Vol. 76 Thursday, No. 135 July 14, 2011

Pages 41375–41588

OFFICE OF THE FEDERAL REGISTER

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Contents Federal Register Vol. 76, No. 135

Thursday, July 14, 2011

Agriculture Department Environmental Protection Agency See Foreign Agricultural Service RULES See Forest Service Findings of Substantial Inadequacy of Implementation NOTICES Plans: Agency Information Collection Activities; Proposals, Call for Iowa State Implementation Plan Revision, 41424– Submissions, and Approvals, 41448–41450 41429 PROPOSED RULES Army Department Approvals and Promulgations of Air Quality NOTICES Implementation Plans: Meetings: Virginia; Infrastructure Requirements for the 1997 8-Hour Board of Visitors, United States Military Academy, 41490 Ozone Standards, etc., 41444–41446 Approvals and Promulgations of Implementation Plans: Arts and Humanities, National Foundation California; 2007 South Coast PM2.5 Plan and 2007 State See National Foundation on the Arts and the Humanities Strategy, 41562–41584 NOTICES Centers for Disease Control and Prevention Regional Waivers of Section 1605 (Buy American NOTICES Requirement) of ARRA of 2009: Affordable Care Act Funding Awards, 41501 City of Ocean Shores, WA, 41495–41497 Commerce Department Executive Office of the President See International Trade Administration See National Oceanic and Atmospheric Administration See Presidential Documents NOTICES Agency Information Collection Activities; Proposals, Export-Import Bank Submissions, and Approvals, 41452 NOTICES Meetings; Sunshine Act, 41497 Commodity Futures Trading Commission RULES Federal Aviation Administration Prohibition on the Employment, or Attempted Employment, RULES of Manipulative and Deceptive Devices; Prohibition on Airworthiness Directives: Price Manipulation, 41398–41411 General Electric Co. GE90–76B; GE90–77B; GE90–85B; GE90–90B; and GE90–94B Turbofan Engines, 41395– Comptroller of the Currency 41397 RULES Establishments of Class E Airspace: Retail Foreign Exchange Transactions, 41375–41392 Florence, OR, 41397 PROPOSED RULES Consumer Product Safety Commission Airworthiness Directives: NOTICES Gulfstream Aerospace LP Model Galaxy, Gulfstream Proposed Settlement Agreements: G150, and Gulfstream 200 Airplanes, 41432–41434 Macy’s, Inc., 41487–41489 Pratt and Whitney Division PW4000 Series Turbofan Engines, 41430–41432 Defense Department See Army Department Federal Communications Commission Education Department NOTICES NOTICES Privacy Act; Systems of Records, 41497–41500 Agency Information Collection Activities; Proposals, Submissions, and Approvals, 41490–41491 Federal Deposit Insurance Corporation Applications for New Awards: RULES Arts in Education National Program, 41491–41495 Interest on Deposits; Deposit Insurance Coverage, 41392– 41395 Employment and Training Administration NOTICES Federal Election Commission Amended Certifications Regarding Eligibility to Apply for NOTICES Worker Adjustment Assistance: Meetings; Sunshine Act, 41500 Steelcase, Inc., North America Division, Grand Rapids, MI, 41523–41524 Federal Highway Administration Investigations Regarding Certifications Of Eligibility To NOTICES Apply For Worker Adjustment Assistance And Environmental Impact Statements; Availability, etc.: Alternative Trade Adjustment Assistance, 41524–41525 Highway 35, between Norfolk and South Sioux City, NE; Terminations of Certifications: Rescission, 41554 Hewlett Packard Global Parts Supply Chain, Houston, Final Federal Agency Actions on Proposed Highway in TX, 41525 California, 41554–41555

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Federal Railroad Administration Indian Affairs Bureau NOTICES NOTICES Environmental Impact Statements; Availability, etc.: Reservation Proclamations: Tupelo, MS, Railroad Relocation Project, 41555–41556 Bowlin North Property, as Addition to Pueblo of Laguna Petitions for Waivers of Compliance, 41556–41557 Reservation, NM, 41513–41515 Community College Campus, as Addition to Bay Mills Federal Reserve System Indian Community of Michigan, 41515 NOTICES Maier Property, as Addition to Bay Mills Indian Changes in Bank Control: Community of Michigan, 41515 Acquisitions of Shares of a Bank or Bank Holding Company, 41500 Interior Department See Fish and Wildlife Service Federal Retirement Thrift Investment Board See Indian Affairs Bureau NOTICES See Land Management Bureau Meetings; Sunshine Act, 41500 See National Park Service See Surface Mining Reclamation and Enforcement Office Fish and Wildlife Service NOTICES International Trade Administration Environmental Impact Statements; Availability, etc.: NOTICES Commercial Wind Energy Developments within Nine Antidumping Duty Administrative Reviews; 2010–2011 States, 41510–41513 Rescissions: Certain Tissue Paper Products from People’s Republic of Food and Drug Administration China, 41452–41453 PROPOSED RULES Removal of Certain Requirements Related to Prescription Drug Marketing Act: International Trade Commission Opportunity for Public Comment, 41434–41438 NOTICES NOTICES Complaints, 41521 Agency Information Collection Activities; Proposals, Investigations: Submissions, and Approvals: Certain Integrated Circuits, Chipsets, and Products Adverse Experience Reporting for Licensed Biological Containing Same Including Televisions, 41521–41522 Products; and General Records, 41504–41506 Terminations of Investigations: Followup Study for Infant Feeding Practices Study II, Certain Electronic Devices, Including Mobile Phones, 41501–41502 Mobile Tablets, Portable Music Players, and Good Laboratory Practice Regulations for Nonclinical Computers, and Components Thereof, 41522–41523 Studies, 41503–41504 Certain Mobile Communications and Computer Devices Draft Guidance for Industry and FDA Staff; Availability and Components Thereof, 41523 In Vitro Companion Diagnostic Devices, 41506–41507 Meetings: Labor Department Obstetrics and Gynecology Devices Panel of Medical See Employment and Training Administration Devices Advisory Committee, 41507–41508 Land Management Bureau Foreign Agricultural Service NOTICES NOTICES Filings of Plats of Surveys: Agency Information Collection Activities; Proposals, Oregon/Washington, 41515–41516 Submissions, and Approvals, 41450–41451 Meetings: Proposed Withdrawal Extension; Montana; Correction, Forest Service 41516 NOTICES Meetings: White Pine–Nye Resource Advisory Committee, 41451– National Aeronautics and Space Administration 41452 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 41525–41526 Health and Human Services Department Centennial Challenges 2011 Strong Tether Challenge, 41526 See Centers for Disease Control and Prevention See Food and Drug Administration See National Institutes of Health National Foundation on the Arts and the Humanities NOTICES Homeland Security Department Meetings: See Transportation Security Administration Arts and Artifacts Indemnity Panel, 41526–41527

Housing and Urban Development Department National Highway Traffic Safety Administration PROPOSED RULES NOTICES Federal Housing Administration Appraiser Roster: Petitions for Exemptions from the Vehicle Theft Prevention Appraiser Qualifications for Placement on the Appraiser Standard: Roster, 41441–41444 Mazda, 41557–41558

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National Institutes of Health Self-Regulatory Organizations; Proposed Rule Changes: NOTICES BATS Exchange, Inc., 41546–41549 Agency Information Collection Activities; Proposals, BATS Y-Exchange, Inc., 41541–41543 Submissions, and Approvals: EDGX Exchange, Inc., 41544–41546 Research Methodology Studies for National Children’s Financial Industry Regulatory Authority, Inc., 41537– Study, 41508–41509 41539 Meetings: NASDAQ OMX BX, Inc., 41534–41536 Center for Scientific Review, 41509–41510 NASDAQ OMX PHLX LLC, 41536–41537, 41549–41551 New York Stock Exchange LLC, 41551–41552 National Oceanic and Atmospheric Administration NYSE Amex LLC, 41539–41541 PROPOSED RULES Endangered and Threatened Wildlife and Plants: Small Business Administration Revise Critical Habitat for Hawaiian Monk Seals; Public NOTICES Hearings, 41446–41447 Disaster Declarations: NOTICES Arkansas; Amendment 7, 41553 Environmental Impact Statements; Availability, etc.: Minnesota, 41552–41553 Replacement of National Marine Fisheries Service Oklahoma; Amendment 2, 41553 Southwest Fisheries Science Center, La Jolla, CA, Meetings: 41453–41454 Advisory Committee on Veterans Business Affairs, Meetings: 41553–41554 Caribbean Fishery Management Council, 41454–41463 Takes of Marine Mammals Incidental to Specified State Department Activities: Marine Geophysical Survey in the Arctic Ocean, 41463– PROPOSED RULES 41486 International Traffic in Arms Regulations: Taking and Importing Marine Mammals: Filing, Retention, and Return of Export Licenses and Operation and Maintenance of Neptune Liquefied Natural Filing of Export Information, 41440–41441 Gas Facility off Massachusetts, 41486–41487 International Import Certificate, 41438–41440 National Park Service Surface Mining Reclamation and Enforcement Office NOTICES RULES Environmental Impact Statements; Availability, etc.: West Virginia Regulatory Program, 41411 Morristown National Historical Park, New Jersey, 41516– 41517 Surface Transportation Board Meetings: NOTICES Kalaupapa Federal Advisory Commission, 41517 Abandonment Exemptions: U.S. Nominations to World Heritage List, 41517–41521 BNSF Railway Co., Washington County, MN, 41558– 41559 Nuclear Regulatory Commission Discontinuances of Service Exemptions: NOTICES Minnesota Commercial Railway Co., Washington County, Draft Regulatory Guides: MN, 41559 Re-issuance and Availability, 41527–41528 Environmental Assessments; Availability, etc.: Transportation Department Uranium One USA Inc., Irigaray and Christensen Ranch See Federal Aviation Administration Uranium In-Situ Recovery Projects, Wyoming, See Federal Highway Administration 41528–41529 See Federal Railroad Administration Meetings; Sunshine Act, 41529 See National Highway Traffic Safety Administration Merger Applications: See Surface Transportation Board Connecticut Yankee Atomic Power Co., Haddam Neck See Transportation Security Administration Plant, 41530–41532 Yankee Atomic Electric Co., Yankee Nuclear Power Transportation Security Administration Station, 41532–41534 NOTICES Agency Information Collection Activities; Proposals, Postal Service Submissions, and Approvals: RULES Transportation Worker Identification Credential Program, Group E Post Office Box Service, 41411–41413 41510 Post Office Organization and Administration: Establishment, Classification, and Discontinuance, Treasury Department 41413–41424 See Comptroller of the Currency Presidential Documents NOTICES Meetings: EXECUTIVE ORDERS Debt Management Advisory Committee, 41559–41560 Government Agencies and Employees: Regulation and Independent Regulatory Agencies (EO 13579), 41585–41588 Separate Parts In This Issue Securities and Exchange Commission NOTICES Part II Meetings; Sunshine Act, 41534 Environmental Protection Agency, 41562–41584

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Part III To subscribe to the Federal Register Table of Contents Presidential Documents, 41585–41588 LISTSERV electronic mailing list, go to http:// listserv.access.gpo.gov and select Online mailing list archives, FEDREGTOC-L, Join or leave the list (or change Reader Aids settings); then follow the instructions. Consult the Reader Aids section at the end of this page for phone numbers, online resources, finding aids, reminders, and notice of recently enacted public laws.

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CFR PARTS AFFECTED IN THIS ISSUE

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

3 CFR Executive Orders: 13579...... 41587 12 CFR 48...... 41375 329...... 41392 330...... 41392 14 CFR 39...... 41395 71...... 41397 Proposed Rules: 39 (2 documents) ...... 41430, 41432 17 CFR 180...... 41398 21 CFR Proposed Rules: 203...... 41434 22 CFR Proposed Rules: 123 (2 documents) ...... 41438, 41440 24 CFR Proposed Rules: 200...... 41441 30 CFR 948...... 41411 39 CFR 111...... 41411 241...... 41413 40 CFR 52...... 41424 Proposed Rules: 52 (2 documents) ...... 41444, 41562 50 CFR Proposed Rules: 226...... 41446

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Rules and Regulations Federal Register Vol. 76, No. 135

Thursday, July 14, 2011

This section of the FEDERAL REGISTER United States financial institution 3 for transaction except pursuant to retail contains regulatory documents having general which there is a Federal regulatory forex rules issued by the OCC. applicability and legal effect, most of which agency 4 shall not enter into, or offer to In addition, on July 21, 2011, the OCC are keyed to and codified in the Code of enter into, a transaction described in will become the appropriate Federal Federal Regulations, which is published under section 2(c)(2)(B)(i)(I) of the CEA with a banking agency for Federal savings 50 titles pursuant to 44 U.S.C. 1510. retail customer 5 except pursuant to a associations.11 The OCC plans to The Code of Federal Regulations is sold by rule or regulation of a Federal regulatory regulate retail forex transactions the Superintendent of Documents. Prices of agency allowing the transaction under conducted by Federal savings new books are listed in the first FEDERAL such terms and conditions as the associations under the same terms as in REGISTER issue of each week. Federal regulatory agency shall this rule. However, the OCC cannot prescribe 6 (a ‘‘retail forex rule’’). issue regulations governing Federal Section 2(c)(2)(B)(i)(I) includes ‘‘an savings associations until July 21, 2011. DEPARTMENT OF THE TREASURY agreement, contract, or transaction in Therefore, the OCC anticipates issuing foreign currency that * * * is a contract on that date an interim final rule with Office of the Comptroller of the of sale of a commodity for future request for public comment that would Currency delivery (or an option on such a expand the scope of this regulation to contract) or an option (other than an cover Federal savings associations. 12 CFR Part 48 option executed or traded on a national II. Overview of the Proposed Rule and [Docket ID OCC–2011–0010] securities exchange registered pursuant Related Actions to section 6(a) of the Securities RIN 1557–AD42 Exchange Act of 1934 (15 U.S.C. On September 10, 2010, the 78f(a)).’’ 7 A Federal regulatory agency’s Commodity Futures Trading Retail Foreign Exchange Transactions retail forex rule must treat similarly all Commission (CFTC) issued a retail forex such futures and options and all rule for persons subject to its AGENCY: Office of the Comptroller of the jurisdiction.12 On April 22, 2011, the Currency, Department of the Treasury. agreements, contracts, or transactions that are functionally or economically OCC proposed a retail forex rule for ACTION: Final rule. similar to such futures and options.8 national banks modeled on the CFTC’s retail forex rule.13 The OCC decided to SUMMARY: The Office of the Comptroller Retail forex rules must prescribe appropriate requirements with respect model its retail forex rule on the CFTC’s of the Currency (OCC) is adopting a rule to promote regulatory final rule authorizing national banks, to disclosure, recordkeeping, capital and margin, reporting, business conduct, comparability and because the CFTC Federal branches and agencies of foreign developed its retail forex rule with the banks, and their operating subsidiaries and documentation requirements and may include such other standards or benefit of over 9,100 comments from a to engage in off-exchange transactions in range of commenters, including foreign currency with retail customers. requirements as the Federal regulatory agency determines to be necessary.9 individuals who trade forex, The rule also describes various This Dodd-Frank Act amendment to the intermediaries, CFTC registrants requirements with which national CEA takes effect 360 days from the currently serving as counterparties in banks, Federal branches and agencies of enactment of the Act.10 Therefore, as of retail forex transactions, trade foreign banks, and their operating July 16, 2011, national banks, Federal associations or coalitions of industry subsidiaries must comply to conduct branches and agencies of foreign banks, participants, one committee of a county such transactions. and operating subsidiaries of the lawyers’ association, a registered futures DATES: This rule is effective July 15, foregoing (collectively, national banks) association, and numerous law firms 2011. may not engage in a retail forex representing institutional clients. The FOR FURTHER INFORMATION CONTACT: OCC proposed to authorize national Tena Alexander, Senior Counsel, or 3 The CEA defines ‘‘financial institution’’ as banks to engage in retail forex Roman Goldstein, Attorney, Securities including ‘‘a depository institution (as defined in transactions and subject those section 3 of the Federal Deposit Insurance Act (12 and Corporate Practices Division, (202) transactions to requirements relating to U.S.C. 1813)).’’ 7 U.S.C. 1a(21)(E). National banks disclosure, record keeping, capital and 874–5120. are depository institutions. See 12 U.S.C. 1813(a)(1) margin, reporting, business conduct, SUPPLEMENTARY INFORMATION: and (c)(1). 4 For purposes of the retail forex rules, ‘‘Federal and documentation. I. Background regulatory agency’’ includes ‘‘an appropriate On May 17, 2011, the Federal Deposit Federal banking agency.’’ 7 U.S.C. 2(c)(2)(E)(i)(III). Insurance Corporation (FDIC) proposed On July 21, 2010, President Obama The OCC is the appropriate Federal banking agency for national banks and Federal branches and signed into law the Dodd-Frank Wall 11 agencies of foreign banks. 12 U.S.C. 1813(q)(1); Dodd-Frank Act § 312. Street Reform and Consumer Protection 12 Dodd-Frank Act § 721(a)(2) (amending 7 U.S.C. 1a Regulation of Off-Exchange Retail Foreign 1 Act (Dodd-Frank Act). As amended by to define ‘‘appropriate Federal banking agency’’ by Exchange Transactions and Intermediaries, 75 FR the Dodd-Frank Act,2 the Commodity reference to 12 U.S.C. 1813). 55409 (Sept. 10, 2010) (Final CFTC Retail Forex Exchange Act (CEA) provides that a 5 A retail customer is a person that is not an Rule). The CFTC proposed these rules prior to the ‘‘eligible contract participant’’ under the CEA. enactment of the Dodd-Frank Act. Regulation of 6 Off-Exchange Retail Foreign Exchange Transactions 1 Public Law 111–203, 124 Stat. 1376. 7 U.S.C. 2(c)(2)(E)(ii)(I). and Intermediaries, 75 FR 3281 (Jan. 20, 2010) 7 2 Dodd-Frank Act § 742(c)(2) (to be codified at 7 7 U.S.C. 2(c)(2)(B)(i)(II). (Proposed CFTC Retail Forex Rule). U.S.C. 2(c)(2)(E)). In this preamble, citations to the 8 7 U.S.C. 2(c)(2)(E)(iii)(II). 13 Retail Foreign Exchange Transactions, 76 FR retail forex statutory provisions are to the sections 9 7 U.S.C. 2(c)(2)(E)(iii)(I). 22633 (Apr. 22, 2011) (Proposed OCC Retail Forex in which the provisions will be codified in the CEA. 10 See Dodd-Frank Act § 754. Rule).

