Steller’s eiders. tundra swans may be selected subject to select hunting seasons for each of three Daily Bag and Possession Limits: the following conditions: zones subject to the following Ducks—Except as noted, a basic daily A. All seasons are by registration conditions: bag limit of 7 and a possession limit of permit only. A. The hunting season may be split 21 ducks. Daily bag and possession B. All season framework dates are into not more than two periods, except limits in the North Zone are 10 and 30, September 1—October 31. in that portion of Texas in which the and in the Gulf Coast Zone, they are 8 C. In Game Management Unit (GMU) special white-winged dove season is and 24. The basic limits may include no 17, no more than 200 permits may be allowed, where a limited mourning more than 1 canvasback daily and 3 in issued during this operational season. dove season may be held concurrently possession and may not include sea No more than 3 tundra swans may be with that special season (see Special ducks. authorized per permit, with no more White-winged Dove Area). In addition to the basic duck limits, than 1 permit issued per hunter per B. A season may be selected for the Alaska may select sea duck limits of 10 season. North and Central Zones between daily, 20 in possession, singly or in the D. In Game Management Unit (GMU) September 1 and January 25; and for the aggregate, including no more than 6 18, no more than 500 permits may be South Zone between the Friday nearest each of either harlequin or long-tailed issued during the operational season. September 20 (September 23), but not ducks. Sea ducks include scoters, Up to 3 tundra swans may be authorized

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per permit. No more than 1 permit may pintail, West Indian whistling duck, for all permitted migratory game birds be issued per hunter per season. fulvous whistling duck, and masked must not exceed 3 and 6 birds, E. In GMU 22, no more than 300 duck, which are protected by the respectively, singly or in the aggregate, permits may be issued during the Commonwealth of Puerto Rico. The during extended falconry seasons, any operational season. Each permittee may season also is closed on the purple special or experimental seasons, and be authorized to take up to 3 tundra gallinule, American coot, and Caribbean regular hunting seasons in all States, swans per permit. No more than 1 coot. including those that do not select an permit may be issued per hunter per Closed Areas: There is no open season extended falconry season. season. on ducks, common moorhens, and Regular Seasons: General hunting F. In GMU 23, no more than 300 common snipe in the Municipality of regulations, including seasons and permits may be issued during the Culebra and on Desecheo Island. hunting hours, apply to falconry in each operational season. No more than 3 State listed in 50 CFR 21.29. Regular Virgin Islands tundra swans may be authorized per season bag and possession limits do not permit, with no more than 1 permit Doves and Pigeons apply to falconry. The falconry bag limit issued per hunter per season. Outside Dates: Between September 1 is not in addition to gun limits. Hawaii and January 15. Area, Unit, and Zone Descriptions Hunting Seasons: Not more than 60 Outside Dates: Between October 1 and Doves January 31. days for Zenaida doves. Hunting Seasons: Not more than 65 Daily Bag and Possession Limits: Not Alabama to exceed 10 Zenaida doves. days (75 under the alternative) for South Zone—Baldwin, Barbour, Closed Seasons: No open season is mourning doves. Coffee, Covington, Dale, Escambia, prescribed for ground or quail doves or Bag Limits: Not to exceed 15 (12 Geneva, Henry, Houston, and Mobile pigeons. under the alternative) mourning doves. Counties. Closed Areas: There is no open season North Zone—Remainder of the State. Note: Mourning doves may be taken in for migratory game birds on Ruth Cay Hawaii in accordance with shooting hours (just south of St. Croix). California and other regulations set by the State of Hawaii, and subject to the applicable Local Names for Certain Birds: White-winged Dove Open Areas— provisions of 50 CFR part 20. Zenaida dove, also known as mountain Imperial, Riverside, and San Bernardino dove; bridled quail-dove, also known as Counties. Puerto Rico Barbary dove or partridge; common ground-dove, also known as stone dove, Florida Doves and Pigeons tobacco dove, rola, or tortolita; scaly- Northwest Zone—The Counties of Outside Dates: Between September 1 naped pigeon, also known as red-necked Bay, Calhoun, Escambia, Franklin, and January 15. or scaled pigeon. Gadsden, Gulf, Holmes, Jackson, Hunting Seasons: Not more than 60 Ducks Liberty, Okaloosa, Santa Rosa, Walton, days. Washington, Leon (except that portion Daily Bag and Possession Limits: Not Outside Dates: Between December 1 north of U.S. 27 and east of State Road to exceed 20 Zenaida, mourning, and and January 31. 155), Jefferson (south of U.S. 27, west of white-winged doves in the aggregate, of Hunting Seasons: Not more than 55 State Road 59 and north of U.S. 98), and which not more than 10 may be Zenaida consecutive days. Wakulla (except that portion south of doves and 3 may be mourning doves. Daily Bag Limits: Not to exceed 6. U.S. 98 and east of the St. Marks River). Not to exceed 5 scaly-naped pigeons. Closed Seasons: The season is closed South Zone—Remainder of State. Closed Seasons: The season is closed on the ruddy duck, white-cheeked on the white-crowned pigeon and the pintail, West Indian whistling duck, Louisiana plain pigeon, which are protected by the fulvous whistling duck, and masked North Zone—That portion of the State Commonwealth of Puerto Rico. duck. north of a line extending east from the Closed Areas: There is no open season Special Falconry Regulations Texas border along State Highway 12 to on doves or pigeons in the following U.S. Highway 190, east along U.S. 190 areas: Municipality of Culebra, Falconry is a permitted means of to Interstate Highway 12, east along Desecheo Island, Mona Island, El Verde taking migratory game birds in any State Interstate 12 to Interstate Highway 10, Closure Area, and Cidra Municipality meeting Federal falconry standards in then east along Interstate Highway 10 to and adjacent areas. 50 CFR 21.29. These States may select the Mississippi border. an extended season for taking migratory South Zone—The remainder of the Ducks, Coots, Moorhens, Gallinules, and game birds in accordance with the State. Snipe following: Outside Dates: Between October 1 and Extended Seasons: For all hunting Mississippi January 31. methods combined, the combined North Zone—That portion of the State Hunting Seasons: Not more than 55 length of the extended season, regular north and west of a line extending west days may be selected for hunting ducks, season, and any special or experimental from the Alabama State line along U.S. common moorhens, and common snipe. seasons must not exceed 107 days for Highway 84 to its junction with State The season may be split into two any species or group of species in a Highway 35, then south along State segments. geographical area. Each extended season Highway 35 to the Louisiana State line. Daily Bag Limits: may be divided into a maximum of 3 South Zone—The remainder of Ducks—Not to exceed 6. segments. Mississippi. Common moorhens—Not to exceed 6. Framework Dates: Seasons must fall Common snipe—Not to exceed 8. between September 1 and March 10. Texas Closed Seasons: The season is closed Daily Bag and Possession Limits: North Zone—That portion of the State on the ruddy duck, white-cheeked Falconry daily bag and possession limits north of a line beginning at the