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a retail forex rule for entities for which The OCC believes that it is The definition of ‘‘retail forex it is the appropriate Federal banking appropriate to apply the NDIP Policy transaction’’ generally includes the agency under the Federal Deposit Statement to retail forex transactions. following transactions in foreign Insurance Act.14 The OCC’s and the The consumer protections that the NDIP currency between a national bank and a FDIC’s proposals were substantially Policy Statement provides are no less person that is not an eligible contract similar. important for retail forex transactions participant: 17 (i) A future or option on than for other nondeposit investment such a future; 18 (ii) options not traded III. Comments on the Proposed Rule products. Moreover, there is no direct on a registered national securities The comment period for the proposed conflict between this rule and the NDIP exchange; 19 and (iii) certain leveraged, OCC retail forex rule ended on May 23, Policy Statement because the statement margined, or bank-financed 2011. The OCC received a total of three requires national banks to develop transactions,20 including rolling spot comments by that date. Of these, one policies and procedures to ensure that forex transactions. The definition was submitted by a large bank that nondeposit investment product sales are generally tracks the statutory language engages in retail forex transactions (the conducted in compliance with in section 2(c)(2)(B) and (C) of the commenter) and two were submitted by applicable laws and regulations.16 If a CEA.21 individuals. The latter two comments national bank has questions regarding Certain transactions in foreign did not relate to the proposal. The how the NDIP Policy Statement applies currency are not ‘‘retail forex commenter generally supported the to its retail forex business, it should transactions.’’ For example, a spot forex OCC’s proposed rule while requesting seek clarification from its examiners. transaction in which one currency is certain clarifications and changes. The bought for another and the two commenter’s comments to specific IV. Section-by-Section Analysis currencies are exchanged within two sections of the proposal are addressed in Section 48.1—Authority, Purpose, and days would not meet the definition of the Section-by-Section Analysis below. Scope ‘‘retail forex transaction.’’ 22 Similarly, In light of the comments received, the ‘‘retail forex transaction’’ does not This section authorizes a national final rule, for the most part, is similar include a forward contract that creates bank to conduct retail forex to the proposed rule; the significant an enforceable obligation to make or transactions. changes are described in the Section-by- take delivery, provided that each The OCC requested comment on Section analysis. counterparty has the ability to deliver whether the retail forex rule should In the preamble to the proposal, the and accept delivery in connection with apply to national banks’ foreign OCC indicated that retail forex its line of business.23 In addition, the branches conducting retail forex transactions are subject to the definition does not include transactions transactions abroad, whether with U.S. Interagency Statement on Retail Sales of conducted through an exchange, or foreign customers. Nondeposit Investment Products (NDIP because in those cases the exchange The commenter responded that there Policy Statement).15 The NDIP Policy is no U.S. policy interest in applying Statement sets out guidance regarding 17 The definition of ‘‘eligible contract participant’’ U.S. consumer protection rules to the OCC’s expectations when a national is found in the CEA and is discussed below. transactions with non-U.S. residents 18 bank engages in the sale of nondeposit 7 U.S.C. 2(c)(2)(B)(i)(I). conducted by foreign branches. Those 19 7 U.S.C. 2(c)(2)(B)(i)(I). investment products to retail customers. transactions are subject to foreign 20 7 U.S.C. 2(c)(2)(C). The NDIP Policy Statement addresses 21 regulatory requirements that could be 7 U.S.C. 2(c)(2)(B) and (C). issues such as disclosure, suitability, 22 inconsistent with the retail forex rule. See generally CFTC v. Int’l Fin. Servs. (New sales practices, compensation, and York), Inc., 323 F. Supp. 2d 482, 495 (S.D.N.Y. Subjecting those transactions to two sets compliance. 2004) (distinguishing between foreign exchange of regulatory requirements would also In the proposal, the OCC asked for futures contracts and spot contracts in foreign place national banks at a competitive exchange, and noting that foreign currency trades comment on whether application of the disadvantage abroad. settled within two days are ordinarily spot NDIP Policy Statement created issues transactions rather than futures contracts); see also The OCC recognizes the concerns that the OCC should address. Bank Brussels Lambert v. Intermetals Corp., 779 F. raised by the commenter. The commenter said that the NDIP Supp. 741, 748 (S.D.N.Y. 1991). Retail forex transactions between a 23 See 7 U.S.C. 2(c)(2)(C)(i)(II)(bb)(BB); CFTC v. Policy Statement should not apply to foreign branch of a national bank and a Int’l Fin. Servs. (New York), Inc., 323 F. Supp. 2d retail forex transactions, asserting that non-U.S. customer are subject to any 482, 495 (S.D.N.Y. 2004) (distinguishing between the retail forex rule, alone, would be forward contracts in foreign exchange and foreign applicable disclosure, recordkeeping, sufficient to protect retail customers, exchange futures contracts); see also William L. capital, margin, reporting, business Stein, The Exchange-Trading Requirement of the and the imposition of the NDIP Policy conduct, documentation, and other Commodity Exchange Act, 41 Vand. L. Rev. 473, Statement on retail forex transactions requirements of applicable foreign law. 491 (1988). In contrast to forward contracts, futures would create confusion and ambiguity. contracts generally include several or all of the Therefore, those transactions are not No specific provisions were identified, following characteristics: (i) Standardized subject to the requirements of §§ 48.3 nonnegotiable terms (other than price and quantity); however, that create confusion or and 48.5 to 48.16. (ii) parties are required to deposit initial margin to ambiguity. The commenter further secure their obligations under the contract; (iii) argued that because the NDIP Policy Section 48.2—Definitions parties are obligated and entitled to pay or receive Statement does not apply to CFTC variation margin in the amount of gain or loss on This section defines terms specific to the position periodically over the period the registrants, its application to retail forex retail forex transactions and to the contract is outstanding; (iv) purchasers and sellers transactions would not promote regulatory requirements that apply to are permitted to close out their positions by selling or purchasing offsetting contracts; and (v) consistent regulatory treatment of retail retail forex transactions. forex transactions. settlement may be provided for by either (a) cash payment through a clearing entity that acts as the 16 There are, of course, differences in the counterparty to both sides of the contract without 14 Retail Foreign Exchange Transactions, 76 FR regulations that generally govern national banks delivery of the underlying commodity; or (b) 28358 (May 17, 2011) (Proposed FDIC Retail Forex versus those that govern CFTC registrants, such as physical delivery of the underlying commodity. See Rule). capital rules. The NDIP Policy Statement, because Edward F. Greene et al., U.S. Regulation of 15 See OCC Bulletin 94–13 (Feb. 24, 1994); see it governs bank activities more generally, is similar International Securities and Derivatives Markets also OCC Bulletin 1995–52 (Sept. 22, 1995). to capital rules. § 14.08[2] (8th ed. 2006).

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would be the counterparty to both the obligation to deliver between a seller banking products from the definition of national bank and the retail forex and a buyer that have the ability to ‘‘retail forex transaction.’’ Identified customer, rather than the national bank deliver and accept delivery, banking products that have embedded directly facing the retail forex customer. respectively, in connection with their foreign exchange features, for example a The proposed rule sought comment line of business 28 or the OCC deposit account in which the customer on whether leveraged, margined, or determines that the forward is not may deposit funds in one currency and bank-financed forex transactions, functionally or economically similar to withdraw funds in another, are not including rolling spot forex transactions a forex future or option, as described retail forex transactions. 24 (so-called Zelener contracts), should below. This section defines several terms by be regulated as retail forex transactions; The final rule contains a provision reference to the CEA, the most the OCC preliminary believed that they that allows the OCC to exempt specific important of which is ‘‘eligible contract should.25 transactions or kinds of transaction from participant.’’ Foreign currency The commenter supported the the third prong of the ‘‘retail forex transactions with eligible contract inclusion of rolling spot forex transaction’’ definition. The OCC is participants are not considered retail transactions in the definition of ‘‘retail concerned that certain traditional forex transactions and are therefore not forex transaction.’’ A rolling spot forex banking products, which are subject to this rule. In addition to a transaction nominally requires delivery distinguishable from speculative rolling variety of financial entities, certain of currency within two days, like spot spot forex transactions, may governmental entities, businesses, and transactions. However, in practice, the inadvertently fall within the definition contracts are indefinitely renewed every individuals may be eligible contract of ‘‘retail forex transaction’’ as 32 other day and no currency is actually leveraged, margined, or bank-financed participants. delivered until one party affirmatively forex transactions. This result was not Section 48.3—Prohibited Transactions closes out the position.26 Therefore, the intended by the Dodd-Frank Act, which contracts are economically more like requires retail forex rules to treat This section prohibits a national bank futures than spot contracts, although similarly transactions that are and its institution-affiliated parties from courts have held them to be spot functionally or economically similar to engaging in fraudulent conduct in contracts in form.27 Like the CFTC’s forex futures or options.29 National connection with retail forex retail forex rule and the FDIC’s banks may seek a determination that a transactions. This section also prohibits proposed retail forex rule, the final given transaction or kind of transaction a national bank from acting as a rule’s definition of ‘‘retail forex does not fall within the third prong of counterparty to a retail forex transaction transaction’’ includes leveraged, the ‘‘retail forex transaction’’ definition if the national bank or its affiliate margined, or bank-financed rolling spot by submitting a written request to the exercises discretion over the customer’s forex transactions, as well as certain OCC. retail forex account because the OCC other leveraged, margined, or bank- The commenter asked for views such self-dealing as financed forex transactions. confirmation that deposit accounts with inappropriate. The commenter sought clarification foreign exchange features are outside The OCC received no comments to that forex forwards would not be the scope of the rule. this section and adopts it as proposed. included in the definition, because The Legal Certainty for Bank Products transactions that convert or exchange Act of 2000, as amended by the Dodd- 32 The term ‘‘eligible contract participant’’ is actual currencies for any commercial or Frank Act, generally exempts defined at 7 U.S.C. 1a(18), and for purposes most investment purpose are a traditional ‘‘identified banking products’’ from the relevant to this rule generally includes: product offered by national banks and CEA.30 Identified banking products (a) A corporation, partnership, proprietorship, do not raise the consumer protection include: Deposit accounts, savings organization, trust, or other entity— issues associated with futures or rolling accounts, certificates of deposit, or other (1) That has total assets exceeding $10,000,000; deposit instruments issued by a bank; (2) The obligations of which under an agreement, spot forex transactions. contract, or transaction are guaranteed or otherwise The OCC agrees that a forex forward banker’s acceptances; letters of credit supported by a letter of credit or keepwell, support, that is not leveraged, margined, or issued or loans made by a bank; debit or other agreement by certain other eligible contract financed by the national bank does not accounts at a bank arising from a credit participants; or meet the definition of ‘‘retail forex card or similar arrangement; and certain (3) That— transaction.’’ However, a leveraged, loan participations.31 Because identified (i) Has a net worth exceeding $1,000,000; and banking products are not subject to the (ii) Enters into an agreement, contract, or margined, or bank-financed forex transaction in connection with the conduct of the forward is a retail forex transaction CEA, they are not prohibited by section entity’s business or to manage the risk associated unless it creates an enforceable 2(c)(2)(E)(ii) of the CEA. To provide with an asset or liability owned or incurred or clarity, the final rule excludes identified reasonably likely to be owned or incurred by the entity in the conduct of the entity’s business; 24 CFTC v. Zelener, 373 F.3d 861 (7th Cir. 2004); (b) Subject to certain exclusions, see also CFTC v. Erskine, 512 F.3d 309 (6th Cir. 28 See 7 U.S.C. 2(c)(2)(C)(i)(II)(bb)(BB). (1) A governmental entity (including the United 2008). 29 7 U.S.C. 2(c)(2)(E)(iii)(II). States, a State, or a foreign government) or political 25 7 U.S.C. 2(c)(2)(E)(iii) (requiring that retail 30 7 U.S.C. 27a(a)(1). An identified banking subdivision of a governmental entity; forex rules treat all functionally or economically product offered by a national bank could become (2) A multinational or supranational similar transactions similarly); see 17 CFR 5.1(m) subject to the CEA if the OCC determines, in governmental entity; and (defining ‘‘retail forex transaction’’ for CFTC- consultation with the CFTC and the Securities and registered retail forex dealers). Exchange Commission, that the product would (3) An instrumentality, agency, or department of 26 For example, in Zelener, the retail forex dealer meet the definition of a ‘‘swap’’ under the CEA or an entity described in (b)(1) or (2); and retained the right, at the date of delivery of the a ‘‘security-based swap’’ under Securities Exchange (c) An individual who has amounts invested on currency to deliver the currency, roll the Act of 1934 and has become known to the trade as a discretionary basis, the aggregate of which is in transaction over, or offset all or a portion of the a swap or security-based swap, or otherwise has excess of— transaction with another open position held by the been structured as an identified banking product for (1) $10,000,000; or customer. See CFTC v. Zelener, 373 F.3d 861, 868 the purpose of evading the provisions of the CEA, (2) $5,000,000 and who enters into the agreement, (7th Cir. 2004). the Securities Act of 1933, or the Securities contract, or transaction in order to manage the risk 27 See, e.g., CFTC v. Erskine, 512 F.3d 309, 326 Exchange Act of 1934. 7 U.S.C. 27a(b). associated with an asset owned or liability incurred, (6th Cir. 2008); CFTC v. Zelener, 373 F.3d 861, 869 31 7 U.S.C. 27(b) (citing Gramm-Leach-Bliley Act or reasonably likely to be owned or incurred, by the (7th Cir. 2004). § 206(a)(1) to (5)). individual.