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International Bridge south of Fort South Zone—The remainder of the along NY 22 to U.S. 4, northeast along Hancock; north along FM 1088 to TX 20; State. U.S. 4 to the Vermont border. west along TX 20 to TX 148; north along Eastern Long Island Goose Area Special September Canada Goose TX 148 to I–10 at Fort Hancock; east (North Atlantic Population (NAP) High Seasons along I–10 to I–20; northeast along I–20 Harvest Area)—That area of Suffolk to I–30 at Fort Worth; northeast along Atlantic Flyway County lying east of a continuous line I–30 to the Texas–Arkansas State line. extending due south from the New South Zone—That portion of the State Connecticut York-Connecticut boundary to the south and west of a line beginning at the North Zone—That portion of the State northernmost end of Roanoke Avenue in International Bridge south of Del Rio, north of I–95. the Town of Riverhead; then south on proceeding east on U.S. 90 to State Loop South Zone—The remainder of the Roanoke Avenue (which becomes 1604 west of San Antonio; then south, State. County Route 73) to State Route 25; then east, and north along Loop 1604 to west on Route 25 to Peconic Avenue; Maryland Interstate Highway 10 east of San then south on Peconic Avenue to Antonio; then east on I–10 to Orange, Eastern Unit—Calvert, Caroline, Cecil, County Route (CR) 104 (Riverleigh Texas. Dorchester, Harford, Kent, Queen Avenue); then south on CR 104 to CR 31 Special White-winged Dove Area in Anne’s, St. Mary’s, Somerset, Talbot, (Old Riverhead Road); then south on CR the South Zone—That portion of the Wicomico, and Worcester Counties; and 31 to Oak Street; then south on Oak State south and west of a line beginning that part of Anne Arundel County east Street to Potunk Lane; then west on at the International Bridge south of Del of Interstate 895, Interstate 97 and Route Stevens Lane; then south on Jessup Rio, proceeding east on U.S. 90 to State 3; that part of Prince George’s County Avenue (in Westhampton Beach) to Loop 1604 west of San Antonio, east of Route 3 and Route 301; and that Dune Road (CR 89); then due south to southeast on State Loop 1604 to part of Charles County east of Route 301 international waters. Interstate Highway 35, southwest on to the Virginia State line. Western Long Island Goose Area Interstate Highway 35 to TX 44; east Western Unit—Allegany, Baltimore, (Resident Population (RP) Area)—That along TX 44 to TX 16 at Freer; south Carroll, Frederick, Garrett, Howard, area of Westchester County and its tidal along TX 16 to FM 649 in Randado; Montgomery, and Washington Counties waters southeast of Interstate Route 95 south on FM 649 to FM 2686; east on and that part of Anne Arundel County and that area of Nassau and Suffolk FM 2686 to FM 1017; southeast on FM west of Interstate 895, Interstate 97 and Counties lying west of a continuous line 1017 to TX 186 at Linn; east along TX Route 3; that part of Prince George’s extending due south from the New 186 to the Mansfield Channel at Port County west of Route 3 and Route 301; York-Connecticut boundary to the Mansfield; east along the Mansfield and that part of Charles County west of northernmost end of the Sunken Channel to the Gulf of Mexico. Route 301 to the Virginia State line. Meadow State Parkway; then south on Area with additional restrictions— Massachusetts the Sunken Meadow Parkway to the Cameron, Hidalgo, Starr, and Willacy Sagtikos State Parkway; then south on Counties. Western Zone—That portion of the the Sagtikos Parkway to the Robert Central Zone—That portion of the State west of a line extending south Moses State Parkway; then south on the State lying between the North and South from the Vermont border on I–91 to MA Robert Moses Parkway to its Zones. 9, west on MA 9 to MA 10, south on MA southernmost end; then due south to Band-Tailed Pigeons 10 to U.S. 202, south on U.S. 202 to the international waters. Connecticut border. Central Long Island Goose Area (NAP California Central Zone—That portion of the Low Harvest Area)—That area of Suffolk North Zone—Alpine, Butte, Del Norte, State east of the Berkshire Zone and County lying between the Western and Glenn, Humboldt, Lassen, Mendocino, west of a line extending south from the Eastern Long Island Goose Areas, as Modoc, Plumas, Shasta, Sierra, New Hampshire border on I–95 to U.S. defined above. Siskiyou, Tehama, and Trinity Counties. 1, south on U.S. 1 to I–93, south on Western Zone—That area west of a South Zone—The remainder of the I–93 to MA 3, south on MA 3 to U.S. line extending from Lake Ontario east State. 6, west on U.S. 6 to MA 28, west on MA along the north shore of the Salmon 28 to I–195, west to the Rhode Island New Mexico River to I–81, and south along I–81 to border; except the waters, and the lands the Pennsylvania border. North Zone—North of a line following 150 yards inland from the high-water Northeastern Zone—That area north U.S. 60 from the Arizona State line east mark, of the Assonet River upstream to of a line extending from Lake Ontario to I–25 at Socorro and then south along the MA 24 bridge, and the Taunton east along the north shore of the Salmon I–25 from Socorro to the Texas State River upstream to the Center St.-Elm St. River to I–81, south along I–81 to NY 49, line. bridge will be in the Coastal Zone. east along NY 49 to NY 365, east along South Zone—The remainder of the Coastal Zone—That portion of NY 365 to NY 28, east along NY 28 to State. Massachusetts east and south of the NY 29, east along NY 29 to I–87, north Washington Central Zone. along I–87 to U.S. 9 (at Exit 20), north along U.S. 9 to NY 149, east along NY Western Washington—The State of New York 149 to U.S. 4, north along U.S. 4 to the Washington excluding those portions Lake Champlain Zone—The U.S. Vermont border, exclusive of the Lake lying east of the Pacific Crest Trail and portion of Lake Champlain and that area Champlain Zone. east of the Big White Salmon River in east and north of a line extending along Southeastern Zone—The remaining Klickitat County. NY 9B from the Canadian border to U.S. portion of New York. Woodcock 9, south along U.S. 9 to NY 22 south of Keesville; south along NY 22 to the west North Carolina New Jersey shore of South Bay, along and around Northeast Hunt Unit—Camden, North Zone—That portion of the State the shoreline of South Bay to NY 22 on Chowan, Currituck, Dare, Hyde, north of NJ 70. the east shore of South Bay; southeast Pasquotank, Perquimans, Tyrrell, and

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Washington Counties; that portion of along Pine Bluff-Lorenzo Road to Highway 6 to Echo Avenue; then north Bertie County north and east of a line Illinois Route 47, north along Illinois along Echo Avenue to 250th Street; then formed by NC 45 at the Washington Route 47 to I–80, west along I–80 to I– east on 250th Street to Green Castle County line to US 17 in Midway, US 17 39, south along I–39 to Illinois Route 18, Avenue; then north along Green Castle in Midway to US 13 in Windsor to the west along Illinois Route 18 to Illinois Avenue to County Road F12; then west Hertford County line; and that portion Route 29, south along Illinois Route 29 along County Road F12 to County Road of Northampton County that is north of to Illinois Route 17, west along Illinois W30; then north along County Road US 158 and east of NC 35. Route 17 to the Mississippi River, and W30 to Highway 151; then north along due south across the Mississippi River the Linn–Benton County line to the Pennsylvania to the Iowa border. point of beginning. Southern James Bay Population (SJBP) Central Zone—That portion of the Des Moines Goose Zone—Includes Zone—The area north of I–80 and west State outside the Northeast Canada those portions of Polk, Warren, Madison of I–79, including in the city of Erie Goose Zone and south of the North Zone and Dallas Counties bounded as follows: west of Bay Front Parkway to and to a line extending west from the Beginning at the intersection of including the Lake Erie Duck Zone Indiana border along Interstate Highway Northwest 158th Avenue and County (Lake Erie, Presque Isle, and the area 70 to Illinois Route 4, south along Road R38 in Polk County; then south within 150 yards of the Lake Erie Illinois Route 4 to Illinois Route 161, along R38 to Northwest 142nd Avenue; Shoreline). west along Illinois Route 161 to Illinois then east along Northwest 142nd Vermont Route 158, south and west along Illinois Avenue to Northeast 126th Avenue; Route 158 to Illinois Route 159, south then east along Northeast 126th Avenue Lake Champlain Zone—The U.S. along Illinois Route 159 to Illinois Route to Northeast 46th Street; then south portion of Lake Champlain and that area 156, west along Illinois Route 156 to A along Northeast 46th Street to Highway north and west of the line extending Road, north and west on A Road to 931; then east along Highway 931 to from the New York border along U.S. 4 Levee Road, north on Levee Road to the Northeast 80th Street; then south along to VT 22A at Fair Haven; VT 22A to U.S. south shore of New Fountain Creek, Northeast 80th Street to Southeast 6th 7 at Vergennes; U.S. 7 to the Canadian west along the south shore of New Avenue; then west along Southeast 6th border. Fountain Creek to the Mississippi River, Avenue to Highway 65; then south and Interior Zone—That portion of and due west across the Mississippi west along Highway 65 to Highway 69 Vermont west of the Lake Champlain River to the Missouri border. in Warren County; then south along Zone and eastward of a line extending South Zone—The remainder of Highway 69 to County Road G24; then from the Massachusetts border at Illinois. west along County Road G24 to Interstate 91; north along Interstate 91 to Iowa Highway 28; then southwest along US 2; east along US 2 to VT 102; north Highway 28 to 43rd Avenue; then north along VT 102 to VT 253; north along VT North Zone—That portion of the State along 43rd Avenue to Ford Street; then 253 to the Canadian border. north of U.S. Highway 20. west along Ford Street to Filmore Street; Connecticut River Zone—The South Zone—The remainder of Iowa. then west along Filmore Street to 10th remaining portion of Vermont east of Cedar Rapids/Iowa City Goose Zone— Avenue; then south along 10th Avenue the Interior Zone. Includes portions of Linn and Johnson to 155th Street in Madison County; then Counties bounded as follows: Beginning Mississippi Flyway west along 155th Street to Cumming at the intersection of the west border of Road; then north along Cumming Road Arkansas Linn County and Linn County Road to Badger Creek Avenue; then north Early Canada Goose Area—Baxter, E2W; then south and east along County along Badger Creek Avenue to County Benton, Boone, Carroll, Clark, Conway, Road E2W to Highway 920; then north Road F90 in Dallas County; then east Crawford, Faulkner, Franklin, Garland, along Highway 920 to County Road E16; along County Road F90 to County Road Hempstead, Hot Springs, Howard, then east along County Road E16 to R22; then north along County Road R22 Johnson, Lafayette, Little River, Logan, County Road W58; then south along to Highway 44; then east along Highway Madison, Marion, Miller, Montgomery, County Road W58 to County Road E34; 44 to County Road R30; then north Newton, Perry, Pike, Polk, Pope, then east along County Road E34 to along County Road R30 to County Road Pulaski, Saline, Searcy, Sebastian, Highway 13; then south along Highway F31; then east along County Road F31 Sevier, Scott, Van Buren, Washington, 13 to Highway 30; then east along to Highway 17; then north along and Yell Counties. Highway 30 to Highway 1; then south Highway 17 to Highway 415 in Polk along Highway 1 to Morse Road in County; then east along Highway 415 to Illinois Johnson County; then east along Morse Northwest 158th Avenue; then east Northeast Canada Goose Zone—Cook, Road to Wapsi Avenue; then south along Northwest 158th Avenue to the Du Page, Grundy, Kane, Kankakee, along Wapsi Avenue to Lower West point of beginning. Kendall, Lake, McHenry, and Will Branch Road; then west along Lower Cedar Falls/Waterloo Goose Zone— Counties. West Branch Road to Taft Avenue; then Includes those portions of Black Hawk North Zone—That portion of the State south along Taft Avenue to County Road County bounded as follows: Beginning outside the Northeast Canada Goose F62; then west along County Road F62 at the intersection of County Roads C66 Zone and north of a line extending west to Kansas Avenue; then north along and V49 in Black Hawk County, then from the Indiana border along Peotone- Kansas Avenue to Black Diamond Road; south along County Road V49 to County Beecher Road to Illinois Route 50, south then west on Black Diamond Road to Road D38, then west along County Road along Illinois Route 50 to Wilmington- Jasper Avenue; then north along Jasper D38 to State Highway 21, then south Peotone Road, west along Wilmington- Avenue to Rohert Road; then west along along State Highway 21 to County Road Peotone Road to Illinois Route 53, north Rohert Road to Ivy Avenue; then north D35, then west along County Road D35 along Illinois Route 53 to New River along Ivy Avenue to 340th Street; then to Grundy Road, then north along Road, northwest along New River Road west along 340th Street to Half Moon Grundy Road to County Road D19, then to Interstate Highway 55, south along Avenue; then north along Half Moon west along County Road D19 to Butler I–55 to Pine Bluff-Lorenzo Road, west Avenue to Highway 6; then west along Road, then north along Butler Road to