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Section 48.4—Supervisory Non- concern in the notice of proposed should disclose the percentage of Objection rulemaking. profitable retail forex accounts. This section requires a national bank The commenter stated that a customer The commenter said that disclosing to obtain a written supervisory non- should be permitted to provide the ratio of profitable to nonprofitable objection prior to engaging in a retail instructions with respect to the manner retail forex accounts is not useful forex business. To obtain such non- in which the customer’s retail forex because those ratios depend on many objection, the national bank will have to transaction are offset when: (i) The factors (including the trading expertise provide such information as the OCC customer maintains separate accounts of customers) and could suggest one deems necessary to determine that the managed by different advisors; (ii) the national bank is a more attractive retail national bank would satisfy the customer maintains separate accounts forex counterparty than another. requirements of the rule. This using different trading strategies; or (iii) In its retail forex rule, the CFTC information will include information the customer employs different trading requires its registrants to disclose to on: Customer due diligence (including strategies in one account and applies retail customers the percentage of retail credit evaluations, customer certain orders to risk-manage that forex accounts that earned a profit and appropriateness, and ‘‘know your exposure. The commenter also sought the percentage of such accounts that customer’’ documentation); new clarification that a customer could experienced a loss during each of the 36 product approvals; haircuts for noncash provide specific offset instructions in most recent four calendar quarters. margin; and conflicts of interest. In writing or orally, and that those The CFTC explained that the vast addition, the national bank must instructions can be made on a blanket majority of retail customers who enter establish that it has adequate written basis. these transactions do so solely for policies, procedures, and risk The OCC agrees that a customer speculative purposes and that relatively measurement and management systems should be able to offset retail forex few of these participants trade and controls. transactions in a particular manner, if profitably.37 In its final rule, the CFTC National banks engaged in retail forex he or she so chooses. Paragraph (c) has found this requirement appropriate to transactions as of the effective date of been modified to provide that, protect retail customers from inherent this rule that promptly request the notwithstanding the default offset rules conflicts embedded in the operations of OCC’s review of their retail forex in paragraphs (a) and (b), the national the retail over-the-counter forex business will have six months, or a bank must offset retail forex transactions industry.38 The OCC agrees with the longer period provided by the OCC, to pursuant to a customer’s specific CFTC and the final rule requires this bring their operations into conformance instructions. Blanket instructions are disclosure. with the rule. Under this rule, a national not sufficient for this purpose, as they The proposal requested comment on bank that requests the OCC’s review could obviate the default rule. However, whether the risk disclosure statement within 30 days of the effective date of offset instructions need not be given should include a disclosure that when the final retail forex rule and submits separately for each pair of orders in a retail customer loses money trading, such information as the OCC may order to be ‘‘specific.’’ Instructions that the dealer makes money. request within the timeframe the OCC apply to sufficiently defined sets of The commenter said that this provides will be deemed to be operating transactions could be specific enough. disclosure is inaccurate because the its retail forex business pursuant to a Finally, consistent with the changes to bank immediately hedges retail forex rule or regulation of a Federal regulatory § 48.12, retail forex customers may make transactions or nets them with similar agency, as required under the CEA, for offset instructions in writing or orally. transactions and therefore does not such period.33 The national bank must create and profit from exchange rate fluctuations. A national bank need not join a maintain a record of each offset The commenter argued it is more futures self-regulatory organization as a instruction.35 accurate to inform customers that the condition of conducting a retail forex bank may or does mark-up (or mark- business. Section 48.6—Disclosure down) transactions or apply The commenter supported the This section requires a national bank commission rates to transactions that adoption of this section, and the OCC to provide retail forex customers with a will create income for the bank. adopts it as proposed. risk disclosure statement similar to the The OCC understands that the economic model of a retail forex Section 48.5—Application and Closing one required by the CFTC’s retail forex rule but tailored to address certain business may be to profit from spreads, Out of Offsetting Long and Short fees, and commissions. Nonetheless, Positions unique characteristics of retail forex in national banks. The prescribed risk because a national bank engaging in This section requires a national bank disclosure statement would describe the retail forex transactions is trading as to close out offsetting long and short risks associated with retail forex principal, by definition, when the retail positions in a retail forex account. The transactions. forex customer loses money on a retail national bank would have to offset such The commenter agreed with the need forex transaction, the national bank positions regardless of whether the for a robust risk disclosure statement makes money on that transaction. The customer has instructed otherwise. The but suggested that a shorter, clearer, OCC therefore believes that this CFTC concluded that keeping open long more direct, and less redundant disclosure is accurate and helps and short positions in a retail forex statement would be more effective. The potential retail forex customers customer’s account removes the final rule incorporates several changes understand the nature of retail forex opportunity for the customer to profit to the disclosures to eliminate transactions. Similarly, the CFTC’s retail on the transactions, increases the fees redundancies, address ambiguities, and forex rule requires a disclosure that paid by the customer, and invites convey the information more clearly. when a retail customer loses money abuse.34 The OCC agreed with this The proposal requested comment on 36 17 CFR 5.5(e)(1). 33 7 U.S.C. 2(c)(2)(E)(ii)(I). whether the risk disclosure statement 37 Proposed CFTC Retail Forex Rule, 75 FR at 34 Proposed CFTC Retail Forex Rule, 75 FR at 3289. 3287 n.54. 35 See § 48.7(a)(6) and (g). 38 Final CFTC Retail Forex Rule, 75 FR at 55412.

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trading, the dealer makes money on revenue. To the extent practical, it must Section 48.7—Recordkeeping such trades, in addition to any fees, quantify the fees, charges, spreads, or This section specifies which 39 commissions, or spreads. The final commissions that the national bank may documents and records that a national rule includes this disclosure impose on the retail forex customer in bank engaged in retail forex transactions requirement. connection with the customer’s retail must retain for examination by the OCC. The proposal asked whether it would forex account or a retail forex This section also prescribes document be convenient to national banks and transaction.40 The OCC further believes maintenance standards. The OCC notes retail forex customers to allow the retail that disclosure of the bid/ask spread is that records may be kept electronically forex risk disclosure to be combined possible in a variety of ways. If a as permitted under the Electronic with other disclosures that national national bank bases its prices off of the Signatures in Global and National banks make to their customers. prices provided by a third party, then Commerce Act.41 The commenter asked the OCC to the national bank may disclose the use The OCC received no comments on confirm that national banks may add of the third party’s pricing and the this section. Recordkeeping topics to the risk disclosure statement. markup charged to retail forex requirements found in § 48.13(a)(3) of The OCC is concerned that the customers. Alternatively, the national the proposed rule were moved into this effectiveness of the disclosure could be bank may disclose the bid/ask spread by section to centralize recordkeeping diminished if surrounded by other quoting both the bid and ask prices to requirements in one section. topics. Therefore, the final rule requires retail forex customers prior to entering Furthermore, the recordkeeping the risk disclosure statement to be given into a retail forex transaction. These requirements have been modified to to potential retail forex customers as set quotes may be provided as part of an accommodate oral orders and offset forth in the rule. National banks may electronic trading platform or, after a instructions. A national bank must describe and provide additional retail forex customer calls the national create an audio recording of oral orders information on retail forex transactions bank for a retail forex transaction, by and offset instructions. in a separate document. providing both a bid and ask price for The commenter further asked the OCC the transaction. Section 48.8—Capital Requirements to confirm that the risk disclosure The commenter read the disclosure to This section requires that a national statement may be appended to account suggest that the national bank cannot bank that offers or enters into retail opening agreements or forms and that a seek to recover losses not covered by a forex transactions must be ‘‘well single signature by the customer on a customer’s margin account via an capitalized’’ as defined in the OCC’s combined account agreement and appropriate dispute resolution forum prompt corrective action regulation.42 In disclosure form can be used as long as and asked the OCC to confirm that this addition, a national bank must continue the customer is directed to and was not the case. to hold capital against retail forex acknowledges the risk disclosure Section 48.9(d)(4) requires a national transactions as provided in the OCC’s statement immediately prior to the bank, in the event that a retail forex capital regulation.43 This rule does not signature line. customer’s margin falls below the amend the OCC’s prompt corrective The OCC believes that a separate risk amount needed to satisfy the margin action regulation or capital regulation. disclosure document appropriately requirement to either: (1) Collect The proposed rule contained a highlights the risks in retail forex sufficient margin from the retail forex provision allowing the OCC to exempt transactions and that requiring a customer; or (2) liquidate the retail forex a national bank from the well- separate signature for the separate risk customer’s retail forex transactions. The capitalized requirement. This provision disclosure appropriately calls a final rule does not forbid a national has been removed in light of the general potential retail forex customer’s bank from seeking to recover a reservation of authority in § 48.17. attention to the risk disclosure deficiency from a retail forex customer Section 48.9—Margin Requirements statement. However, a national bank in an appropriate venue. The disclosure may attach the risk disclosure to a has been revised to make this fact clear. Paragraph (a) requires a national bank related document, such as the account Finally, the commenter said that the that engages in retail forex transactions, agreement. disclosure regarding the availability of in advance of any such transaction, to The proposal requested comment on FDIC-insurance for retail forex collect from the retail forex customer whether the risk disclosure statement transactions should be clarified. margin equal to at least 2 percent of the should include a disclosure of fees that The disclosure requires a national notional value of the retail forex the national bank charges to retail forex bank to state that retail forex transaction if the transaction is in a customers. transactions are not FDIC-insured. The major currency pair and at least 5 The commenter agreed that the commenter agreed with that statement. percent of the notional value of the disclosure of fees is appropriate, but It noted, however, that margin funds retail forex transaction otherwise. These should not include income from may be insured deposits. The FDIC- margin requirements are identical to the hedging retail forex customers’ positions insured status of funds held in a retail requirements imposed by the CFTC’s or income streams not charged to the forex margin account will depend on retail forex rule. customer. Moreover, the commenter whether such funds are held in a The proposal requested comments on stated that it is impractical to manner that meets the requirements of whether it should define the major numerically state the bid/ask spread the Federal Deposit Insurance Act and currencies in the final rule but did not given that it may vary. its implementing regulations. National receive any. The final rule adopts the The final rule, like the proposed rule, banks may accurately disclose the proposal’s approach to identifying the does not require national banks to availability of FDIC insurance for retail major currencies. disclose income streams not charged to forex margin accounts in a separate A major currency pair is a currency the retail forex customer. However, a document as permitted by law. pair with two major currencies. The national bank must do more than simply describe the means by which it earns 40 The final rule clarifies that a national bank 41 15 U.S.C. 7001(d). must disclose spreads in addition to fees, 42 12 CFR part 6. 39 17 CFR 5.5(b). commissions, and charges. 43 12 CFR part 3.

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major currencies currently are the U.S. margin required by this paragraph comments on this paragraph and adopts Dollar (USD), Canadian Dollar (CAD), should be initial margin rather than this paragraph as proposed. Euro (EUR), United Kingdom Pound maintenance margin. The commenter Paragraph (c) requires a national bank (GBP), Japanese Yen (JPY), Swiss Franc also suggested that national banks be to hold each retail forex customer’s (CHF), New Zealand Dollar (NZD), allowed to set maintenance margin retail forex transaction margin in a Australian Dollar (AUD), Swedish levels as a matter of the banks’ credit separate account. This paragraph is Kronor (SEK), Danish Kroner (DKK), and risk policies in a manner that designed to work with the prohibition and Norwegian Krone (NOK).44 An balances (i) protecting customers from a on set-off in paragraph (e), so that a evolving market could change the major forced close-put of their positions as national bank may not have an account currencies, so the OCC is not proposing soon as an adverse market move erodes agreement that treats all of a retail forex to define the term ‘‘major currency,’’ but margin under the 2 or 5 percent customer’s assets held by a bank as rather expects that national banks will minimum level with (ii) the need to margin for retail forex transactions. obtain an interpretive letter from the promptly collect margin and close out The commenter requested OCC prior to treating any currency other positions when a customer fails to meet clarification that this paragraph allows than those listed above as a ‘‘major a margin call. The commenter also national banks to place margin into an currency.’’ 45 suggested that customers should have omnibus or commingled account for For retail forex transactions, margin some reasonable time to meet margin operational convenience, provided that protects the retail forex customer from calls before they are deemed to have the bank keeps records of each the risks related to trading with defaulted and face a forced liquidation customer’s margin balance. excessive leverage. The volatility of the of their positions. A national bank may place margin collected from retail forex customers foreign currency markets exposes retail Subject to reasonable collection times into an omnibus or commingled account forex customers to substantial risk of as described below, a national bank if the bank keeps records of each retail loss. High leverage ratios can must ensure that there is always significantly increase a customer’s forex customer’s margin balance. A sufficient margin in a retail forex ‘‘separate account’’ is one separate from losses and gains. Even a small move customer’s margin account for the against a customer’s position can result the retail forex customer’s other customer’s open retail forex accounts at the bank. For example, in a substantial loss. Even with required transactions. If the amount of margin in margin, losses can exceed the margin margin for retail forex transactions a retail forex customer’s margin account cannot be held in a retail forex posted and, if the account is not closed is insufficient to meet the requirements out, and, depending on the specific customer’s savings account. Funds in a of paragraph (a), then § 48.9(d)(4) savings account pledged as retail forex circumstances, the customer could be requires the national bank to make a margin must be transferred to a separate liable for additional losses. Given the margin call to replenish the margin margin account, which could be an risks that are inherent in the trading of account to an acceptable level and, if individual or an omnibus margin retail forex transactions by retail the customer does not comply with the account. The final rule contains slightly customers, the only funds that should margin call, to liquidate the retail forex modified language to clarify this intent. be invested in such transactions are customer’s retail forex transactions. The FDIC-insured status of funds held those that the customer can afford to Retail forex customers should have a in an omnibus account will depend on lose. reasonable amount of time to post whether such funds are held in a Prior to the CFTC’s rule, nonbank required margin for retail forex dealers routinely permitted customers to manner that meets the requirements of transactions. Market practice is for retail the Federal Deposit Insurance Act and trade with 1 percent margin (leverage of forex counterparties to make margin 100:1) and sometimes with as little as its implementing regulations. calls at the close of trading on a trading Paragraph (d) requires a national bank 0.25 percent margin (leverage of 400:1). day based on margin levels at the end to collect additional margin from the When the CFTC proposed its retail forex of that day or at the open of trading on customer or to liquidate the customer’s rule in January 2010, it proposed a the next trading day based on margin position if the amount of margin held by margin requirement of 10 percent levels at the end of that prior day. If the the national bank fails to meet the (leverage of 10:1). In response to retail forex customer does not post requirements of paragraph (a). The comments, the CFTC reduced the sufficient margin by the end of the next proposed rule would have required the required margin in the final rule to 2 close of trading, then the retail forex national bank to mark the customer’s percent (leverage of 50:1) for trades counterparty liquidates the customer’s open retail forex positions and the value involving major currencies and 5 retail forex account. In other words, by of the customer’s margin to the market percent (leverage of 20:1) for trades the close of business on a given trading daily to ensure that a retail forex involving non-major currencies. day, the margin account must be customer does not accumulate The proposal requested comment on sufficient to meet the margin substantial losses not covered by whether these margin requirements requirements as at the end of the prior margin. were appropriate to protect retail forex trading day. The proposal requested comment on customers. Paragraph (b) specifies the acceptable how frequently retail forex customers’ The commenter did not object to the forms of margin that customers may margin accounts should be marked to amount of margin required. However, post. National banks must establish market. the commenter suggested that the policies and procedures providing for The commenter asked that the final haircuts for noncash margin collected rules permit marking to market more 44 See National Futures Association, Forex Transactions: A Regulatory Guide 17 (Feb. 2011); from customers and must review these frequently than daily if the national Federal Reserve Bank of New York, Survey of North haircuts annually. It may be prudent for bank’s systems and customer American Foreign Exchange Volume tbl. 3e (Jan. national banks to review and modify the agreements permit. The final rule, like 2011); Bank for International Settlements, Report on size of the haircuts more frequently. The the proposed rule, requires marking to Global Foreign Exchange Market Activity in 2010 at 15 tbl. B.6 (Dec. 2010). OCC requested comment on whether the market at least once per day. Nothing in 45 The Final CFTC Retail Forex Rule similarly final rule should specify haircuts for paragraph (d) forbids a more frequent does not define ‘‘major currency.’’ noncash margin. The OCC received no schedule.

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Paragraph (e) prohibits a national Section 48.10—Required Reporting to customer before effecting a retail forex bank from applying a retail forex Customers transaction. The commenter said that requiring customer’s retail forex obligations This section requires a national bank specific written authorization from a against any asset or liability of the retail engaging in retail forex transactions to retail forex customer before effecting a forex customer other than money or provide each retail forex customer a 46 retail forex transaction for that customer property pledged as margin. A monthly statement and confirmation would be burdensome and detrimental national bank’s relationship with a retail statements. to the customer’s interests, if, for forex customer may evolve out of a prior The proposal sought comment on example, the customer cannot convey relationship of providing financial whether this section provides for services or may evolve into such a written instructions because of technical statements that would be useful and difficulties. relationship. Thus, it is more likely that meaningful to retail forex customers or The OCC agrees with this concern and a national bank acting as a retail forex whether other information would be further notes that the CFTC’s retail forex counterparty will hold other assets or more appropriate. rule does not require written liabilities of a retail forex customer, for The commenter sought clarification authorization for each retail forex example a deposit account or mortgage, that the statements may be provided transaction. The final rule requires a than a retail forex dealer regulated by electronically, and also suggested that national bank to obtain a retail forex the CFTC. The OCC believes that it is retail forex customers would be better customer’s specific authorization inappropriate to allow a national bank served with continuous online access to (written or oral) to effect a particular to leave trades open and allow account information rather than trade. National banks must keep records additional obligations to accrue that can monthly statements. of authorizations to trade pursuant to be applied against a retail forex The OCC encourages national banks this rule. customer’s other assets or liabilities to provide real-time, continuous access held by the national bank. However, to account information. This rule does Section 48.13—Trading and should a retail forex customer’s retail not prevent national banks from doing Operational Standards forex obligations exceed the amount of so. However, the OCC believes it is This section largely follows the margin he or she has pledged, this rule valuable to require national banks to trading standards of the CFTC’s retail does not forbid a national bank from provide retail forex account information forex rule, which were developed to seeking to recover the deficiency in an to retail forex customers at least once prevent some of the deceptive or unfair appropriate forum, such as a court of per month. Monthly statements may be practices identified by the CFTC and the law. Paragraph (e) does not apply to provided electronically as permitted National Futures Association. debts a retail forex customer owes to a under the Electronic Signatures in Under paragraph (a), a national bank 47 national bank as recognized in a Global and National Commerce Act. engaging in retail forex transactions is required to establish and enforce judgment of a court of competent Section 48.11—Unlawful internal rules, procedures, and controls jurisdiction. Representations (1) to prevent front running, a practice The commenter suggested that retail This section prohibits a national bank in which transactions in accounts of the forex customers should be able to and its institution-affiliated parties from national bank or its related persons are pledge assets other than those held in representing that the Federal executed before a similar customer the customer’s margin account. For government, the OCC, or any other order; and (2) to establish settlement example, a customer could nominate a Federal agency has sponsored, prices fairly and objectively. deposit account as containing margin recommended, or approved retail forex The commenter requested for its retail forex transactions. transactions or products in any way. clarification that the prohibition on Nothing in this rule prevents retail This section also prohibits a national front running applies only when the forex customers from pledging other bank from implying or representing that person entering orders for the bank’s assets they have at the bank as margin it will guarantee against or limit retail account or the account of related for retail forex transactions. However, forex customer losses or not collect persons has knowledge of unexecuted once those assets are pledged as margin, margin as required by § 48.9. This retail customer orders, and that a the national bank must transfer them to section does not prohibit a national national bank may comply with this the separate margin account. For bank from sharing in a loss resulting provision by erecting a firewall between example, if a retail forex customer from error or mishandling of an order. the retail forex order book and other pledges $500 in her checking account as Guaranties entered into prior to forex trading desks. margin, then the bank must deduct $500 effectiveness of the prohibition would The final rule requires national banks from the checking account and place only be affected if an attempt is made to establish reasonable policies, procedures, and controls to address $500 in the margin account. The OCC to extend, modify, or renew them. This front running. This provision is believes this transfer appropriately section also does not prohibit a national bank from hedging or otherwise designed to prevent the national banks alerts retail forex customers to the mitigating its own exposure to retail from unfairly taking advantage of nature of the pledge. A national bank forex transactions or any other foreign information they gain from customer may not evade this requirement by exchange risk. trades. Effective firewalls and merely taking a security interest in The OCC received no comments to information barriers are reasonable assets pledged as margin: pledged assets this section and adopts it as proposed. policies, procedures, and controls to must be placed in a separate margin ensure that a national bank does not Section 48.12—Authorization to Trade account. take unfair advantage of its retail forex The proposed rule required national customers. The final rule clarifies 46 The final rule clarifies that the prohibition on banks to have specific written paragraph (a) accordingly. setting off retail forex ‘‘losses’’ in the proposed rule was meant to include costs related to retail forex authorization from a retail forex Paragraph (b) prohibits a national transactions, such as fees, spreads, charges, and bank engaging in retail forex commissions. 47 15 U.S.C. 7001(c). transactions from disclosing that it

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holds another person’s order unless provided without providing a new ask forex account. Generally, a national disclosure is necessary for execution or price that is similarly higher (or lower) bank must provide retail forex is made at the OCC’s request. The OCC as well, and (4) establishing a new customers 30 days’ prior notice before received no comments on this paragraph position for a retail forex customer transferring or assigning their account. and adopts this paragraph as proposed. (except to offset an existing position) if Affected customers may then instruct Paragraph (c) ensures that related the national bank holds one or more the national bank to transfer the account persons of another retail forex outstanding orders of other retail forex to an institution of their choosing or counterparty do not open accounts with customers for the same currency pair at liquidate the account. There are three a national bank without the knowledge a comparable price. exceptions to the above notice and authorization of the account Paragraph (e)(3) does not prevent a requirement: a transfer in connection surveillance personnel of the other retail national bank from changing the bid or with the receivership or conservatorship forex counterparty with which they are ask prices of a retail forex transaction to under the Federal Deposit Insurance affiliated. Similarly, paragraph (d) respond to market events. The OCC Act; a transfer pursuant to a retail forex ensures that related persons of a understands that market practice among customer’s specific request; and a national bank do not open accounts CFTC-registrants is not to offer requotes transfer otherwise allowed by applicable with other retail forex counterparties but to simply reject orders and advise law. A national bank that is the without the knowledge and customers they may submit a new order transferee of retail forex accounts must authorization of the account (which the dealer may or may not generally provide the transferred surveillance personnel of the national accept). Similarly, a national bank may customers with the risk disclosure bank with which they are affiliated. reject an order and advise customers statement of § 48.6 and obtain each The commenter requested that they may submit a new order. affected customer’s written confirmation that national banks may The proposal sought comment on acknowledgement within 60 days. rely on a representation of potential whether paragraph (e)(3) appropriately The OCC received no comments to customers that they are not affiliated protected retail forex customers or this section and adopts it as proposed. with a retail forex counterparty. whether a prohibition on re-quoting Paragraph (c) prohibits a national bank would be simpler. Section 48.16—Customer Dispute from knowingly handling the retail forex The commenter argued that the Resolution account of a related person of a retail prohibition on re-quoting in paragraph This section imposes limitations on forex counterparty. To the extent (e)(3) is overly broad and should permit how a national bank may handle reasonable, national banks may rely on new bids or offers to reflect updated disputes arising out of a retail forex representations of potential retail forex spreads. In the alternative, the transaction. For example, this section customers. If, however, a national bank commenter suggested prohibiting re- would restrict a national bank’s ability has actual knowledge that a retail forex quoting and requiring that, in the event to require mandatory arbitration for customer is a related person of a retail an order is not confirmed, the customer such disputes. forex counterparty, then no must submit a new order at the then- The OCC received no comments to representation by the customer will currently displayed price. As stated this section and adopts is as proposed. allow the bank to handle that retail above, rather than allowing requotes, a forex account. A national bank should national bank may reject orders and Section 48.17—Reservation of Authority inquire as to whether a potential retail request that customers submit a new This section allows the OCC to forex customer is related to a retail forex order. Paragraph (e)(3) is consistent with modify certain requirements of this rule counterparty to avoid violating the CFTC’s retail forex rule and the OCC consistent with safety and soundness paragraph (c) through willful ignorance. adopts it as proposed. and the protection of retail forex The commenter also requested Paragraph (e)(4) requires a national customers. The OCC understands the clarification that these paragraphs apply bank engaging in retail forex need for flexibility as foreign exchange only to employees of firms that offer transactions to execute similar orders in products or foreign exchange trading retail forex transactions, and, in the case the order they are received. The procedures develop and to ensure that of banks, only employees of the retail prohibition prevents a national bank such products or trading procedures are forex business and not any employee of from offering preferred execution to subject to appropriate customer the bank that offers retail forex some of its retail forex customers but protection and safety and soundness transactions. The OCC agrees that the not others. standards. prohibitions in paragraph (c) and (d) should only apply to employees Section 48.14—Supervision V. Regulatory Analysis working in the retail forex business; This section imposes on a national A. Regulatory Flexibility Act paragraphs (c) and (d) are designed to bank and its agents, officers, and prevent evasion of the prohibition employees a duty to supervise The Regulatory Flexibility Act (RFA), against front running. The final rule subordinates with responsibility for 5 U.S.C. 601 et seq., generally requires clarifies this point. retail forex transactions to ensure an agency that is issuing a proposed rule Paragraph (e) prohibits a national compliance with the OCC’s retail forex to prepare and make available for public bank engaging in retail forex rule. comment an initial regulatory flexibility transactions from (1) entering a retail The proposal requested comment on analysis that describes the impact of the forex transaction to be executed at a whether this section imposed proposed rule on small entities. The price that is not at or near prices at requirements not already encompassed RFA provides that an agency is not which other retail forex customers have by safety and soundness standards. required to prepare and publish an executed materially similar transactions Having received no comments to this initial regulatory flexibility analysis if with the national bank during the same section, the OCC adopts it as proposed. the agency certifies that the proposed time period, (2) changing prices after rule will not, if promulgated as a final confirmation, (3) providing a retail forex Section 48.15—Notice of Transfers rule, have a significant economic impact customer with a new bid price that is This section describes the on a substantial number of small higher (or lower) than previously requirements for transferring a retail entities. Under regulations issued by the

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Small Business Administration, a small information collection unless it displays forex business, a national bank provide entity includes a commercial bank with a currently valid OMB control number. the OCC with prior notice and obtain a assets of $175 million or less.48 This The information collection requirements written supervisory non-objection letter. rule as proposed would impose are found in §§ 48.4–48.7, 48.9–48.10, In order to obtain a supervisory non- recordkeeping and disclosure 48.13, and 48.15–48.16. objection letter, a national bank must requirements on banks, including small Comments continue to be invited on: have written policies and procedures banks, which engage in retail forex (a) Whether the collection of and risk measurement and management transactions with their customers. information is necessary for the proper systems and controls in place to ensure Pursuant to section 605(b) of the RFA, performance of the OCC’s functions, that retail forex transactions are the OCC certified that this rule, as including whether the information has conducted in a safe and sound manner. proposed, would not have a significant practical utility; The national bank must also provide economic impact on a substantial (b) The accuracy of the estimate of the other information required by the OCC, number of the small entities it burden of the information collection, such as documentation of customer due supervises. Accordingly, a regulatory including the validity of the diligence, new product approvals, and flexibility analysis was not required. In methodology and assumptions used; haircuts applied to noncash margins. A making this determination, the OCC (c) Ways to enhance the quality, national bank already engaging in a estimated that there were no small utility, and clarity of the information to retail forex business may continue to do banking organizations currently be collected; so, provided it requests an extension of engaging in retail forex transactions (d) Ways to minimize the burden of time. with their customers. Therefore, the information collection on respondents, Disclosure Requirements OCC estimates that no small banking including through the use of automated organizations under its supervision collection techniques or other forms of Section 48.5, regarding the would be affected by this final rule. information technology; and application and closing out of offsetting (e) Estimates of capital or startup costs long and short positions, requires a B. Paperwork Reduction Act and costs of operation, maintenance, national bank to promptly provide the In conjunction with the Notice of and purchase of services to provide customer with a statement reflecting the Proposed Rulemaking (NPRM),49 the information. financial result of the transactions and OCC submitted the information All comments will become a matter of the name of the introducing broker to collection requirements contained public record. Comments should be the account. The customer provides therein to OMB for review under the addressed to: Communications Division, specific written instructions on how the Paperwork Reduction Act (PRA). In Office of the Comptroller of the offsetting transaction should be applied. response, the Office of Management and Currency, Public Information Room, Section 48.6 requires that a national Budget (OMB) filed comments with the Mailstop 2–3, Attention: 1557–0250, 250 bank furnish a retail forex customer OCC in accordance with 5 CFR E Street, SW., Washington, DC 20219. In with a written disclosure before opening 1320.11(c). The comments indicated addition, comments may be sent by fax an account that will engage in retail that OMB was withholding approval at to 202–874–5274, or by electronic mail forex transactions for a retail forex that time. The Agencies were directed to to [email protected]. You customer and receive an examine public comment in response to may personally inspect and photocopy acknowledgment from the customer that the NPRM and include in the comments at the OCC, 250 E Street, it was received and understood. It also supporting statement of the information SW., Washington, DC 20219. For requires the disclosure by a national collection request (ICR) to be filed at the security reasons, the OCC requires that bank of its fees and other charges and final rule stage a description of how the visitors make an appointment to inspect its profitable accounts ratio. agency has responded to any public comments. You may do so by calling Section 48.10 requires a national bank comments on the ICR, including 202–874–4700. Upon arrival, visitors to issue monthly statements to each comments maximizing the practical will be required to present valid retail forex customer and to send utility of the collection and minimizing government-issued photo identification confirmation statements following the burden. The OCC received one and submit to security screening in transactions. Section 48.13(b) allows disclosure by comment addressing the substance and/ order to inspect and photocopy a national bank that an order of another or method of the disclosure and comments. reporting requirements contained in the Additionally, you should send a copy person is being held by them only when proposed rule. This comment and the of your comments to the OMB Desk necessary to the effective execution of OCC’s response to the comment is Officer, by mail to U.S. Office of the order or when the disclosure is included in the preamble discussion Management and Budget, 725 17th requested by the OCC. Section 48.13(c) and in a revised Supporting Statement Street, NW., 10235, Washington, DC prohibits a national bank engaging in submitted to OMB. 20503, or by fax to 202–395–6974. retail forex transactions from knowingly The information collection handling the account of any related requirements contained in this final rule Proposed Information Collection person of another retail forex have been submitted by the OCC to Title of Information Collection: Retail counterparty unless it receives proper OMB for review and approval under 44 Foreign Exchange Transactions. written authorization, promptly U.S.C. 3506 and 5 CFR part 1320. In Frequency of Response: On occasion. prepares a written record of the order, accordance with section 3512 of the Affected Public: Businesses or other and transmits to the counterparty copies PRA, 44 U.S.C. 3512, the OCC may not for-profit. all statements and written records. conduct or sponsor, and a respondent is Respondents: National banks and Section 48.13(d) prohibits a related not required to respond to, an Federal branches and agencies of foreign person of a national bank engaging in banks. forex transactions from having an 48 Small Business Administration regulations account with another retail forex define ‘‘small entities’’ to include banks with a four- Reporting Requirements quarter average of total assets of $175 million or counterparty unless the counterparty less. 13 CFR 121.201. The reporting requirements in § 48.4 receives proper written authorization 49 76 FR 22633 (April 22, 2011). require that, prior to initiating a retail and transmits copies of all statements