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County Road C57, then north and east Trunk Highway (STH) 32, north along Sullivan, Unicoi, Union, Van Buren, along County Road C57 to U.S. Highway STH 32 to STH 92, east along STH 92 Warren, Washington, and White 63, then south along U.S. Highway 63 to to County State Aid Highway (CSAH) 2 Counties. County Road C66, then east along in Polk County, north along CSAH 2 to Wisconsin County Road C66 to the point of CSAH 27 in Pennington County, north beginning. along CSAH 27 to STH 1, east along Early-Season Subzone A—That STH 1 to CSAH 28 in Pennington portion of the State encompassed by a Minnesota County, north along CSAH 28 to CSAH line beginning at the intersection of U.S. Twin Cities Metropolitan Canada 54 in Marshall County, north along Highway 141 and the Michigan border Goose Zone— CSAH 54 to CSAH 9 in Roseau County, near Niagara, then south along U.S. 141 A. All of Hennepin and Ramsey north along CSAH 9 to STH 11, west to State Highway 22, west and Counties. along STH 11 to STH 310, and north southwest along State 22 to U.S. 45, B. In Anoka County, all of Columbus along STH 310 to the Manitoba border. south along U.S. 45 to State 22, west Township lying south of County State Southeast Goose Zone—That part of and south along State 22 to State 110, Aid Highway (CSAH) 18, Anoka the State within the following described south along State 110 to U.S. 10, south County; all of the cities of Ramsey, boundaries: beginning at the along U.S. 10 to State 49, south along Andover, Anoka, Coon Rapids, Spring intersection of U.S. Highway 52 and the State 49 to State 23, west along State 23 Lake Park, Fridley, Hilltop, Columbia south boundary of the Twin Cities to State 73, south along State 73 to State Heights, Blaine, Lexington, Circle Pines, Metro Canada Goose Zone; then along 60, west along State 60 to State 23, Lino Lakes, and Centerville; and all of the U.S. Highway 52 to State Trunk south along State 23 to State 11, east the city of Ham Lake except that portion Highway (STH) 57; then along STH 57 along State 11 to State 78, then south lying north of CSAH 18 and east of U.S. to the municipal boundary of Kasson; along State 78 to the Illinois border. Highway 65. then along the municipal boundary of Early-Season Subzone B—The C. That part of Carver County lying Kasson County State Aid Highway remainder of the State. north and east of the following (CSAH) 13, Dodge County; then along Central Flyway described line: Beginning at the CSAH 13 to STH 30; then along STH 30 northeast corner of San Francisco to U.S. Highway 63; then along U.S. Nebraska Township; then west along the north Highway 63 to the south boundary of September Canada Goose Unit—That boundary of San Francisco Township to the State; then along the south and east part of Nebraska bounded by a line from the east boundary of Dahlgren boundaries of the State to the south the Nebraska-Iowa State line west on Township; then north along the east boundary of the Twin Cities Metro U.S. Highway 30 to US Highway 81, boundary of Dahlgren Township to U.S. Canada Goose Zone; then along said then south on US Highway 81 to NE Highway 212; then west along U.S. boundary to the point of beginning. Highway 64, then east on NE Highway Highway 212 to State Trunk Highway Five Goose Zone—That portion of the 64 to NE Highway 15, then south on NE (STH) 284; then north on STH 284 to State not included in the Twin Cities Highway 15 to NE Highway 41, then County State Aid Highway (CSAH) 10; Metropolitan Canada Goose Zone, the east on NE Highway 41 to NE Highway then north and west on CSAH 10 to Northwest Goose Zone, or the Southeast 50, then north on NE Highway 50 to NE CSAH 30; then north and west on CSAH Goose Zone. Highway 2, then east on NE Highway 2 30 to STH 25; then east and north on West Zone—That portion of the State to the Nebraska-Iowa State line. STH 25 to CSAH 10; then north on encompassed by a line beginning at the CSAH 10 to the Carver County line. junction of State Trunk Highway (STH) North Dakota D. In Scott County, all of the cities of 60 and the Iowa border, then north and Missouri River Canada Goose Zone— Shakopee, Savage, Prior Lake, and east along STH 60 to U.S. Highway 71, The area within and bounded by a line Jordan, and all of the Townships of north along U.S. 71 to I–94, then north starting where ND Hwy 6 crosses the Jackson, Louisville, St. Lawrence, Sand and west along I–94 to the North Dakota South Dakota border; then north on ND Creek, Spring Lake, and Credit River. border. Hwy 6 to I–94; then west on I–94 to ND E. In Dakota County, all of the cities Hwy 49; then north on ND Hwy 49 to Tennessee of Burnsville, Eagan, Mendota Heights, ND Hwy 200; then north on Mercer Mendota, Sunfish Lake, Inver Grove Middle Tennessee Zone—Those County Rd. 21 to the section line Heights, Apple Valley, Lakeville, portions of Houston, Humphreys, between sections 8 and 9 (T146N– Rosemount, Farmington, Hastings, Montgomery, Perry, and Wayne R87W); then north on that section line Lilydale, West St. Paul, and South St. Counties east of State Highway 13; and to the southern shoreline to Lake Paul, and all of the Township of Bedford, Cannon, Cheatham, Coffee, Sakakawea; then east along the southern Nininger. Davidson, Dickson, Franklin, Giles, shoreline (including Mallard Island) of F. That portion of Washington County Hickman, Lawrence, Lewis, Lincoln, Lake Sakakawea to US Hwy 83; then lying south of the following described Macon, Marshall, Maury, Moore, south on US Hwy 83 to ND Hwy 200; line: Beginning at County State Aid Robertson, Rutherford, Smith, Sumner, then east on ND Hwy 200 to ND Hwy Highway (CSAH) 2 on the west Trousdale, Williamson, and Wilson 41; then south on ND Hwy 41 to US boundary of the county; then east on Counties. Hwy 83; then south on US Hwy 83 to CSAH 2 to U.S. Highway 61; then south East Tennessee Zone—Anderson, I–94; then east on I–94 to US Hwy 83; on U.S. Highway 61 to State Trunk Bledsoe, Bradley, Blount, Campbell, then south on US Hwy 83 to the South Highway (STH) 97; then east on STH 97 Carter, Claiborne, Clay, Cocke, Dakota border; then west along the to the intersection of STH 97 and STH Cumberland, DeKalb, Fentress, South Dakota border to ND Hwy 6. 95; then due east to the east boundary Grainger, Greene, Grundy, Hamblen, Rest of State: Remainder of North of the State. Hamilton, Hancock, Hawkins, Jackson, Dakota. Northwest Goose Zone—That portion Jefferson, Johnson, Knox, Loudon, of the State encompassed by a line Marion, McMinn, Meigs, Monroe, South Dakota extending east from the North Dakota Morgan, Overton, Pickett, Polk, Putnam, Special Early Canada Goose Unit— border along U.S. Highway 2 to State Rhea, Roane, Scott, Sequatchie, Sevier, Entire State of South Dakota except the

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Counties of Bennett, Gregory, Hughes, NY 9B from the Canadian border to U.S. Iowa Lyman, Perkins, and Stanley; that 9, south along U.S. 9 to NY 22 south of North Zone—That portion of the State portion of Potter County west of US Keesville; south along NY 22 to the west north of a line extending east from the Highway 83; that portion of Bon shore of South Bay, along and around Nebraska border along State Highway Homme, Brule, Buffalo, Charles Mix, the shoreline of South Bay to NY 22 on 175 to State Highway 37, southeast and Hyde County south and west of a the east shore of South Bay; southeast along State Highway 37 to State line beginning at the Hughes-Hyde along NY 22 to U.S. 4, northeast along Highway 183, northeast along State County line of SD Highway 34, east to U.S. 4 to the Vermont border. Highway 183 to State Highway 141, east Lees Boulevard, southeast to SD 34, east Long Island Zone—That area along State Highway 141 to U.S. 7 miles to 350th Avenue, south to I–90, consisting of Nassau County, Suffolk Highway 30, then east along U.S. south and east on SD Highway 50 to County, that area of Westchester County Highway 30 to the Illinois border. Geddes, east on 285th Street to US southeast of I–95, and their tidal waters. South Zone—The remainder of Iowa. Highway 281, south on US Highway 281 Western Zone—That area west of a to SD 50, east and south on SD 50 to the line extending from Lake Ontario east Central Flyway Bon Homme-Yankton County boundary; along the north shore of the Salmon Colorado that portion of Fall River County east of River to I–81, and south along I–81 to Special Teal Season Area—Lake and SD Highway 71 and US Highway 385; the Pennsylvania border. that portion of Custer County east of SD Chaffee Counties and that portion of the Northeastern Zone—That area north State east of Interstate Highway 25. Highway 79 and south of French Creek; of a line extending from Lake Ontario that portion of Dewey County south of east along the north shore of the Salmon Kansas BIA Road 8, BIA Road 9, and the section River to I–81, south along I–81 to NY 49, High Plains Zone—That portion of the of US 212 east of BIA Road 8 junction. east along NY 49 to NY 365, east along State west of U.S. 283. Pacific Flyway NY 365 to NY 28, east along NY 28 to Low Plains Early Zone—That area of NY 29, east along NY 29 to I–87, north Kansas east of U.S. 283, and generally Idaho along I–87 to U.S. 9 (at Exit 20), north west of a line beginning at the Junction East Zone—Bonneville, Caribou, along U.S. 9 to NY 149, east along NY of the Nebraska State line and KS 28; Fremont, and Teton Counties. 149 to U.S. 4, north along U.S. 4 to the south on KS 28 to U.S. 36; east on U.S. Vermont border, exclusive of the Lake Oregon 36 to KS 199; south on KS 199 to Champlain Zone. Republic Co. Road 563; south on Northwest Zone—Benton, Clackamas, Southeastern Zone—The remaining Republic Co. Road 563 to KS 148; east Clatsop, Columbia, Lane, Lincoln, Linn, portion of New York. on KS 148 to Republic Co. Road 138; Marion, Polk, Multnomah, Tillamook, south on Republic Co. Road 138 to Maryland Washington, and Yamhill Counties. Cloud Co. Road 765; south on Cloud Co. Southwest Zone—Coos, Curry, Special Teal Season Area—Calvert, Road 765 to KS 9; west on KS 9 to U.S. Douglas, Jackson, Josephine, and Caroline, Cecil, Dorchester, Harford, 24; west on U.S. 24 to U.S. 281; north Klamath Counties. Kent, Queen Anne’s, St. Mary’s, on U.S. 281 to U.S. 36; west on U.S. 36 East Zone—Baker, Gilliam, Malheur, Somerset, Talbot, Wicomico, and to U.S. 183; south on U.S. 183 to U.S. Morrow, Sherman, Umatilla, Union, and Worcester Counties; that part of Anne 24; west on U.S. 24 to KS 18; southeast Wasco Counties. Arundel County east of Interstate 895, on KS 18 to U.S. 183; south on U.S. 183 Washington Interstate 97, and Route 3; that part of to KS 4; east on KS 4 to I–135; south on Area 1—Skagit, Island, and Prince Georges County east of Route 3 I–135 to KS 61; southwest on KS 61 to Snohomish Counties. and Route 301; and that part of Charles KS 96; northwest on KS 96 to U.S. 56; Area 2A (SW Quota Zone)—Clark County east of Route 301 to the Virginia west on U.S. 56 to U.S. 281; south on County, except portions south of the State Line. U.S. 281 to U.S. 54; west on U.S. 54 to U.S. 183; north on U.S. 183 to U.S. 56; Washougal River; Cowlitz County; and Mississippi Flyway Wahkiakum County. and southwest on U.S. 56 to U.S. 283. Area 2B (SW Quota Zone)—Pacific Indiana Low Plains Late Zone—The remainder of Kansas. County. North Zone—That portion of the State Area 3—All areas west of the Pacific north of a line extending east from the Nebraska Crest Trail and west of the Big White Illinois border along State Road 18 to Salmon River that are not included in Special Teal Season Area—That U.S. Highway 31, north along U.S. 31 to portion of the State south of a line Areas 1, 2A, and 2B. U.S. 24, east along U.S. 24 to Area 4—Adams, Benton, Chelan, beginning at the Wyoming State line; Huntington, then southeast along U.S. Douglas, Franklin, Grant, Kittitas, east along U.S. 26 to Nebraska Highway 224 to the Ohio border. Lincoln, Okanogan, Spokane, and Walla L62A east to U.S. 385; south to U.S. 26; Walla Counties. Ohio River Zone—That portion of the east to NE 92; east along NE. 92 to NE. Area 5—All areas east of the Pacific State south of a line extending east from 61; south along NE. 61 to U.S. 30; east Crest Trail and east of the Big White the Illinois border along Interstate along U.S. 30 to the Iowa border. Salmon River that are not included in Highway 64 to New Albany, east along High Plains—That portion of Area 4. State Road 62 to State 56, east along Nebraska lying west of a line beginning State 56 to Vevay, east and north on at the South Dakota-Nebraska border on Ducks State 156 along the Ohio River to North U.S. Hwy. 183; south on U.S. Hwy. 183 Atlantic Flyway Landing, north along State 56 to U.S. to U.S. Hwy. 20; west on U.S. Hwy. 20 Highway 50, then northeast along U.S. to NE. Hwy. 7; south on NE. Hwy. 7 to New York 50 to the Ohio border. NE Hwy. 91; southwest on NE. Hwy. 91 Lake Champlain Zone—The U.S. South Zone—That portion of the State to NE. Hwy. 2; southeast on NE. Hwy. portion of Lake Champlain and that area between the North and Ohio River Zone 2 to NE. Hwy. 92; west on NE. Hwy. 92 east and north of a line extending along boundaries. to NE Hwy. 40; south on NE. Hwy. 40