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and written records for the related 1532, requires that an agency prepare a effective at an earlier date. The OCC person’s retail forex accounts to the budgetary impact statement before finds good cause that this final rule national bank. promulgating any rule likely to result in should become effective on July 15, Section 48.15 requires a national bank a Federal mandate that may result in the 2011, as it would be in the public to provide a retail forex customer with expenditure by State, local, and tribal interest to require the disclosure and 30 days’ prior notice of any assignment governments, in the aggregate, or by the consumer protection provisions in this of any position or transfer of any private sector, of $100 million or more rule to take effect at this earlier date. If account of the retail forex customer. It in any one year. If a budgetary impact the rule did not become effective until also requires a national bank to which statement is required, section 205 of the October 1, 2011, then national banks retail forex accounts or positions are Unfunded Mandates Act also requires would not be able to provide retail forex assigned or transferred to provide the an agency to identify and consider a transactions to customers to meet their affected customers with risk disclosure reasonable number of regulatory financial needs. statements and forms of alternatives before promulgating a rule. acknowledgment and receive the signed The OCC has determined that this rule List of Subjects in 12 CFR Part 48 acknowledgments within 60 days. will not result in expenditures by State, Banks, Consumer protection, The customer dispute resolution local, and tribal governments, or by the Definitions, Federal branches and provisions in § 48.16 requires certain private sector, of $100 million or more agencies, Foreign currencies, Foreign endorsements, acknowledgments, and in any one year.50 Accordingly, this exchange, National banks, Reporting signature language. Section 48.16 also final rule is not subject to section 202 and recordkeeping requirements. requires that within 10 days after receipt of the Unfunded Mandates Act. For the reasons stated in the of notice from the retail forex customer D. Effective Date Under the preamble, part 48 to Title 12, Chapter I that the customer intends to submit a Administrative Procedures Act of the Code of Federal Regulations is claim to arbitration, the national bank added to read as follows: provides to the customer a list of This final rule takes effect on July 15, persons qualified in the dispute 2011. 5 U.S.C. 553(d)(1) requires PART 48—RETAIL FOREIGN resolution, and that the customer must publication of a substantive rule not less EXCHANGE TRANSACTIONS notify the national bank of the person than 30 days before its effective date, except in cases in which the rule grants Sec. selected within 45 days of receipt of 48.1 Authority, purpose, and scope. such list. or recognizes an exemption or relieves a restriction. Section 2(c)(2)(E)(ii) of the 48.2 Definitions. Policies and Procedures; Recordkeeping CEA would prohibit national banks 48.3 Prohibited transactions. 48.4 Supervisory non-objection. Sections 48.7 and 48.13(a) require that from engaging in retail forex 48.5 Application and closing out of a national bank engaging in retail forex transactions unless this final rule offsetting long and short positions. transactions keep full, complete, and becomes effective on July 16, 2011. This 48.6 Disclosure. systematic records and establish and final rule would relieve that restriction 48.7 Recordkeeping. implement internal rules, procedures, and allow national banks to continue to 48.8 Capital requirements. and controls. Section 48.7 also requires engage in retail forex transactions 48.9 Margin requirements. that a national bank keep account, without delay. Furthermore, under 5 48.10 Required reporting to customers. 48.11 Unlawful representations. financial ledger, transaction and daily U.S.C. 553(d)(3), an agency may find good cause to publish a rule less than 48.12 Authorization to trade. records; price logs; records of methods 48.13 Trading and operational standards. used to determine bids or asked prices; 30 days before its effective date. The 48.14 Supervision. memorandum orders; post-execution OCC finds such good cause, as the 30- 48.15 Notice of transfers. allocation of bunched orders; records day delayed effective date is 48.16 Customer dispute resolution. regarding its ratio of profitable accounts unnecessary under the provisions of the 48.17 Reservation of authority. and possible violations of law; records final rule. In § 48.4(c) of the final rule, Authority: 7 U.S.C. 27 et seq.; 12 U.S.C. for noncash margin; order tickets; and the OCC allows national banks a 30-day 1 et seq., 24, 93a, 161, 1813(q), 1818, 1831o, monthly statements and confirmations. grace period to inform the OCC of its 3102, 3106a, 3108. Section 48.9 requires policies and retail forex activity, along with up to a § 48.1 Authority, purpose, and scope. procedures for haircuts for noncash six-month window to comply with the margin collected under the rule’s provisions of the retail forex rule. (a) Authority. A national bank may engage in retail foreign exchange margin requirements and annual E. Effective Date Under the CDRI Act evaluations and modifications of the transactions. A national bank engaging The Riegle Community Development haircuts. in such transactions must comply with and Regulatory Improvement Act of the requirements of this part. Estimated PRA Burden 1994 (CDRI Act), 12 U.S.C. 4801 et seq., (b) Purpose. This part establishes Estimated Number of Respondents: 42 provides that new regulations that rules applicable to retail foreign national banks; 3 service providers. impose additional reporting or exchange transactions engaged in by Total Reporting Burden: 672 hours. disclosure requirements on insured national banks and applies on or after Total Disclosure Burden: 54,166 depository institutions do not take effect the effective date. hours. until the first day of a calendar quarter (c) Scope. Except as provided in Total Recordkeeping Burden: 12,416 after the regulation is published, unless paragraph (d) of this section, this part hours. the agency determines there is good applies to national banks. Total Annual Burden: 67,254 hours. cause for the regulation to become (d) International applicability. Sections 48.3 and 48.5 to 48.16 do not C. Unfunded Mandates Reform Act of 50 In particular, the OCC notes that forex apply to retail foreign exchange 1995 transactions between national banks and transactions between a foreign branch of governmental entities are not retail forex Section 202 of the Unfunded transactions subject to this rule, because a national bank and a non-U.S. Mandates Reform Act of 1995 governmental entities are eligible contract customer. With respect to those (Unfunded Mandates Act), 2 U.S.C. participants. See 7 U.S.C. 1a(18)(A)(vii). transactions, the foreign branch remains

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subject to any disclosure, customer that is, or that offers to be, the (iv) The signing or co-signing of recordkeeping, capital, margin, counterparty to a retail forex checks or drafts on behalf of the reporting, business conduct, transaction, except for a person national bank; documentation, and other requirements described in item (aa), (bb), (cc)(AA), (4) A spouse or minor dependent of foreign law applicable to the branch. (dd), or (ff) of section 2(c)(2)(B)(i)(II) of living in the same household as any of the Commodity Exchange Act (7 U.S.C. the foregoing persons; or § 48.2 Definitions. 2(c)(2)(B)(i)(II)). (5) An affiliate of the national bank. In addition to the definitions in this Retail forex account means the Retail forex transaction means an section, for purposes of this part, the account of a retail forex customer, agreement, contract, or transaction in following terms have the same meaning established with a national bank, in foreign currency, other than an as in the Commodity Exchange Act: which retail forex transactions with the identified banking product or a part of ‘‘Affiliated person of a futures national bank as counterparty are an identified banking product, that is commission merchant’’; ‘‘associated undertaken, or the account of a retail offered or entered into by a national person’’; ‘‘contract of sale’’; forex customer that is established in bank with a person that is not an ‘‘commodity’’; ‘‘eligible contract order to enter into such transactions. eligible contract participant and that is: participant’’; ‘‘futures commission Retail forex account agreement means (1) A contract of sale of a commodity merchant’’; ‘‘future delivery’’; ‘‘option’’; the contractual agreement between a for future delivery or an option on such ‘‘security’’; and ‘‘security futures national bank and a retail forex a contract; product’’. customer that contains the terms (2) An option, other than an option Affiliate has the same meaning as in governing the customer’s retail forex executed or traded on a national section 2(k) of the Bank Holding account with the national bank. securities exchange registered pursuant Company Act of 1956 (12 U.S.C. Retail forex business means engaging to section 6(a) of the Securities 1841(k)). in one or more retail forex transactions Exchange Act of 1934 (15 U.S.C. Commodity Exchange Act means the with the intent to derive income from 78(f)(a)); or Commodity Exchange Act (7 U.S.C. 1 et those transactions, either directly or (3) Offered or entered into on a seq.). indirectly. leveraged or margined basis, or financed Forex means foreign exchange. Retail forex counterparty includes, as by a national bank, its affiliate, or any Identified banking product has the appropriate: same meaning as in section 401(b) of the person acting in concert with the (1) A national bank; national bank or its affiliate on a similar Legal Certainty for Bank Products Act of (2) A retail foreign exchange dealer; basis, other than: 2000 (7 U.S.C. 27(b)). (3) A futures commission merchant; Institution-affiliated party or IAP has and (i) A security that is not a security the same meaning as in section 3(u)(1), (4) An affiliated person of a futures futures product as defined in section (2), or (3) of the Federal Deposit commission merchant. 1a(47) of the Commodity Exchange Act Insurance Act (12 U.S.C. 1813(u)(1), (2), Retail forex customer means a (7 U.S.C. 1a(47)); or or (3)). customer that is not an eligible contract (ii) A contract of sale that: Introducing broker means any person participant, acting on his, her, or its (A) Results in actual delivery within that solicits or accepts orders from a own behalf and engaging in retail forex two days; or retail forex customer in connection with transactions. (B) Creates an enforceable obligation retail forex transactions. Retail forex obligation means an to deliver between a seller and buyer National bank means: obligation of a retail forex customer that have the ability to deliver and (1) A national bank; with respect to a retail forex transaction, accept delivery, respectively, in (2) A Federal branch or agency of a including trading losses, fees, spreads, connection with their line of business; foreign bank, each as defined in 12 charges, and commissions. or U.S.C. 3101; and Retail forex proprietary account (iii) An agreement, contract, or (3) An operating subsidiary of a means: A retail forex account carried on transaction that the OCC determines is national bank or an operating subsidiary the books of a national bank for one of not functionally or economically similar of a Federal branch or agency of a the following persons; a retail forex to: foreign bank. account of which 10 percent or more is (A) A contract of sale of a commodity Related person, when used in owned by one of the following persons; for future delivery or an option on such reference to a retail forex counterparty, or a retail forex account of which an a contract; or means: aggregate of 10 percent or more of which (B) An option, other than an option (1) Any general partner, officer, is owned by more than one of the executed or traded on a national director, or owner of 10 percent or more following persons: securities exchange registered pursuant of the capital stock of the retail forex (1) The national bank; to section 6(a) of the Securities counterparty; (2) An officer, director, or owner of 10 Exchange Act of 1934 (15 U.S.C. (2) An associated person or employee percent or more of the capital stock of 78(f)(a)). of the retail forex counterparty, if the the national bank; or retail forex counterparty is not a (3) An employee of the national bank, § 48.3 Prohibited transactions. national bank; whose duties include: (a) Fraudulent conduct prohibited. No (3) An IAP of the retail forex (i) The management of the national national bank or its IAPs may, directly counterparty, if the retail forex bank’s business; or indirectly, in or in connection with counterparty is a national bank; and (ii) The handling of the national any retail forex transaction: (4) A relative or spouse of any of the bank’s retail forex transactions; (1) Cheat or defraud or attempt to foregoing persons, or a relative of such (iii) The keeping of records, including cheat or defraud any person; spouse, who shares the same home as without limitation the software used to (2) Willfully make or cause to be any of the foregoing persons. make or maintain those records, made to any person any false report or Retail foreign exchange dealer means pertaining to the national bank’s retail statement or cause to be entered for any any person other than a retail forex forex transactions; or person any false record; or

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(3) Willfully deceive or attempt to (c) of this section, to be acting pursuant These instructions may not be made by deceive any person by any means to a rule or regulation described in the national bank or an IAP of the whatsoever. section 2(c)(2)(E)(ii)(I) of the Commodity national bank. (b) Acting as counterparty and Exchange Act (7 U.S.C. 2(c)(2)(E)(ii)(I)). exercising discretion prohibited. If a § 48.6 Disclosure. national bank can cause retail forex § 48.5 Application and closing out of (a) Risk disclosure statement required. offsetting long and short positions. transactions to be effected for a retail No national bank may open or maintain forex customer without the retail forex (a) Application of purchases and open an account that will engage in customer’s specific authorization, then sales. Any national bank that— retail forex transactions for a retail forex neither the national bank nor its (1) Engages in a retail forex customer unless the national bank has affiliates may act as the counterparty for transaction involving the purchase of furnished the retail forex customer with any retail forex transaction with that any currency for the account of any a separate written disclosure statement retail forex customer. retail forex customer when the account containing only the language set forth in of such retail forex customer at the time paragraph (d) of this section and the § 48.4 Supervisory non-objection. of such purchase has an open retail disclosures required by paragraphs (e) (a) Supervisory non-objection forex transaction for the sale of the same and (f) of this section. required. Before commencing a retail currency; (b) Acknowledgment of risk disclosure forex business, a national bank must (2) Engages in a retail forex statement required. The national bank provide the OCC with prior notice and transaction involving the sale of any must receive from the retail forex obtain from the OCC a written currency for the account of any retail customer a written acknowledgment supervisory non-objection. forex customer when the account of signed and dated by the customer that (b) Requirements for obtaining such retail forex customer at the time of the customer received and understood supervisory non-objection. such sale has an open retail forex the written disclosure statement (1) In order to obtain a written transaction for the purchase of the same required by paragraph (a) of this section. supervisory non-objection, a national currency; (c) Placement of risk disclosure bank must: (3) Purchases a put or call option statement. The disclosure statement (i) Establish to the satisfaction of the involving foreign currency for the may be attached to other documents as OCC that the national bank has account of any retail forex customer the initial page(s) of such documents established and implemented written when the account of such retail forex and as the only material on such policies, procedures, and risk customer at the time of such purchase page(s). measurement and management systems has a short put or call option position (d) Content of risk disclosure and controls for the purpose of ensuring with the same underlying currency, statement. The language set forth in the that it conducts retail forex transactions strike price, and expiration date as that written disclosure statement required by in a safe and sound manner and in purchased; or paragraph (a) of this section is as compliance with this part; and (4) Sells a put or call option involving follows: foreign currency for the account of any (ii) Provide such other information as Risk Disclosure Statement the OCC may require. retail forex customer when the account (2) The information provided under of such retail forex customer at the time Retail forex transactions involve the of such sale has a long put or call option leveraged trading of contracts denominated paragraph (b)(1) of this section must in foreign currency with a national bank as include, without limitation, information position with the same underlying your counterparty. Because of the leverage regarding: currency, strike price, and expiration and the other risks disclosed here, you can (i) Customer due diligence, including date as that sold must: rapidly lose all of the funds or property you without limitation credit evaluations, (i) Immediately apply such purchase pledge to the national bank as margin for customer appropriateness, and ‘‘know or sale against such previously held retail forex trading. You may lose more than your customer’’ documentation; opposite transaction; and you pledge as margin. (ii) New product approvals; (ii) Promptly furnish such retail forex If your margin falls below the required (iii) The haircuts that the national customer with a statement showing the amount, and you fail to provide the required financial result of the transactions additional margin, your national bank is bank will apply to noncash margin as required to liquidate your retail forex provided in § 48.9(b)(2); and involved and the name of any transactions. Your national bank cannot (iv) Conflicts of interest. introducing broker to the account. apply your retail forex losses to any of your (c) Treatment of existing retail forex (b) Close-out against oldest open assets or liabilities at the bank other than businesses. A national bank that is position. In all instances in which the funds or property that you have pledged as engaged in a retail forex business on short or long position in a customer’s margin for retail forex transactions. However, July 15, 2011, may continue to do so for retail forex account immediately prior to if you lose more money than you have up to six months, subject to an an offsetting purchase or sale is greater pledged as margin, the bank may seek to extension of time by the OCC, if it than the quantity purchased or sold, the recover that deficiency in an appropriate forum, such as a court of law. requests the supervisory non-objection national bank must apply such You should be aware of and carefully required by paragraph (a) of this section offsetting purchase or sale to the oldest consider the following points before within 30 days of July 15, 2011, and portion of the previously held short or determining whether retail forex trading is submits the information required to be long position. appropriate for you. submitted under paragraph (b) of this (c) Transactions to be applied as (1) Trading is not on a regulated market or section. directed by customer. Notwithstanding exchange—your national bank is your trading (d) Compliance with the Commodity paragraphs (a) and (b) of this section, to counterparty and has conflicting interests. Exchange Act. A national bank that is the extent the national bank allows The retail forex transaction you are entering engaged in a retail forex business on retail forex customers to use other into is not conducted on an interbank market nor is it conducted on a futures exchange July 15, 2011 and complies with methods of offsetting retail forex subject to regulation as a designated contract paragraph (c) of this section will be transactions, the offsetting transaction market by the Commodity Futures Trading deemed, during the six-month or must be applied as directed by a retail Commission. The foreign currency trades you extended period described in paragraph forex customer’s specific instructions. transact are trades with your national bank as

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the counterparty. When you sell, the national (7) Retail forex transactions are subject to (2) An explanation of how the bank is the buyer. When you buy, the investment risks, including possible loss of national bank will determine the national bank is the seller. As a result, when all amounts invested. amount of such fees, charges, spreads, you lose money trading, your national bank Finally, you should thoroughly investigate or commissions; and any statements by any national bank that is making money on such trades, in addition (3) The circumstances under which to any fees, commissions, or spreads the minimize the importance of, or contradict, national bank may charge. any of the terms of this risk disclosure. These the national bank may impose such fees, (2) An electronic trading platform for retail statements may indicate sales fraud. charges, spreads, or commissions. foreign currency transactions is not an This brief statement cannot, of course, (g) Future disclosure requirements. If, exchange. It is an electronic connection for disclose all the risks and other aspects of with regard to a retail forex customer, accessing your national bank. The terms of trading off-exchange foreign currency with a the national bank changes any fee, availability of such a platform are governed national bank. charge, or commission required to be only by your contract with your national I hereby acknowledge that I have received disclosed under paragraph (f) of this bank. Any trading platform that you may use and understood this risk disclosure section, then the national bank must to enter into off-exchange foreign currency statement. mail or deliver to the retail forex transactions is only connected to your lllllllllllllllllllll customer a notice of the changes at least national bank. You are accessing that trading Date 15 days prior to the effective date of the platform only to transact with your national lllllllllllllllllllll change. bank. You are not trading with any other Signature of Customer entities or customers of the national bank by (h) Form of disclosure requirements. accessing such platform. The availability and (e)(1) Disclosure of profitable The disclosures required by this section operation of any such platform, including the accounts ratio. Immediately following must be clear and conspicuous and consequences of the unavailability of the the language set forth in paragraph (d) designed to call attention to the nature trading platform for any reason, is governed of this section, the statement required and significance of the information only by the terms of your account agreement by paragraph (a) of this section must provided. with the national bank. include, for each of the most recent four (i) Other disclosure requirements (3) You may be able to offset or liquidate calendar quarters during which the unaffected. This section does not relieve any trading positions only through your national bank maintained retail forex a national bank from any other banking entity because the transactions are disclosure obligation it may have under not made on an exchange or regulated customer accounts: contract market, and your national bank may (i) The total number of retail forex applicable law. set its own prices. Your ability to close your customer accounts maintained by the § 48.7 Recordkeeping. transactions or offset positions is limited to national bank over which the national what your national bank will offer to you, as bank does not exercise investment (a) General rule. A national bank there is no other market for these discretion; engaging in retail forex transactions transactions. Your national bank may offer (ii) The percentage of such accounts must keep full, complete, and any prices it wishes, including prices derived that were profitable for retail forex systematic records, together with all from outside sources or not in its discretion. customer accounts during the quarter; pertinent data and memoranda, Your national bank may establish its prices and pertaining to its retail forex business, by offering spreads from third-party prices, including the following 6 types of (iii) The percentage of such accounts but it is under no obligation to do so or to records: that were not profitable for retail forex continue to do so. Your national bank may (1) Retail forex account records. For offer different prices to different customers at customer accounts during the quarter. each retail forex account: any point in time on its own terms. The (2) The national bank’s statement of terms of your account agreement alone (i) The name and address of the profitable trades must include the person for whom the account is carried govern the obligations your national bank has following legend: ‘‘Past performance is to you to offer prices and offer offset or or introduced and the principal not necessarily indicative of future occupation or business of the person; liquidating transactions in your account and results.’’ Each national bank must make any payments to you. The prices (ii) The name of any other person offered by your national bank may or may not provide, upon request, to any retail guaranteeing the account or exercising reflect prices available elsewhere at any forex customer or prospective retail trading control with respect to the exchange, interbank, or other market for forex customer the total number of retail account; foreign currency. forex accounts maintained by the (iii) The establishment or termination (4) Paid solicitors may have undisclosed national bank for which the national of the account; conflicts. The national bank may compensate bank does not exercise investment (iv) A means to identify the person introducing brokers for introducing your discretion, the percentage of such that has solicited and is responsible for account in ways that are not disclosed to you. accounts that were profitable, and the Such paid solicitors are not required to have, the account; percentage of such accounts that were (v) The funds in the account, net of and may not have, any special expertise in not profitable for each calendar quarter trading and may have conflicts of interest any commissions and fees; based on the method by which they are during the most recent five-year period (vi) The account’s net profits and compensated. You should thoroughly during which the national bank losses on open trades; investigate the manner in which all such maintained such accounts. (vii) The funds in the account plus or solicitors are compensated and be very (f) Disclosure of fees and other minus the net profits and losses on open cautious in granting any person or entity charges. Immediately following the trades, adjusted for the net option value authority to trade on your behalf. You should language required by paragraph (e) of in the case of open options positions; always consider obtaining dated written this section, the statement required by (viii) Financial ledger records that confirmation of any information you are paragraph (a) of this section must show all charges against and credits to relying on from your national bank in making include: any trading or account decisions. the account, including deposits, (5) Retail forex transactions are not insured (1) The amount of any fee, charge, withdrawals, and transfers, and charges by the Federal Deposit Insurance spread, or commission that the national or credits resulting from losses or gains Corporation. bank may impose on the retail forex on closed transactions; and (6) Retail forex transactions are not a customer in connection with a retail (ix) A list of all retail forex deposit in, or guaranteed by, a national bank. forex account or retail forex transaction; transactions executed for the account,

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with the details specified in paragraph expiration date, quantity, currency pair, only if for the relevant calendar quarter (a)(2) of this section. delivery date, strike price, details of the a retail forex transaction was executed (2) Retail forex transaction records. purchase price of the option, including in that account or the retail forex For each retail forex transaction: premium, mark-up, commission and account contained an open position (i) The date and time the national fees, and the person for whom the resulting from a retail forex transaction. bank received the order; transaction was made; and (c) Records related to violations of (ii) The price at which the national (iii) All other retail forex transactions law. A national bank engaging in retail bank placed the order, or, in the case of executed on that day for such account, forex transactions must make a record of an option, the premium that the retail including the date, price, quantity, all communications received by the forex customer paid; currency and the person for whom such national bank or its IAPs concerning (iii) The customer account transaction was made. facts giving rise to possible violations of identification information; (6) Other records. Written law related to the national bank’s retail (iv) The currency pair; acknowledgments of receipt of the risk forex business. The record must contain: (v) The size or quantity of the order; disclosure statement required by The name of the complainant, if (vi) Whether the order was a buy or § 48.6(b), offset instructions pursuant to provided; the date of the sell order; § 48.5(c), records required under communication; the relevant agreement, (vii) The type of order, if the order paragraphs (b) through (f) of this contract, or transaction; the substance of was not a market order; section, trading cards, signature cards, the communication; the name of the (viii) The size and price at which the street books, journals, ledgers, payment person that received the order is executed, or in the case of an records, copies of statements of communication; and the final option, the amount of the premium paid purchase, and all other records, data, disposition of the matter. for each option purchased, or the and memoranda that have been (d) Records for noncash margin. A amount credited for each option sold; prepared in the course of the national national bank must maintain a record of (ix) For options, whether the option is bank’s retail forex business. all noncash margin collected pursuant a put or call, expiration date, quantity, (b) Ratio of profitable accounts. to § 48.9. The record must show underlying contract for future delivery (1) With respect to its active retail separately for each retail forex customer: or underlying physical, strike price, and forex customer accounts over which it (1) A description of the securities or details of the purchase price of the did not exercise investment discretion property received; option, including premium, mark-up, and that are not retail forex proprietary (2) The name and address of such commission, and fees; and accounts open for any period of time retail forex customer; (x) For futures, the delivery date; and during the quarter, a national bank must (3) The dates when the securities or (xi) If the order was made on a trading prepare and maintain on a quarterly property were received; platform: basis (calendar quarter): (4) The identity of the depositories or (A) The price quoted on the trading (i) A calculation of the percentage of other places where such securities or platform when the order was placed, or, such accounts that were profitable; property are segregated or held, if in the case of an option, the premium (ii) A calculation of the percentage of applicable; quoted; such accounts that were not profitable; (5) The dates in which the national (B) The date and time the order was and bank placed or removed such securities transmitted to the trading platform; and (iii) Data supporting the calculations or property into or from such (C) The date and time the order was described in paragraphs (b)(1)(i) and (ii) depositories; and executed. of this section. (6) The dates of return of such (3) Price changes on a trading (2) In calculating whether a retail securities or property to such retail platform. If a trading platform is used, forex account was profitable or not forex customer, or other disposition daily logs showing each price change on profitable during the quarter, the thereof, together with the facts and the platform, the time of the change to national bank must compute the circumstances of such other disposition. (e) Order Tickets. the nearest second, and the trading realized and unrealized gains or losses (1) Except as provided in paragraph volume at that time and price. on all retail forex transactions carried in (e)(2) of this section, immediately upon (4) Methods or algorithms. Any the retail forex account at any time the receipt of a retail forex transaction method or algorithm used to determine during the quarter, subtract all fees, order, a national bank must prepare an the bid or asked price for any retail commissions, and any other charges order ticket for the order (whether forex transaction or the prices at which posted to the retail forex account during unfulfilled, executed, or canceled). The the quarter, and add any interest income customer orders are executed, order ticket must include: including, but not limited to, any and other income or rebates credited to (i) Account identification (account or markups, fees, commissions or other the retail forex account during the customer name with which the retail items which affect the profitability or quarter. All deposits and withdrawals of forex transaction was effected); risk of loss of a retail forex customer’s funds made by the retail forex customer (ii) Order number; transaction. during the quarter must be excluded (iii) Type of order (market order, limit (5) Daily records which show for each from the computation of whether the order, or subject to special instructions); business day complete details of: retail forex account was profitable or not (iv) Date and time, to the nearest (i) All retail forex transactions that are profitable during the quarter. minute, that the retail forex transaction futures transactions executed on that Computations that result in a zero or order was received (as evidenced by day, including the date, price, quantity, negative number must be considered a time-stamp or other timing device); market, currency pair, delivery date, retail forex account that was not (v) Time, to the nearest minute, that and the person for whom such profitable. Computations that result in a the retail forex transaction order was transaction was made; positive number must be considered a executed; and (ii) All retail forex transactions that retail forex account that was profitable. (vi) Price at which the retail forex are option transactions executed on that (3) A retail forex account must be transaction was executed. day, including the date, whether the considered ‘‘active’’ for purposes of (2) Post-execution allocation of transaction involved a put or call, the paragraph (b)(1) of this section if and bunched orders. Specific identifiers for

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retail forex accounts included in § 48.9 Margin requirements. (ii) Mark the value of the margin bunched orders need not be recorded at (a) Margin required. A national bank collected under this section from the time of order placement or upon report engaging, or offering to engage, in retail retail forex customer to market; and of execution as required under forex transactions must collect from (iii) Determine whether, based on the paragraph (e)(1) of this section if the each retail forex customer an amount of marks in paragraphs (d)(1)(i) and (ii) of following requirements are met: margin not less than: this section, the national bank has (i) The national bank placing and (1) Two percent of the notional value collected margin from the retail forex directing the allocation of an order of the retail forex transaction for major customer sufficient to satisfy the eligible for post-execution allocation has currency pairs and 5 percent of the requirements of this section. been granted written investment notional value of the retail forex (2) If, pursuant to paragraph (d)(1)(iii) discretion with regard to participating transaction for all other currency pairs; of this section, the national bank customer accounts and makes the (2) For short options, 2 percent for determines that it has not collected following information available to retail major currency pairs and 5 percent for margin from the retail forex customer forex customers upon request: all other currency pairs of the notional sufficient to satisfy the requirements of value of the retail forex transaction, plus this section then, within a reasonable (A) The general nature of the post- the premium received by the retail forex period of time, the national bank must execution allocation methodology the customer; or either: national bank will use; (3) For long options, the full premium (i) Collect margin from the retail forex (B) Whether the national bank has any charged and received by the national customer sufficient to satisfy the interest in accounts that may be bank. requirements of this section; or included with customer accounts in (b)(1) Form of margin. Margin (ii) Liquidate the retail forex bunched orders eligible for post- collected under paragraph (a) of this customer’s retail forex transactions. execution allocation; and section or pledged by a retail forex (e) Set-off prohibited. A national bank (C) Summary or composite data customer for retail forex transactions may not: sufficient for that customer to compare must be in the form of cash or the (1) Apply a retail forex customer’s the customer’s results with those of following financial instruments: retail forex obligations against any funds other comparable customers and, if (i) Obligations of the United States or other asset of the retail forex applicable, any account in which the and obligations fully guaranteed as to customer other than margin in the national bank has an interest. principal and interest by the United separate margin account described in (ii) Post-execution allocations are States; paragraph (c) of this section; made as soon as practicable after the (ii) General obligations of any State or (2) Apply a retail forex customer’s retail forex obligations to increase the entire transaction is executed; of any political subdivision thereof; (iii) General obligations issued or amount owed by the retail forex (iii) Post-execution allocations are fair guaranteed by any enterprise, as defined customer to the national bank under any and equitable, with no account or group in 12 U.S.C. 4502(10); loan; or of accounts receiving consistently (iv) Certificates of deposit issued by (3) Collect the margin required under favorable or unfavorable treatment; and an insured depository institution, as this section by use of any right of set- (iv) The post-execution allocation defined in section 3(c)(2) of the Federal off. methodology is sufficiently objective Deposit Insurance Act (12 U.S.C. § 48.10 Required reporting to customers. and specific to permit the OCC to verify 1813(c)(2)); the fairness of the allocations using that (v) Commercial paper; (a) Monthly statements. Each national methodology. (vi) Corporate notes or bonds; bank must promptly furnish to each (f) Record of monthly statements and (vii) General obligations of a sovereign retail forex customer, as of the close of confirmations. A national bank must nation; the last business day of each month or retain a copy of each monthly statement (viii) Interests in money market as of any regular monthly date selected, and confirmation required by § 48.10. mutual funds; and except for accounts in which there are (g) Form of record and manner of (ix) Such other financial instruments neither open positions at the end of the statement period nor any changes to the maintenance. The records required by as the OCC deems appropriate. (2) Haircuts. A national bank must account balance since the prior this section must clearly and accurately establish written policies and statement period but, in any event, not reflect the information required and procedures that include: less frequently than once every three provide an adequate basis for the audit (i) Haircuts for noncash margin months, a statement that clearly shows: of the information. A national bank collected under this section; and (1) For each retail forex customer: must create and maintain audio (ii) Annual evaluation, and, if (i) The open retail forex transactions recordings of oral orders and oral offset appropriate, modification, of the with prices at which acquired; instructions. Record maintenance may haircuts. (ii) The net unrealized profits or include the use of automated or (c) Separate margin account. Margin losses in all open retail forex electronic records provided that the collected by the national bank from a transactions marked to the market; records are easily retrievable and readily retail forex customer for retail forex (iii) Any money, securities, or other available for inspection. transactions or pledged by a retail forex property in the separate margin account (h) Length of maintenance. A national customer for retail forex transactions required by § 48.9(c); and bank must keep each record required by must be placed into a separate account. (iv) A detailed accounting of all this section for at least five years from (d) Margin calls; liquidation of financial charges and credits to the the date the record is created. position. retail forex customer’s retail forex (1) For each retail forex customer, at accounts during the monthly reporting § 48.8 Capital requirements. least once per day, a national bank period, including: Money, securities, or A national bank offering or entering must: property received from or disbursed to into retail forex transactions must be (i) Mark the value of the retail forex such customer; realized profits and well capitalized as defined by 12 CFR customer’s open retail forex positions to losses; and fees, charges, spreads, and part 6. market; commissions.