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to NE. Hwy. 47; south on NE. Hwy. 47 River Road; west to Sargent Road; west the California-Oregon State line to the to NE. Hwy. 23; east on NE. Hwy. 23 to to Milburn Road; north to Blaine County point of origin. U.S. Hwy. 283; and south on U.S. Hwy. Line; east to Loup County Line; north to Colorado River Zone—Those portions 283 to the Kansas-Nebraska border. NE. Hwy. 91; west to North Loup Spur of San Bernardino, Riverside, and Low Plains Zone 1—That portion of Road; north to North Loup Road; east to Imperial Counties east of a line Dixon County west of NE. Hwy. 26E Pleasant Valley/Worth Road; east to extending from the Nevada border south Spur and north of NE. Hwy. 12; those Loup County Line; north to Loup-Brown along U.S. 95 to Vidal Junction; south portions of Cedar and Knox Counties county line; east along northern on a road known as ‘‘Aqueduct Road’’ north of NE. Hwy. 12; that portion of boundaries of Loup, Garfield and in San Bernardino County through the Keya Paha County east of U.S. Hwy. Wheeler counties; south on the town of Rice to the San Bernardino- 183; and all of Boyd County. Both banks Wheeler-Antelope county line to NE. Riverside County line; south on a road of the Niobrara River in Keya Paha and Hwy. 70; east to NE. Hwy. 14; south to known in Riverside County as the Boyd counties east of U.S. 183 shall be NE. Hwy. 39; southeast to NE. Hwy. 22; ‘‘Desert Center to Rice Road’’ to the included in Zone 1. east to U.S. Hwy. 81; southeast to U.S. town of Desert Center; east 31 miles on Low Plains Zone 2—Area bounded by Hwy. 30; east to U.S. Hwy. 75; north to I–10 to the Wiley Well Road; south on designated Federal and State highways the Washington County line; east to the this road to Wiley Well; southeast along and political boundaries beginning at Iowa-Nebraska border; south along the the Army-Milpitas Road to the Blythe, the Kansas-Nebraska border on U.S. Iowa-Nebraska border; to the beginning Brawley, Davis Lake intersections; south Hwy. 75 to U.S. Hwy. 136; east to the at U.S. Hwy. 75 and the Kansas- on the Blythe-Brawley paved road to the intersection of U.S. Hwy. 136 and the Nebraska border. Ogilby and Tumco Mine Road; south on Steamboat Trace (Trace); north along the Low Plains Zone 3—The area east of this road to U.S. 80; east 7 miles on U.S. Trace to the intersection with Federal the High Plains Zone, excluding Low 80 to the Andrade-Algodones Road; Levee R–562; north along Federal Levee Plains Zone 1, north of Low Plains Zone south on this paved road to the Mexican R–562 to the intersection with the border at Algodones, Mexico. Trace; north along the Trace/Burlington 2. Low Plains Zone 4—The area east of Southern Zone—That portion of Northern Railroad right-of-way to NE southern California (but excluding the Hwy. 2; west to U.S. Hwy. 75; north to the High Plains Zone and south of Zone 2. Colorado River Zone) south and east of NE. Hwy. 2; west to NE Hwy. 43; north a line extending from the Pacific Ocean to U.S. Hwy. 34; east to NE. Hwy. 63; New Mexico (Central Flyway Portion) east along the Santa Maria River to CA north and west to U.S. Hwy. 77; north 166 near the City of Santa Maria; east on North Zone—That portion of the State to NE. Hwy. 92; west to County Road X; CA 166 to CA 99; south on CA 99 to the north of I–40 and U.S. 54. south to County Road 21 (Seward crest of the Tehachapi Mountains at County Line); west to NE. Hwy. 15; South Zone—The remainder of New Tejon Pass; east and north along the north to County Road 34; west to Mexico. crest of the Tehachapi Mountains to CA County Road J; south to NE Hwy. 92; Pacific Flyway 178 at Walker Pass; east on CA 178 to west to U.S. 81; south to NE. 66; west U.S. 395 at the town of Inyokern; south to County Road C; north to NE. Hwy. 92; California on U.S. 395 to CA 58; east on CA 58 to west to U.S. Hwy. 30; west to NE. Hwy. Northeastern Zone—In that portion of I–15; east on I–15 to CA 127; north on 14; south to County Road 22 (Hamilton CA 127 to the Nevada border. County); west to County Road M; south California lying east and north of a line beginning at the intersection of Southern San Joaquin Valley to County Road 21; west to County Road Temporary Zone—All of Kings and K; south U.S. Hwy. 34; west to NE. Hwy. Interstate 5 with the California-Oregon line; south along Interstate 5 to its Tulare Counties and that portion of 2; south to U.S. Hwy. I–80; west to Kern County north of the Southern Gunbarrel Road (Hall/Hamilton county junction with Walters Lane south of the Zone. line); south to Giltner Road; west to U.S. town of Yreka; west along Walters Lane to its junction with Easy Street; south Balance-of-the-State Zone—The Hwy. 281; south to U.S. Hwy. 34; west remainder of California not included in to NE. Hwy. 10; north to County Road along Easy Street to the junction with the Northeastern, Southern, and ‘‘R’’ (Kearney County) and County Road Old Highway 99; south along Old Colorado River Zones, and the Southern #742 (Phelps County); west to County Highway 99 to the point of intersection San Joaquin Valley Temporary Zone. Road #438 (Gosper County line); south with Interstate 5 north of the town of along County Road #438 (Gosper County Weed; south along Interstate 5 to its Canada Geese line) to County Road #726 (Furnas junction with Highway 89; east and Michigan County line); east to County Road #438 south along Highway 89 to Main Street (Harlan County line); south to U.S. Hwy. Greenville; north and east to its junction Mississippi Valley Population (MVP)- 34; south and west to U.S. Hwy. 136; with North Valley Road; south to its Upper Peninsula Zone—The MVP- east to U.S. Hwy. 183; north to NE. junction of Diamond Mountain Road; Upper Peninsula Zone consists of the Hwy. 4; east to NE. Hwy. 10; south to north and east to its junction with North entire Upper Peninsula of Michigan. U.S. Hwy 136; east to NE. Hwy. 14; Arm Road; south and west to the MVP-Lower Peninsula Zone—The south to the Kansas-Nebraska border; junction of North Valley Road; south to MVP-Lower Peninsula Zone consists of west to U.S. Hwy. 283; north to NE. the junction with Arlington Road (A22); the area within the Lower Peninsula of Hwy. 23; west to NE. Hwy. 47; north to west to the junction of Highway 89; Michigan that is north and west of the U.S. Hwy. 30; east to County Road 13; south and west to the junction of point beginning at the southwest corner north to County Road O; east to NE. Highway 70; east on Highway 70 to of Branch County, north continuing Hwy. 14; north to NE. Hwy. 52; west Highway 395; south and east on along the western border of Branch and and north to NE. Hwy. 91; west to U.S. Highway 395 to the point of intersection Calhoun Counties to the northwest Hwy. 281; south to NE. Hwy. 22; west with the California-Nevada State line; corner of Calhoun County, then east to to NE. Hwy. 11; northwest to NE. Hwy. north along the California-Nevada State the southwest corner of Eaton County, 91; west to U.S. Hwy. 183; south to line to the junction of the California- then north to the southern border of Round Valley Road; west to Sargent Nevada-Oregon State lines west along Ionia County, then east to the southwest