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(2) For each retail forex customer description of the option involved, and, to any extension, modification, or engaging in retail forex transactions that in the case of exercise, the details of the renewal thereof entered into after such are options: retail forex or physical currency date. (i) All such options purchased, sold, position that resulted therefrom exercised, or expired during the including, if applicable, the final trading § 48.12 Authorization to trade. monthly reporting period, identified by date of the retail forex transaction (a) Specific authorization required. No underlying retail forex transaction or underlying the option. national bank may directly or indirectly underlying currency, strike price, (c) Notwithstanding paragraph (b) of effect a retail forex transaction for the transaction date, and expiration date; this section, a retail forex transaction account of any retail forex customer (ii) The open option positions carried that is caused to be executed for a unless, before the retail forex for such customer and arising as of the pooled investment vehicle that engages transaction occurs, the retail forex end of the monthly reporting period, in retail forex transactions need be customer specifically authorized the identified by underlying retail forex confirmed only to the operator of such national bank to effect the retail forex transaction or underlying currency, pooled investment vehicle. transaction. strike price, transaction date, and (d) Controlled accounts. With respect (b) Requirements for specific expiration date; to any account controlled by any person authorization. A retail forex transaction (iii) All such option positions marked other than the retail forex customer for is ‘‘specifically authorized’’ for purposes to the market and the amount each whom such account is carried, each of this section if the retail forex position is in the money, if any; national bank must promptly furnish in customer specifies: (1) The precise retail forex transaction (iv) Any money, securities, or other writing to such other person the property in the separate margin account to be effected; information required by paragraphs (a) (2) The exact amount of the foreign required by § 48.9(c); and and (b) of this section. (v) A detailed accounting of all currency to be purchased or sold; and (e) Introduced accounts. Each (3) In the case of an option, the financial charges and credits to the statement provided pursuant to the identity of the foreign currency or retail forex customer’s retail forex provisions of this section must, if contract that underlies the option. accounts during the monthly reporting applicable, show that the account for period, including: Money, securities, or which the national bank was introduced § 48.13 Trading and operational standards. property received from or disbursed to by an introducing broker and the name (a) Internal rules, procedures, and such customer; realized profits and of the introducing broker. controls required. A national bank losses; premiums and mark-ups; and engaging in retail forex transactions § 48.11 Unlawful representations. fees, charges, and commissions. must establish and implement internal (b) Confirmation statement. Each (a) No implication or representation of policies, procedures, and controls national bank must, not later than the limiting losses. No national bank designed, at a minimum, to: next business day after any retail forex engaged in retail foreign exchange (1) Ensure, to the extent reasonable, transaction, send: transactions or its IAPs may imply or that each retail forex transaction that is (1) To each retail forex customer, a represent that it will, with respect to executable at or near the price that the written confirmation of each retail forex any retail customer forex account, for or national bank has quoted to the retail transaction caused to be executed by it on behalf of any person: forex customer is entered for execution for the customer, including offsetting (1) Guarantee such person or account before any retail forex transaction for: transactions executed during the same against loss; (i) A proprietary account; business day and the rollover of an open (2) Limit the loss of such person or (ii) An account for which a related retail forex transaction to the next account; or person may originate orders without the business day; (3) Not call for or attempt to collect prior specific consent of the account (2) To each retail forex customer margin as established for retail forex owner, if the related person has gained engaging in forex option transactions, a customers. knowledge of the retail forex customer’s written confirmation of each forex (b) No implication of representation of order prior to the transmission of an option transaction, containing at least engaging in prohibited acts. No national order for a proprietary account; the following information: bank or its IAPs may in any way imply (iii) An account in which a related (i) The retail forex customer’s account or represent that it will engage in any of person has an interest, if the related identification number; the acts or practices described in person has gained knowledge of the (ii) A separate listing of the actual paragraph (a) of this section. retail forex customer’s order prior to the amount of the premium, as well as each (c) No Federal government transmission of an order for a markup thereon, if applicable, and all endorsement. No national bank or its proprietary account; or other commissions, costs, fees, and IAPs may represent or imply in any (iv) An account in which a related other charges incurred in connection manner whatsoever that any retail forex person may originate orders without the with the forex option transaction; transaction or retail forex product has prior specific consent of the account (iii) The strike price; been sponsored, recommended, or owner, if the related person has gained (iv) The underlying retail forex approved by the OCC, the Federal knowledge of the retail forex customer’s transaction or underlying currency; government, or any agency thereof. order prior to the transmission of an (v) The final exercise date of the forex (d) Assuming or sharing of liability order for a proprietary account; option purchased or sold; and from bank error. This section does not (2) Prevent national-bank related (vi) The date that the forex option prevent a national bank from assuming persons from placing orders, directly or transaction was executed. or sharing in the losses resulting from indirectly, with another person in a (3) To each retail forex customer the national bank’s error or mishandling manner designed to circumvent the engaging in forex option transactions, of a retail forex transaction. provisions of paragraph (a)(1) of this upon the expiration or exercise of any (e) Certain guaranties unaffected. This section; and option, a written confirmation statement section does not affect any guarantee (3) Fairly and objectively establish thereof, which statement must include entered into prior to the effective date settlement prices for retail forex the date of such occurrence, a of this part, but this section does apply transactions.

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(b) Disclosure of retail forex (2) Adjust or alter prices for a retail (1) Requested by the retail forex transactions. No national bank engaging forex transaction after the transaction customer; in retail forex transactions may disclose has been confirmed to the retail forex (2) Made by the Federal Deposit that an order of another person is being customer; Insurance Corporation as receiver or held by the national bank, unless the (3) Provide to a retail forex customer conservator under the Federal Deposit disclosure is necessary to the effective a new bid price for a retail forex Insurance Act; or execution of such order or the transaction that is higher than its (3) Otherwise authorized by disclosure is made at the request of the previous bid without providing a new applicable law. OCC. asked price that is also higher than its (c) Obligations of transferee national (c) Handling of retail forex accounts previous asked price by a similar bank. A national bank to which retail of related persons of retail forex amount; forex accounts or positions are assigned counterparties. No national bank (4) Provide to a retail forex customer or transferred under paragraph (a) of engaging in retail forex transactions may a new bid price for a retail forex this section must provide to the affected knowingly handle the retail forex transaction that is lower than its retail forex customers the risk disclosure account of an employee of another retail previous bid without providing a new statements and forms of forex counterparty’s retail forex asked price that is also lower than its acknowledgment required by this part business unless the national bank: previous asked price by a similar and receive the required signed (1) Receives written authorization amount; or acknowledgments within 60 days of from a person designated by the other such assignments or transfers. This (5) Establish a new position for a retail forex counterparty with requirement does not apply if the retail forex customer (except one that responsibility for the surveillance over national bank has clear written evidence offsets an existing position for that retail the account pursuant to paragraph (a)(2) that the retail forex customer has forex customer) where the national bank of this section; received and acknowledged receipt of holds outstanding orders of other retail (2) Prepares immediately upon receipt the required disclosure statements. of an order for the account a written forex customers for the same currency record of the order, including the pair at a comparable price. § 48.16 Customer dispute resolution. account identification and order § 48.14 Supervision. (a) Voluntary submission of claims to number, and records thereon to the dispute or settlement procedures. No (a) Supervision by the national bank. nearest minute, by time-stamp or other national bank may enter into any A national bank engaging in retail forex timing device, the date and time the agreement or understanding with a transactions must diligently supervise order was received; and retail forex customer in which the (3) Transmits on a regular basis to the the handling by its officers, employees, customer agrees, prior to the time a other retail forex counterparty copies of and agents (or persons occupying a claim or grievance arises, to submit such all statements for the account and of all similar status or performing a similar claim or grievance to any settlement written records prepared upon the function) of all retail forex accounts procedure unless the following receipt of orders for the account carried, operated, or advised by at the conditions are satisfied: pursuant to paragraph (c)(2) of this national bank and all activities of its (1) Signing the agreement is not a section. officers, employees, and agents (or condition for the customer to use the (d) Related person of national bank persons occupying a similar status or services offered by the national bank. establishing account at another retail performing a similar function) relating (2) If the agreement is contained as a forex counterparty. No related person of to its retail forex business. clause or clauses of a broader a national bank working in the national (b) Supervision by officers, employees, agreement, the customer separately bank’s retail forex business may have an or agents. An officer, employee, or agent endorses the clause or clauses. account, directly or indirectly, with of a national bank must diligently (3) The agreement advises the retail another retail forex counterparty unless supervise his or her subordinates’ forex customer that, at such time as the the other retail forex counterparty: handling of all retail forex accounts at customer notifies the national bank that (1) Receives written authorization to the national bank and all the the customer intends to submit a claim open and maintain the account from a subordinates’ activities relating to the to arbitration, or at such time the person designated by the national bank national bank’s retail forex business. national bank notifies the customer of its intent to submit a claim to with responsibility for the surveillance § 48.15 Notice of transfers. over the account pursuant to paragraph arbitration, the customer will have the (a)(2) of this section; and (a) Prior notice generally required. opportunity to choose a person qualified (2) Transmits on a regular basis to the Except as provided in paragraph (b) of in dispute resolution to conduct the national bank copies of all statements this section, a national bank must proceeding. for the account and of all written provide a retail forex customer with 30 (4) The agreement must acknowledge records prepared by the other retail days’ prior notice of any assignment of that the national bank will pay any forex counterparty upon receipt of any position or transfer of any account incremental fees that may be assessed in orders for the account pursuant to of the retail forex customer. The notice connection with the dispute resolution, paragraph (a)(2) of this section. must include a statement that the retail unless it is determined in the (e) Prohibited trading practices. No forex customer is not required to accept proceeding that the retail forex customer national bank engaging in retail forex the proposed assignment or transfer and has acted in bad faith in initiating the transactions may: may direct the national bank to proceeding. (1) Enter into a retail forex liquidate the positions of the retail forex (5) The agreement must include the transaction, to be executed pursuant to customer or transfer the account to a following language printed in large a market or limit order at a price that is retail forex counterparty of the retail boldface type: not at or near the price at which other forex customer’s selection. Two forums exist for the resolution of retail forex customers, during that same (b) Exceptions. The requirements of disputes related to retail forex time period, have executed retail forex paragraph (a) of this section do not transactions: Civil court litigation and transactions with the national bank; apply to transfers: arbitration conducted by a private

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organization. The opportunity to settle (1) Arises out of the transaction or date of the DFA’s enactment, July 21, disputes by arbitration may in some occurrence that is the subject of the 2011. Section 343 of the DFA amended cases provide benefits to customers, retail forex customer’s claim or section 11(a)(1) of the Federal Deposit including the ability to obtain an grievance; and Insurance Act, 12 U.S.C. 1821(a)(1), to expeditious and final resolution of (2) Does not require for adjudication provide full insurance coverage for disputes without incurring substantial the presence of essential witnesses, depository institution noninterest- cost. Each customer must individually parties, or third persons over which the bearing transaction accounts from examine the relative merits of settlement process lacks jurisdiction. December 31, 2010, through December arbitration and consent to this 31, 2012. § 48.17 Reservation of authority. arbitration agreement must be In light of the prospective repeal of voluntary. The OCC may modify the disclosure, the demand deposit interest prohibition, By signing this agreement, you: (1) recordkeeping, capital and margin, the FDIC proposed to rescind 12 CFR May be waiving your right to sue in a reporting, business conduct, part 329, the regulation which court of law; and (2) are agreeing to be documentation, or other standards or implements that prohibition with bound by arbitration of any claims or requirements under this part for a respect to state-chartered, nonmember counterclaims that you or [insert name specific retail forex transaction or a (SNM) banks to be effective on the same of national bank] may submit to class of retail forex transactions if the date as the statutory repeal, July 21, arbitration under this agreement. In the OCC determines that the modification is 2011. 76 FR 21265 (Apr. 15, 2011) event a dispute arises, you will be consistent with safety and soundness (NPR). At the same time, however, a notified if [insert name of national bank] and the protection of retail forex regulatory definition of the term intends to submit the dispute to customers. ‘‘interest’’ would still be useful in arbitration. Dated: July 7, 2011. interpreting the requirements of section You need not sign this agreement to John Walsh, 343 of the DFA providing temporary, open or maintain a retail forex account unlimited deposit insurance coverage with [insert name of national bank]. Acting Comptroller of the Currency. [FR Doc. 2011–17514 Filed 7–13–11; 8:45 am] for noninterest-bearing transaction (b) Election of forum. accounts. For this reason, in the NPR BILLING CODE 4810–33–P (1) Within 10 business days after the FDIC also proposed to transfer the receipt of notice from the retail forex definition of ‘‘interest’’ found at 12 CFR customer that the customer intends to 329.1(c) to Part 330, specifically the FEDERAL DEPOSIT INSURANCE submit a claim to arbitration, the definitions section at 12 CFR 330.1. The CORPORATION national bank must provide the FDIC also specifically solicited customer with a list of persons qualified 12 CFR Parts 329 and 330 comment on whether other parts of Part in dispute resolution. 329 could also prove useful and (2) The customer must, within 45 RIN 3064–AD78 therefore should be moved into Part 330 days after receipt of such list, notify the as well. In addition, the FDIC sought national bank of the person selected. Interest on Deposits; Deposit comment on every other aspect of the The customer’s failure to provide such Insurance Coverage proposed rule.2 notice must give the national bank the AGENCY: right to select a person from the list. Federal Deposit Insurance II. Comment Summary and Discussion (c) Enforceability. A dispute Corporation (FDIC). The FDIC received eight comments on settlement procedure may require ACTION: Final rule. the NPR. Three were from community parties using the procedure to agree, SUMMARY: banks, one was from a large depository under applicable state law, submission The FDIC is issuing a final institution, two were from depository agreement, or otherwise, to be bound by rule amending its regulations to reflect institution trade groups, one from a an award rendered in the procedure if section 627 of the Dodd-Frank Wall financial consulting firm, and one was the agreement to submit the claim or Street Reform and Consumer Protection 1 from a legal representative for a money grievance to the procedure complies Act (the DFA), repealing the market fund. with paragraph (a) of this section or the prohibition against the payment of The chief points were: agreement to submit the claim or interest on demand deposit accounts 1. The FDIC should stop or delay grievance to the procedure was made effective July 21, 2011. repeal of the prohibition (four after the claim or grievance arose. Any DATES: The final rule is effective July 21, commenters); award so rendered by the procedure will 2011. 2. Community banks will be harmed be enforceable in accordance with FOR FURTHER INFORMATION CONTACT: by repeal of the prohibition (four applicable law. Martin Becker, Senior Consumer Affairs (d) Time limits for submission of Specialist, Division of Consumer and commenters); claims. The dispute settlement Depositor Protection, (703) 254–2233, 3. The FDIC should add the Part 329 procedure used by the parties may not Mark Mellon, Counsel, Legal Division, section concerning premiums to Part include any unreasonably short (202) 898–3884, Federal Deposit 330 (three commenters); and limitation period foreclosing submission Insurance Corporation, 550 17th Street, 4. The FDIC should adopt or of a customer’s claims or grievances or NW., Washington, DC 20429. incorporate all Federal Reserve interpretations and advisory opinions counterclaims. SUPPLEMENTARY INFORMATION: (e) Counterclaims. A procedure for the I. Background 2 In counterpart to this rulemaking, the Board of settlement of a retail forex customer’s Governors of the Federal Reserve System (the claims or grievances against a national Section 627 of the DFA repealed the Federal Reserve) have issued a notice of proposed bank or employee thereof may permit statutory prohibition against the rulemaking to repeal 12 CFR Part 217, Prohibition the submission of a counterclaim in the payment of interest on demand Against Payment of Interest on Demand Deposits (Regulation Q). See 76 Federal Register 20892 (Apr. procedure by a person against whom a deposits, effective one year from the 14, 2011). Regulation Q implements the prohibition claim or grievance is brought if the against the payment of interest on demand deposits counterclaim: 1 Public Law 111–203, 124 Stat. 1376. with respect to member banks.

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pertaining to Regulation Q (two depository institutions with heightened account the next morning. The commenters). risk due to repeal of the statutory institution pays interest on the funds prohibition; (c) stress tests should be while they are in the repo account. Repeal or Delay Prohibition performed on depository institutions Thus, for some institutions the repeal of Commenters opposed to immediate before they are allowed to pay interest the prohibition against paying interest implementation of the repeal of the on business checking accounts; (d) call on demand deposits will result in the prohibition made several arguments. All reports should be modified to provide replacement of indirect payments of four commenters stated that repeal for the reporting of interest rate risk; and interest on demand deposits with would result in increased deposit (e) reserve requirements should be explicit, direct interest-bearing demand volatility as depository institutions increased to reduce competition for deposit accounts. competed for an increased share of deposits. business deposits by offering Another commenter recommended Repeal of the prohibition might continually higher rates of interest. that the FDIC hold roundtables prior to directly benefit community banks by Three of the four contended this would the July 21, 2011, repeal date, urged the allowing them to attract more severely affect community banks. One FDIC and the Federal Reserve to work potentially stable deposits which could commenter called for delay until the together to clarify issues in connection reduce their need for higher-cost, more safety and soundness consequences of with the repeal, and requested that the volatile funding. This could lower repeal are understood, arguing that the FDIC provide more time for compliance community banks’ funding costs and FDIC and the Federal Reserve have the by depository institutions. This also allow them to plan business growth authority to issue a statement of policy commenter noted that while the FDIC more dependably and rigorously. that would prevent interest payments on has no authority to delay or to phase in Interest rates are currently at a historic deposits. Another commenter the statutory repeal, efforts still need to low. This should provide depository recommended a phase-in with be made to provide depository institutions with an adjustment period. immediate implementation of the repeal institutions with clarity. The commenter If the cost of funds should increase, followed by a twelve- to eighteen-month noted the need to revise call reports and depository institutions should have time grandfather for Federal Reserve thrift financial reports to indicate to make the necessary adjustments to interpretations and advisory opinions interest-bearing demand deposit protect profits and manage interest rate concerning Regulation Q. Another accounts. It also noted the need for risk through measures such as changes commenter stated that efforts to repeal clarity with respect to so-called ‘‘hybrid to fee structures and rates to balance out the prohibition should either cease or be products,’’ deposit accounts that both increased interest expense. With regard delayed until its impact is understood. pay interest and offer earnings credits. to interest rate risk and potential In response to these comments, the A third commenter urged that the liquidity issues, the FDIC and the other FDIC notes that, as previously observed, Financial Stability Oversight Council federal banking agencies have already pursuant to section 627 of the DFA, as (the FSOC) should address the systemic provided depository institutions with of July 21, 2011, the prohibition against threat which the upcoming repeal poses detailed guidance which those the payment of interest on demand to the ‘‘U.S. banking and financial institutions are expected to follow. deposits will be repealed by operation system and the economy as a whole.’’ 3 of statute, as a matter of law. After carefully considering these Add Part 329 Section on Premiums to comments, the FDIC has concluded that Part 330 Harm to Community Banks the commenters raise valid concerns Three commenters stated that the Part As noted previously, several about potential risks arising from the 329 section pertaining to premiums commenters contended repeal would repeal of the prohibition against paying should be added to Part 330 along with result in heightened competition for interest on demand deposits. Based on the definition of ‘‘interest.’’ Section deposits. They reasoned that large banks currently available information, 329.103 describes the circumstances will offer high rates of interest and lure however, there are also potential under which a depository institution’s away business depositors previously benefits which may balance out or provision of a premium to a depositor content to do business with community outweigh those risks. While it is true banks based on personal services that depository institutions may incur will not be considered a payment of (relationship deposits). Community added expense by offering interest interest. It is substantially identical to banks would then be pressured to offer payments to accounts where it was section 217.101 in Regulation Q. higher rates of interests in order to stay previously unavailable (such as Commenters contended that retaining competitive, further cutting already thin business checking), they may also save this section along with the definition of marginal rates of return. Increased funds by no longer having to waive interest might prove useful in deposits might also mean added expenses on such accounts (e.g., courier determining whether an account pressure for depository institutions to service), as an inducement to retain qualifies for unlimited insurance loan these new funds out, possibly accountholders. Moreover, many coverage as a noninterest-bearing leading to unsafe and unsound lending institutions offer products to business transaction account. and further weakening depository customers that serve as a substitute for In response to these comments, the institutions’ fiscal health. paying interest on demand deposit FDIC agrees that there would be utility As potential responses to these accounts. The most notable example is in importing section 329.103 into Part anticipated negative consequences, one a repo sweep account in which funds 330. The FDIC will therefore import commenter recommended that the FDIC are swept overnight from a demand section 329.103 into Part 330 as an take a number of steps: (a) The FDIC deposit account to a repo account and interpretive rule, to be designated as should consider issuing a statement of swept back to the demand deposit section 330.101. This step is also policy to warn depository institutions consistent with the FDIC’s decision, as about the need for interest rate risk 3 Created by section 111 of the DFA, the FSOC is explained in more detail below, to look management; (b) interest rate risk charged with identifying threats to the financial to Regulation Q and Federal Reserve stability of the U.S., promoting market discipline, should be quantified and an increased and responding to emerging risks to the stability of interpretations of that rule when capital charge should be imposed on the U.S. financial system. construing section 343.