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corner of Clinton County, then north Middle Rio Grande Valley Area—The 62 to the Texas-Oklahoma State line, along the western border of Clinton Central Flyway portion of New Mexico then south along the Texas-Oklahoma County continuing north along the in Socorro and Valencia Counties. State line to the south bank of the Red county border of Gratiot and Montcalm Estancia Valley Area—Those portions River, then eastward along the Counties to the southern border of of Santa Fe, Torrance and Bernallilo vegetation line on the south bank of the Isabella county, then east to the Counties within an area bounded on the Red River to U.S. Highway 81. southwest corner of Midland County, west by New Mexico Highway 55 Zone C—The remainder of the State, then north along the west Midland beginning at Mountainair north to NM except for the closed areas. County border to Highway M–20, then 337, north to NM 14, north to I–25; on Closed areas—(A) That portion of the easterly to U.S. Highway 10, then the north by I–25 east to U.S. 285; on State lying east and north of a line easterly to I–75/U.S. 23, then northerly the east by U.S. 285 south to U.S. 60; beginning at the junction of U.S. along I–75/U.S. 23 and easterly on U.S. and on the south by U.S. 60 from U.S. Highway 81 and the Texas-Oklahoma 23 to the centerline of the Au Gres 285 west to NM 55 in Mountainair. State line, then southeast along U.S. River, then southerly along the Southwest Zone—Area bounded on Highway 81 to its junction with U.S. centerline of the Au Gres River to the south by the New Mexico/Mexico Highway 287 in Montague County, then Saginaw Bay, then on a line directly east border; on the west by the New Mexico/ southeast along U.S. Highway 287 to its 10 miles into Saginaw Bay, and from Arizona border north to Interstate 10; on junction with Interstate Highway 35W that point on a line directly northeast to the north by Interstate 10 east to U.S. in Fort Worth, then southwest along the Canadian border. 180, north to N.M. 26, east to N.M. 27, Interstate Highway 35 to its junction SJBP Zone—The rest of the State, that north to N.M. 152, and east to Interstate with U.S. Highway 290 East in Austin, area south and east of the boundary 25; on the east by Interstate 25 south to then east along U.S. Highway 290 to its described above. Interstate 10, west to the Luna county junction with Interstate Loop 610 in line, and south to the New Mexico/ Harris County, then south and east Sandhill Cranes Mexico border. along Interstate Loop 610 to its junction Mississippi Flyway North Dakota with Interstate Highway 45 in Houston, then south on Interstate Highway 45 to Area 1—That portion of the State west Minnesota State Highway 342, then to the shore of of U.S. 281. Northwest Goose Zone—That portion Area 2—That portion of the State east the Gulf of Mexico, and then north and of the State encompassed by a line of U.S. 281. east along the shore of the Gulf of extending east from the North Dakota Oklahoma—That portion of the State Mexico to the Texas-Louisiana State border along U.S. Highway 2 to State west of I–35. line. Trunk Highway (STH) 32, north along South Dakota—That portion of the (B) That portion of the State lying STH 32 to STH 92, east along STH 92 State west of U.S. 281. within the boundaries of a line to County State Aid Highway (CSAH) 2 beginning at the Kleberg-Nueces County Texas in Polk County, north along CSAH 2 to line and the shore of the Gulf of Mexico, CSAH 27 in Pennington County, north Zone A—That portion of Texas lying then west along the County line to Park along CSAH 27 to STH 1, east along west of a line beginning at the Road 22 in Nueces County, then north STH 1 to CSAH 28 in Pennington international toll bridge at Laredo, then and west along Park Road 22 to its County, north along CSAH 28 to CSAH northeast along U.S. Highway 81 to its junction with State Highway 358 in 54 in Marshall County, north along junction with Interstate Highway 35 in Corpus Christi, then west and north CSAH 54 to CSAH 9 in Roseau County, Laredo, then north along Interstate along State Highway 358 to its junction north along CSAH 9 to STH 11, west Highway 35 to its junction with with State Highway 286, then north along STH 11 to STH 310, and north Interstate Highway 10 in San Antonio, along State Highway 286 to its junction along STH 310 to the Manitoba border. then northwest along Interstate Highway with Interstate Highway 37, then east 10 to its junction with U.S. Highway 83 along Interstate Highway 37 to its Central Flyway at Junction, then north along U.S. junction with U.S. Highway 181, then Colorado—The Central Flyway Highway 83 to its junction with U.S. north and west along U.S. Highway 181 portion of the State except the San Luis Highway 62, 16 miles north of to its junction with U.S. Highway 77 in Valley (Alamosa, Conejos, Costilla, Childress, then east along U.S. Highway Sinton, then north and east along U.S. Hinsdale, Mineral, Rio Grande, and 62 to the Texas-Oklahoma State line. Highway 77 to its junction with U.S. Saguache Counties east of the Zone B—That portion of Texas lying Highway 87 in Victoria, then south and Continental Divide) and North Park within boundaries beginning at the east along U.S. Highway 87 to its (Jackson County). junction of U.S. Highway 81 and the junction with State Highway 35 at Port Texas-Oklahoma State line, then Lavaca, then north and east along State Kansas—That portion of the State southeast along U.S. Highway 81 to its Highway 35 to the south end of the west of a line beginning at the junction with U.S. Highway 287 in Lavaca Bay Causeway, then south and Oklahoma border, north on I–35 to Montague County, then southeast along east along the shore of Lavaca Bay to its Wichita, north on I–135 to Salina, and U.S. Highway 287 to its junction with junction with the Port Lavaca Ship north on U.S. 81 to the Nebraska border. Interstate Highway 35W in Fort Worth, Channel, then south and east along the Montana—The Central Flyway then southwest along Interstate Lavaca Bay Ship Channel to the Gulf of portion of the State except for that area Highway 35 to its junction with Mexico, and then south and west along south and west of Interstate 90, which Interstate Highway 10 in San Antonio, the shore of the Gulf of Mexico to the is closed to sandhill crane hunting. then northwest along Interstate Highway Kleberg-Nueces County line. 10 to its junction with U.S. Highway 83 New Mexico Wyoming in the town of Junction, then north Regular-Season Open Area—Chaves, along U.S. Highway 83 to its junction Regular Season Open Area— Curry, De Baca, Eddy, Lea, Quay, and with U.S. Highway 62, 16 miles north of Campbell, Converse, Crook, Goshen, Roosevelt Counties. Childress, then east along U.S. Highway Laramie, Niobrara, Platte, and Weston

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Counties, and portions of Johnson and Wyoming El Verde Closure Area—Those areas Sheridan Counties. Bear River Area—That portion of of the municipalities of Rio Grande and Riverton-Boysen Unit—Portions of Lincoln County described in State Loiza delineated as follows: (1) All Fremont County. regulations. lands between Routes 956 on the west Salt River Area—That portion of and 186 on the east, from Route 3 on the Park and Big Horn County Unit—All Lincoln County described in State north to the juncture of Routes 956 and of Big Horn, Hot Springs, Park and regulations. 186 (Km 13.2) in the south; (2) all lands Washakie Counties. Farson-Eden Area—Those portions of between Routes 186 and 966 from the Pacific Flyway Sweetwater and Sublette Counties juncture of 186 and 966 on the north, to described in State regulations. the Caribbean National Forest Boundary Arizona Uinta County Area—That portion of on the south; (3) all lands lying west of Uinta County described in State Route 186 for 1 kilometer from the Special Season Area—Game regulations. juncture of Routes 186 and 956 south to Management Units 30A, 30B, 31, and All Migratory Game Birds in Alaska Km 6 on Route 186; (4) all lands within 32. Km 14 and Km 6 on the west and the North Zone—State Game Management Montana Caribbean National Forest Boundary on Units 11–13 and 17–26. the east; and (5) all lands within the Special Season Area—See State Gulf Coast Zone—State Game Caribbean National Forest Boundary regulations. Management Units 5–7, 9, 14–16, and whether private or public. 10 (Unimak Island only). Utah Southeast Zone—State Game Cidra Municipality and adjacent Management Units 1–4. areas—All of Cidra Municipality and Special Season Area—Rich, Cache, Pribilof and Aleutian Islands Zone— portions of Aguas Buenas, Caguas, and Unitah Counties and that portion of State Game Management Unit 10 (except Cayey, and Comerio Municipalities as Box Elder County beginning on the Unimak Island). encompassed within the following Utah-Idaho State line at the Box Elder- Kodiak Zone—State Game boundary: beginning on Highway 172 as Cache County line; west on the State Management Unit 8. it leaves the municipality of Cidra on line to the Pocatello Valley County All Migratory Game Birds in the Virgin the west edge, north to Highway 156, Road; south on the Pocatello Valley Islands east on Highway 156 to Highway 1, County Road to I–15; southeast on I–15 south on Highway 1 to Highway 765, to SR–83; south on SR–83 to Lamp Ruth Cay Closure Area—The island of south on Highway 765 to Highway 763, Junction; west and south on the Ruth Cay, just south of St. Croix. south on Highway 763 to the Rio Promontory Point County Road to the All Migratory Game Birds in Puerto Rico Guavate, west along Rio Guavate to Highway 1, southwest on Highway 1 to tip of Promontory Point; south from Municipality of Culebra Closure Highway 14, west on Highway 14 to Promontory Point to the Box Elder- Area—All of the municipality of Highway 729, north on Highway 729 to Weber County line; east on the Box Culebra. Cidra Municipality boundary to the Elder-Weber County line to the Box Desecheo Island Closure Area—All of point of the beginning. Elder-Cache County line; north on the Desecheo Island. Box Elder-Cache County line to the Mona Island Closure Area—All of [FR Doc. 2011–21987 Filed 8–29–11; 8:45 am] Utah–Idaho State line. Mona Island. BILLING CODE 4310–55–P

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Reader Aids Federal Register Vol. 76, No. 168 Tuesday, August 30, 2011

CUSTOMER SERVICE AND INFORMATION CFR PARTS AFFECTED DURING AUGUST

Federal Register/Code of Federal Regulations At the end of each month the Office of the Federal Register General Information, indexes and other finding 202–741–6000 publishes separately a List of CFR Sections Affected (LSA), which aids lists parts and sections affected by documents published since Laws 741–6000 the revision date of each title. Presidential Documents 3 CFR 273...... 51274, 51907 Executive orders and proclamations 741–6000 276...... 51274 Proclamations: The United States Government Manual 741–6000 277...... 52581 8696...... 46183 319...... 46209 Other Services 8697...... 49277 402...... 50929 Electronic and on-line services (voice) 741–6020 8698...... 49647 906...... 49381 Privacy Act Compilation 741–6064 8699...... 53809 920...... 48742 Public Laws Update Service (numbers, dates, etc.) 741–6043 Executive Orders: 923...... 46651 TTY for the deaf-and-hard-of-hearing 741–6086 13582...... 52209 948...... 53842 13583...... 52847 984...... 50703 ELECTRONIC RESEARCH Administrative Orders: 1150...... 53844 Notices: World Wide Web Notice of July 28, 8 CFR Full text of the daily Federal Register, CFR and other publications 2011 ...... 45653 is located at: www.fdsys.gov. 1...... 53764 Notice of August 12, 100...... 53764 Federal Register information and research tools, including Public 2011 ...... 50661 103...... 53764 Inspection List, indexes, and links to GPO Access are located at: Presidential 204...... 53764 www.ofr.gov. Determinations: 207...... 53764 E-mail No. 2011–12 of August 208...... 53764 FEDREGTOC-L (Federal Register Table of Contents LISTSERV) is 8, 2011 ...... 53297 209...... 53764 an open e-mail service that provides subscribers with a digital No. 2011–13 of August 211...... 53764 form of the Federal Register Table of Contents. The digital form 10, 2011 ...... 53299 212...... 53764 of the Federal Register Table of Contents includes HTML and 213a...... 53764 PDF links to the full text of each document. 5 CFR 214...... 53764 To join or leave, go to http://listserv.access.gpo.gov and select 293...... 52533 223...... 53764 Online mailing list archives, FEDREGTOC-L, Join or leave the list 532...... 52537, 53045 235...... 53764 (or change settings); then follow the instructions. 550...... 52537 236...... 53764 PENS (Public Law Electronic Notification Service) is an e-mail 843...... 52539 238...... 53764 service that notifies subscribers of recently enacted laws. Proposed Rules: 240...... 53764 To subscribe, go to http://listserv.gsa.gov/archives/publaws-l.html 213...... 47495 241...... 53764 and select Join or leave the list (or change settings); then follow 250...... 47516 244...... 53764 the instructions. 302...... 47495 245...... 53764 FEDREGTOC-L and PENS are mailing lists only. We cannot 315...... 47495 245a...... 53764 respond to specific inquiries. 330...... 47495 248...... 53764 Reference questions. Send questions and comments about the 334...... 47495 264...... 53764 Federal Register system to: fedreg.infonara.gov 362...... 47495 265...... 53764 The Federal Register staff cannot interpret specific documents or 530...... 45710 270...... 53764 regulations. 531...... 45710, 47495 274a...... 53764 Reminders. Effective January 1, 2009, the Reminders, including 536...... 45710, 47495 287...... 53764 Rules Going Into Effect and Comments Due Next Week, no longer 550...... 47495 292...... 53764 appear in the Reader Aids section of the Federal Register. This 575...... 47495 299...... 53764 information can be found online at http://www.regulations.gov. 733...... 52287 301...... 53764 CFR Checklist. Effective January 1, 2009, the CFR Checklist no 890...... 47495 310...... 53764 longer appears in the Federal Register. This information can be 312...... 53764 6 CFR found online at http://bookstore.gpo.gov/. 316...... 53764 Proposed Rules: 319...... 53764 FEDERAL REGISTER PAGES AND DATE, AUGUST 31...... 46908 320...... 53764 322...... 53764 7 CFR 45653–46184...... 1 52209–52532...... 22 324...... 53764 46185–46594...... 2 52533–52850...... 23 2...... 52851 325...... 53764 46595–47054...... 3 52851–53044...... 24 205...... 46595 328...... 53764 47055–47422...... 4 53045–53300...... 25 301...... 52541, 52543 329...... 53764 319...... 52544 47423–47984...... 5 53301–53630...... 26 330...... 53764 927...... 53811 47985–48712...... 8 53631–53810...... 29 332...... 53764 48713–49278...... 9 946...... 48713 333...... 53764 53811–54070...... 30 49279–49648...... 10 993...... 53813 334...... 53764 49649–50110...... 11 1217...... 46185, 53816 335...... 53764 50111–50402...... 12 1730...... 47055 336...... 53764 50403–50660...... 15 2902...... 53631 337...... 53764 50661–50880...... 16 3201...... 53631 338...... 53764 50881–51244...... 17 3202...... 53631 339...... 53764 51245–51868...... 18 Proposed Rules: 340...... 53764 51869–52208...... 19 272...... 51907 341...... 53764

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342...... 53764 Ch. III ...... 47652 210...... 50117 50887, 51878, 51879, 52556, 343...... 53764 908...... 53596 229...... 46603, 50117 53818, 53819 343a...... 53764 1204...... 51869 230...... 46603, 50117 17...... 51879 343b...... 53764 1209...... 53596 232...... 46603, 47438 20...... 49570 343c ...... 53764 1780...... 53596 239...... 46603, 50117 25...... 49570 392...... 53764 Proposed Rules: 240 ...... 46603, 46960, 50117, 51...... 51245 499...... 53764 240...... 46652 52549 54...... 46621 Proposed Rules: 615...... 51289, 53344 249 ...... 46603, 46960, 50117, 301...... 52259, 52561 100...... 52890 52549 602...... 51245, 52556 14 CFR 270...... 50117 Proposed Rules: 9 CFR 33...... 47423 274...... 50117 1...... 50931, 51922 93...... 52547 39 ...... 45655, 45657, 46597, Proposed Rules: 31...... 50949 161...... 52548 47056, 47424, 47427, 47430, 1 ...... 45724, 45730, 47526 40...... 46677 201...... 50881 50111, 50113, 50115, 50403, 23 ...... 45724, 45730, 47526 49...... 46677 Proposed Rules: 50405, 50881, 52213, 52217, 39...... 45730, 47526 51...... 51310 71...... 50082 52220, 52222, 52225, 53046, 71...... 46212 54 ...... 46677, 52442, 52475 77...... 50082 53301, 53303, 53305, 53308, 229...... 47948 602...... 52442 230...... 47948, 49698 78...... 50082 53312, 53315, 53317, 53324, 239...... 47948 27 CFR 90...... 50082 53326, 53633 240...... 46668 65...... 47058 24...... 52862 10 CFR 249...... 47948 71 ...... 47060, 47061, 47435, 25...... 52862 429...... 46202 49285, 52229, 52230, 53048, 18 CFR 26...... 52862 430 ...... 46202, 52852, 52854 40...... 52862 53049, 53328, 53636 35...... 49842 433...... 49279 41...... 52862 91...... 52231 260...... 52253 435...... 49279 70...... 52862 95...... 46202 292...... 50663 Proposed Rules: 97 ...... 47985, 47988, 52237, Proposed Rules: Ch. I ...... 53847 Proposed Rules: 52239 357...... 46668 40...... 52913 26...... 46651 119...... 52231 41...... 52913 40...... 47085 121...... 52241 19 CFR 44...... 52913 429...... 48745, 49238 125...... 52231 159...... 50883, 52862 45...... 52913 430 ...... 47518, 49238, 50145, 133...... 52231 46...... 52913 52892 Proposed Rules: 137...... 52231 10...... 51914 431 ...... 47518, 48745, 50148, 141...... 52231 29 CFR 51281 101...... 52890 142...... 52231 163...... 51914 9...... 53720 12 CFR 145...... 52231 104...... 54006 147...... 52231 20 CFR 2590...... 46621 100...... 48950 Proposed Rules: 4022...... 50413 108...... 48950 655...... 45667 39 ...... 45713, 47520, 47522, Proposed Rules: 109...... 48950 48045, 48047, 48049, 48749, 21 CFR 2590...... 52442, 52475 112...... 48950 50152, 50706, 52288, 52593, 14...... 53816 116...... 48950 52899, 52901, 53346, 53348 520 ...... 48714, 49649, 53050 30 CFR 128...... 48950 71 ...... 49383, 49385, 49386, 522...... 48714, 53050 133...... 48950 Proposed Rules: 49387, 49388, 49390, 50156, 524...... 48714 136...... 48950 917...... 50436 52290, 52291, 52292, 52596, 866...... 48715 141...... 48950 943...... 50708 52905, 53352, 53353, 53354, 870...... 50663 143...... 48950 1206...... 52294 53355, 53356, 53358, 53359, 884...... 50663 144...... 48950 53360, 53361 886...... 51876 31 CFR 145...... 48950 Proposed Rules: 10...... 49650 146...... 48950 15 CFR 73...... 49707 1010...... 45689 150...... 48950 101...... 46671, 49707 151...... 48950 744...... 50407 573...... 48751 32 CFR 152...... 48950 Proposed Rules: Ch. VII...... 47527 870 ...... 47085, 48058, 53851 159...... 49650 155...... 48950 882...... 48062 157...... 48950 801...... 50158 319...... 49658, 49659 159...... 48950 22 CFR 323...... 49661 16 CFR 160...... 48950 126...... 47990 33 CFR 161...... 48950 3...... 52249 4...... 52249 Proposed Rules: 162...... 48950 228...... 51916 100 ...... 52236, 52563, 52865, 163...... 48950 310...... 53636 53329, 53337 164...... 48950 Ch. II...... 46598, 49286 23 CFR 117 ...... 45690, 47440, 48717, 1450...... 47436 165...... 48950 Proposed Rules: 49300, 49662, 49663, 49664, 167...... 48950 Proposed Rules: 655...... 46213 50123, 50124, 51885, 52565, 168...... 48950 239...... 52596 52566, 52567, 53341, 53342 169...... 48950 305...... 45715 24 CFR 165 ...... 45693, 46626, 47441, 170...... 48950 424...... 51308 Proposed Rules: 47993, 47996, 48718, 49301, 171...... 48950 700...... 52596 202...... 53362 49664, 49666, 50124, 50667, 172...... 48950 701...... 52596 203...... 53851 50669, 50680, 51255, 51887, 174...... 48950 702...... 52596 52266, 52268, 52269, 52569, 190...... 48950 703...... 52596 25 CFR 53051, 53054, 53337, 53820, 191...... 48950 1130...... 48053 542...... 53817 53822, 53824, 53827, 53829 192...... 48950 543...... 53817 Proposed Rules: 17 CFR 193...... 48950 Proposed Rules: 110...... 52599 194...... 48950 35...... 49291 Ch. III...... 47089, 50436 117 ...... 50161, 50950, 52602 195...... 48950 40...... 45666 165 ...... 45738, 48070, 48751, 196...... 48950 165...... 53172 26 CFR 50710 197...... 48950 200...... 46603 1 ...... 45673, 49300, 49570, 167...... 47529

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Subch. S ...... 53364 745...... 47918 157...... 51202 383...... 50433 763...... 49669 170...... 48769 390...... 50433 34 CFR 563...... 47478 Proposed Rules: 46 CFR 668...... 52271 50...... 46084, 48073 567...... 53072 52 ...... 45741, 47090, 47092, Proposed Rules: 571 ...... 48009, 52880, 53648 37 CFR 47094, 48754, 49391, 49708, 1 ...... 45908, 46217, 48101 591...... 53072 370...... 45695 49711, 51314, 51922, 51925, 2...... 47531, 49976 592...... 53072 382...... 45695 51927, 52604, 52623, 52917, 10 ...... 45908, 46217, 48101 593...... 53072 53369, 53853 11 ...... 45908, 46217, 48101 595...... 47078 38 CFR 12 ...... 45908, 46217, 48101 60...... 52738, 53371 1002...... 46628 13 ...... 45908, 46217, 48101 1...... 51890 63...... 52738, 53371 1515...... 51848, 53080 14 ...... 45908, 46217, 48101 2...... 51890 72...... 50164 1520...... 51848, 53080 3...... 52572 75...... 50164 15 ...... 45908, 46217, 49976 28...... 51317 1522...... 51848, 53080 17...... 52272 81...... 53853 1540...... 51848, 53080 20...... 52572 85...... 48758 136...... 49976 137...... 49976 1544...... 51848, 53080 21...... 45697, 49669 86...... 48758 1546...... 51848, 53080 51...... 52274 98...... 47392 138...... 49976 139...... 49976 1548...... 51848, 53080 63...... 52575 174...... 49396 1549...... 51848, 53080 180...... 49396, 53372 140...... 49976 Proposed Rules: 39 CFR 260...... 48073, 53376 141...... 49976 142...... 49976 171...... 50332, 51324 20...... 50414, 53056 261...... 48073, 53376 143...... 49976 172...... 50332, 51324 111...... 48722, 51257 270...... 53376 144...... 49976 173...... 50332, 51324 775...... 53037 300 ...... 49397, 50164, 50441, 401...... 47095, 50713 174...... 50332, 51324 912...... 52580 51316 175...... 50332 370...... 48093 47 CFR Proposed Rules: 176...... 50332 111...... 50438 600...... 48758 1...... 49333, 49364 177...... 50332 3020...... 51311 721...... 46678 2...... 49364 178...... 50332 3050...... 52915 41 CFR 25...... 49364, 50425 179...... 51272 64...... 47469, 47476 40 CFR Proposed Rules: 180...... 51272 73...... 49364, 49697 192...... 53086 1...... 49669 60...... 49398 90...... 51271 236...... 52918 2...... 49669 Ch. 301 ...... 46216 Proposed Rules: 531...... 48758 9...... 47996 42 CFR 9...... 47114 533...... 48758 21...... 49669 36...... 49401 50...... 53256 571...... 53102, 53660 35...... 49669 54...... 49401, 50969 412...... 47836, 51476 580...... 48101 49...... 49669 61...... 49401 413...... 48486, 51476 51...... 48208 64...... 49401, 52625 418...... 47302 52 ...... 45705, 47062, 47068, 69...... 49401 50 CFR 47074, 47076, 47443, 48002, 476...... 51476 73...... 52632 17 ...... 46632, 47490, 48722, 48006, 48208, 49303, 49313, Proposed Rules: 49542, 50052, 50680, 53224 49669, 50128, 50891, 51264, 5...... 50442, 53377 48 CFR 18...... 47010 51901, 51903, 52275, 52278, 430...... 46684 201...... 52139 20...... 54052 52283, 52388, 52867, 53638, 431...... 51148 209...... 52138 80...... 46150 53640 433...... 46684, 51148 216...... 52133 622...... 50143, 51905 59...... 49669 435...... 51148 225...... 52132, 52133 635 ...... 49368, 52886, 53343, 60...... 49669 447...... 46684 245...... 52139 53652 61...... 49669 457...... 46684, 51148 252 ...... 52133, 52138, 52139 648 ...... 47491, 47492, 51272, 62...... 49669 1401...... 50141 43 CFR 52286, 53831, 53832 63...... 49669 1402...... 50141 65...... 49669 Proposed Rules: 1415...... 50141 660...... 53833 72...... 48208, 50129 2...... 52295 1417...... 50141 665...... 52888 75...... 50129 1419...... 50141 679 ...... 45709, 46207, 46208, 44 CFR 78...... 48208 1436...... 50141 47083, 47493, 53658, 53840 82...... 47451, 49669 64...... 49329 1452...... 50141 Proposed Rules: 97...... 48208 65 ...... 49674, 50420, 50423, 1816...... 46206 17 ...... 46218, 46234, 46238, 98...... 53037 50913, 50915, 52879 6101...... 50926 46251, 46362, 47123, 47133, 147...... 49669 67 ...... 49676, 50918, 50920 6103...... 50926 48777, 49202, 49408, 49412, 180 ...... 49318, 50893, 50898, Proposed Rules: 6104...... 50926 50542, 50971, 51929, 52297, 50904, 52871, 52875, 53641 67 ...... 46701, 46705, 46715, 6105...... 50926 53379, 53381 282...... 49669 46716, 50443, 50446, 50952, 9903...... 49365 20...... 48694, 53536 300 ...... 49324, 50133, 50414, 50960, 53082 Proposed Rules: 223...... 50447, 50448 51266 42...... 48776, 50714 224 ...... 49412, 50447, 50448 45 CFR 374...... 49669 204...... 52297 622...... 46718, 50979Q 704...... 50816 94...... 53256 252...... 52297 648 ...... 45742, 47533, 53872 707...... 49669 147...... 46621 9904...... 53377, 53378 660...... 50449 710...... 50816 Proposed Rules: 665...... 46719 711...... 50816 147...... 52442, 52475 49 CFR 679 ...... 49417, 52148, 52301 721...... 47996 155...... 51202 228...... 50360 680...... 49423

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Register but may be ordered H.R. 2715/P.L. 112–28 enacted public laws. To in ‘‘slip law’’ (individual To provide the Consumer subscribe, go to http:// LIST OF PUBLIC LAWS pamphlet) form from the Product Safety Commission listserv.gsa.gov/archives/ Superintendent of Documents, with greater authority and publaws-l.html This is a continuing list of U.S. Government Printing discretion in enforcing the public bills from the current Office, Washington, DC 20402 consumer product safety laws, session of Congress which (phone, 202–512–1808). The and for other purposes. (Aug. Note: This service is strictly have become Federal laws. It text will also be made 12, 2011; 125 Stat. 273) for E-mail notification of new may be used in conjunction available on the Internet from Last List August 5, 2011 laws. The text of laws is not with ‘‘P L U S’’ (Public Laws GPO’s Federal Digital System available through this service. Update Service) on 202–741– (FDsys) at http://www.gpo.gov/ PENS cannot respond to 6043. This list is also fdsys. Some laws may not yet Public Laws Electronic specific inquiries sent to this available online at http:// be available. Notification Service address. www.archives.gov/federal- (PENS) register/laws. H.R. 2553/P.L. 112–27 Airport and Airway Extension The text of laws is not Act of 2011, Part IV (Aug. 5, PENS is a free electronic mail published in the Federal 2011; 125 Stat. 270) notification service of newly

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