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Retention of Federal Reserve Regulation The Riegle Community Development D. Small Business Regulatory Q Staff Opinions and Interpretive and Regulatory Improvement Act Enforcement Fairness Act Letters provides that any new regulations or The Office of Management and Budget Two commenters called for retention amendments to regulations prescribed (OMB) has determined that the final of Federal Reserve staff opinions and by a Federal banking agency that impose rule is not a ‘‘major rule’’ within the interpretive letters concerning additional reporting, disclosures, or meaning of the relevant sections of the Regulation Q. They stated that these other new requirements on insured Small Business Regulatory Enforcement materials would continue to be useful in depository institutions shall take effect Act of 1996 (SBREFA) (5 U.S.C. 801, et determining whether depository on the first day of a calendar quarter seq.). institutions may continue to rely on which begins on or after the date on As required by SBREFA, the FDIC practices established pursuant to these which the regulations are published in will file the appropriate reports with documents (one example given was final form, unless the agency Congress and the General Accounting third party payment programs). One determines, for good cause published Office so that the final rule may be commenter recommended that, as of with the rule, that the rule should reviewed. 4 July 21, 2011, the materials be retained become effective before such time. The E. The Treasury and General for a period of eighteen months or more. final rule does not impose any As noted previously, section 217.101 additional reporting, disclosures, or Government Appropriations Act, 1999— of Regulation Q is substantially other new requirements on insured Assessment of Federal Regulations and identical to section 329.103. Moreover, depository institutions. Policies on Families the FDIC, along with other federal The final rule is therefore effective The FDIC has determined that the banking agencies, has regularly upon July 21, 2011, the date when the final rule will not affect family well- interpreted issues arising from the statutory prohibition against the being within the meaning of section 654 prohibition against the payment of payment of interest on demand deposits of the Treasury and General interest on demand deposits in the same will be repealed under section 627 of Government Appropriations Act, manner as the Federal Reserve. In light the DFA. enacted as part of the Omnibus of this agency consistency and the B. Paperwork Reduction Act Consolidated and Emergency continued potential instrumental value No collections of information Supplemental Appropriations Act of of agency interpretations regarding this pursuant to the Paperwork Reduction 1999 (Pub. L. 105–277, 112 Stat. 2681). issue, the FDIC will continue to rely Act (44 U.S.C. Ch. 3501 et seq.) are F. Plain Language upon Regulation Q and Federal Reserve contained in the final rule. interpretations of that regulation for Section 722 of the Gramm-Leach- purposes of implementing temporary, C. Regulatory Flexibility Act Bliley Act, Public Law 106–102, 113 unlimited deposit insurance coverage The Regulatory Flexibility Act (RFA) Stat. 1338, 1471 (Nov. 12, 1999), pursuant to section 343 of the DFA. requires that each federal agency either requires the federal banking agencies to use plain language in all proposed and III. Final Rule certify that a proposed rule would not, if adopted in final form, have a final rules published after January 1, For the reasons set forth in the significant economic impact on a 2000. No commenter suggested that the preceding section, the FDIC is issuing substantial number of small entities or NPR was materially unclear, and the the final rule. prepare an initial regulatory flexibility FDIC believes that the final rule is substantively similar to the NPR. IV. Regulatory Analysis and Procedure analysis of the rule and publish the analysis for comment. For purposes of List of Subjects A. Effective Date the RFA analysis or certification, Absent a showing of ‘‘good cause,’’ financial institutions with total assets of 12 CFR Part 329 the Administrative Procedure Act (5 $175 million or less are considered to be Banks, Banking, Interest rates. U.S.C. 553(d)(3)) requires a 30-day ‘‘small entities.’’ The FDIC hereby 12 CFR Part 330 delayed effective date before a final rule certifies pursuant to 5 U.S.C. 605(b) that may become effective. The FDIC finds the final rule will not have a significant Bank deposit insurance, Banks, good cause for waiving this requirement economic impact on a substantial Banking, Reporting and recordkeeping because the final rule simply conforms number of small entities. This is requirements, Savings and loan the FDIC’s regulations to reflect the because the FDIC already applies the associations, Trusts and trustees. statutory repeal of the prohibition Part 329 definition of ‘‘interest’’ and the For the reasons set forth in the against the payment of interest on interpretive rule on premiums for preamble, under the authority of section demand deposit accounts. As discussed, purposes of determining whether an 627 of the Dodd-Frank Wall Street that statutory repeal becomes effective account qualifies for full deposit Reform and Consumer Protection Act, July 21, 2011. Delaying the effective insurance coverage as a noninterest- the FDIC amends chapter III of title 12 date of the final rule for thirty days bearing transaction account. The FDIC is of the Code of Federal Regulations as would result in a gap between the only transferring the definition from follows: effective date of the statutory repeal and Part 329 to Part 330 because the former the effective date of the amendments to regulation will become moot on July 21, PART 329—INTEREST ON DEPOSITS the FDIC’s regulations reflecting that 2011, pursuant to section 627 of the ■ 1. Part 329 is removed and reserved. statutory repeal. Also, the FDIC deems DFA and its repeal of the statutory ban it unnecessary to provide a delayed on the payment of interest on demand PART 330—DEPOSIT INSURANCE effective date for the final rule because deposits. There will therefore be no COVERAGE there are no actions SNM banks must significant economic impact on a take to implement the final rule; as substantial number of small entities as ■ 2. The authority citation for part 330 noted, the final rule simply conforms a result of this change. continues to read as follows: 12 U.S.C. the FDIC’s regulations to reflect a 1813(l), 1813(m), 1817(i), 1818(q), statutory change. 4 12 U.S.C. 4802. 1819(Tenth), 1820(f), 1821(a), 1822(c).

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■ 3. In § 330.1, paragraphs (k) through (b) The costs of premiums may not be 8–10 stage spool, uncontained engine (r) of § 330.1 are redesignated as averaged. failure, and damage to the airplane. paragraphs (l) through (s) respectively (c) A bank may not solicit funds for DATES: This AD is effective August 18, and new paragraph (k) is added to read deposit on the basis that the bank will 2011. as follows: divide the funds into several accounts ADDRESSES: For service information for the purpose of enabling the bank to § 330.1 Definitions. identified in this AD, contact GE– pay the depositor more than two Aviation M/D Rm. 285, One Neumann * * * * * premiums within a twelve-month Way, Cincinnati, OH 45215, phone: (k) Interest, with respect to a deposit, interval on the solicited funds. 513–552–3272; e-mail: means any payment to or for the (d) The bank must retain sufficient [email protected]. You may review account of any depositor as information for examiners to determine copies of the referenced service compensation for the use of funds that the requirements of this section information at the FAA, Engine & constituting a deposit. A bank’s have been satisfied. Propeller Directorate, 12 New England absorption of expenses incident to (e) Notwithstanding paragraph (a) of Executive Park, Burlington, MA. For providing a normal banking function or this section, any premium that is not, information on the availability of this its forbearance from charging a fee in directly or indirectly, related to or material at the FAA, call 781–238–7125. connection with such a service is not dependent on the balance in a demand considered a payment of interest. deposit account and the duration of the Examining the AD Docket * * * * * account balance shall not be considered You may examine the AD docket on ■ 4. In § 330.6, in the first sentence of the payment of interest on a demand the Internet at http:// paragraph (b) remove ‘‘§ 330.1(m)’’ and deposit account and shall not be subject www.regulations.gov; or in person at the add in its place ‘‘§ 330.1(n)’’. to the limitations in paragraph (a) of this Docket Management Facility between section. ■ 5. In § 330.9, in the first sentence of 9 a.m. and 5 p.m., Monday through paragraph (c)(1) remove ‘‘§ 330.1(k)’’ By order of the Board of Directors. Friday, except Federal holidays. The AD and add in its place ‘‘§ 330.1(l)’’. Dated at Washington, DC, this 6th day of docket contains this AD, the regulatory evaluation, any comments received, and ■ 6. In § 330.12: July 2011. other information. The address for the ■ a. In the first sentence of paragraph (a) Federal Deposit Insurance Corporation. Robert E. Feldman, Docket Office (phone: 800–647–5527) is remove ‘‘§ 330.1(p)’’ and add in its place Document Management Facility, U.S. ‘‘§ 330.1(q)’’. Executive Secretary. ■ Department of Transportation, Docket b. In the first sentence of paragraph [FR Doc. 2011–17686 Filed 7–13–11; 8:45 am] Operations, M–30, West Building (b)(1) remove ‘‘§ 330.1(o)’’ and add in its BILLING CODE 6714–01–P Ground Floor, Room W12–140, 1200 place ‘‘§ 330.1(p)’’. New Jersey Avenue SE., Washington, ■ 7. In § 330.13, in the first sentence of DC 20590. paragraph (a) remove ‘‘§ 330.1(l)’’ and DEPARTMENT OF TRANSPORTATION FOR FURTHER INFORMATION CONTACT: add in its place ‘‘§ 330.1(m)’’. In the last Jason Yang, Aerospace Engineer, Engine Federal Aviation Administration sentence of paragraph (a) remove Certification Office, FAA, 12 New ‘‘§ 330.1(q)’’ and add in its place England Executive Park, Burlington, MA 14 CFR Part 39 ‘‘§ 330.1(r)’’. 01803; phone: 781–238–7747; fax: 781– ■ 8. In § 330.16, in the first sentence of [Docket No. FAA–2010–1024; Directorate 238–7199; e-mail: [email protected]. paragraph (a) remove ‘‘§ 330.1(r)’’ and Identifier 2010–NE–34–AD; Amendment 39– SUPPLEMENTARY INFORMATION: add in its place ‘‘§ 330.1(s)’’. 16753; AD 2011–15–06] ■ 9. New § 330.101 is added to read as Discussion RIN 2120–AA64 follows: We issued a notice of proposed § 330.101 Premiums. Airworthiness Directives; General rulemaking (NPRM) to amend 14 CFR Electric Company GE90–76B; GE90– part 39 to include an airworthiness This interpretive rule describes 77B; GE90–85B; GE90–90B; and directive (AD) that would apply to the certain payments that are not deemed to GE90–94B Turbofan Engines specified products. That NPRM be ‘‘interest’’ as defined in § 330.1(k). published in the Federal Register on (a) Premiums, whether in the form of AGENCY: Federal Aviation December 22, 2010 (75 FR 80370). That merchandise, credit, or cash, given by a Administration (FAA), DOT. NPRM proposed to require initial and bank to the holder of a deposit will not ACTION: Final rule. repetitive FPIs and ECIs of the HPCR be regarded as ‘‘interest’’ as defined in 8–10 stage spool, P/Ns 1844M90G01 § 330.1(k) if: SUMMARY: We are adopting a new and 1844M90G02, for cracks between (1) The premium is given to the airworthiness directive (AD) for the the 9–10 stages, at each piece-part depositor only at the time of the products listed above. This AD requires exposure. opening of a new account or an addition initial and repetitive fluorescent to an existing account; penetrant inspections (FPIs) and eddy Comments (2) No more than two premiums per current inspections (ECIs) of the high- We gave the public the opportunity to deposit are given in any twelve-month pressure compressor rotor (HPCR) 8–10 participate in developing this AD. The interval; and stage spool, part numbers (P/Ns) following presents the comments (3) The value of the premium (in the 1844M90G01 and 1844M90G02, for received on the proposal and the FAA’s case of merchandise, the total cost to the cracks between the 9–10 stages at each response to each comment. bank, including shipping, warehousing, piece-part exposure. This AD was packaging, and handling costs) does not prompted by cracks discovered on one Request exceed $10 for a deposit of less than HPCR 8–10 spool between the 9–10 Two commenters, General Electric $5,000 or $20 for a deposit of $5,000 or stages in the weld joint. We are issuing Company and The Boeing Company, more. this AD to prevent failure of the HPCR requested that we remove the ‘‘Unsafe

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Condition’’ paragraph from the AD, and public interest require adopting the AD List of Subjects in 14 CFR Part 39 reword the Summary section to as proposed. resemble the Summary section of AD Air transportation, Aircraft, Aviation 2002–04–11. The commenters stated Costs of Compliance safety, Incorporation by reference, Safety. that, by their analyses, cracks in the We estimate that this AD will affect weld joint would not develop into an 33 GE90–76B; GE90–77B; GE90–85B; Adoption of the Amendment uncontained failure. The commenters GE90–90B; and GE90–94B engines, stated that HPCR 8–10 stage spools, installed on airplanes of U.S. registry. Accordingly, under the authority delegated to me by the Administrator, P/Ns 1844M90G01 and 1844M90G02, be We also estimate that it will take about the FAA amends 14 CFR part 39 as inspected by an enhanced inspection, 2 work-hours per engine to perform the follows: similar to those parts covered in AD inspection, and that the average labor 2002–04–11. rate is $85 per work-hour. Based on PART 39—AIRWORTHINESS Answer these figures, we estimate the total cost DIRECTIVES of the AD to U.S. operators to be $5,610 We do not agree. AD 2002–04–11 was for one inspection cycle. issued because of additional focused ■ 1. The authority citation for part 39 inspection procedures that had been Authority for This Rulemaking continues to read as follows: developed by the manufacturer. Because Authority: 49 U.S.C. 106(g), 40113, 44701. cracks were discovered on one HPCR Title 49 of the United States Code 8–10 spool between the 9–10 stages in specifies the FAA’s authority to issue § 39.13 [Amended] rules on aviation safety. Subtitle I, the weld joint, this unsafe condition is ■ 2. The FAA amends § 39.13 by adding likely to exist or develop in other section 106, describes the authority of the FAA Administrator. Subtitle VII: the following new airworthiness products of the same type design. The directive (AD): unsafe condition could result in failure Aviation Programs, describes in more of the HPCR 8–10 stage spool, detail the scope of the Agency’s 2011–15–06 General Electric Company: uncontained engine failure, and damage authority. Amendment 39–16753; Docket No. FAA–2010–1024; Directorate Identifier to the airplane. We determined that this We are issuing this rulemaking under 2010–NE–34–AD. unsafe condition requires mandatory the authority described in Subtitle VII, repetitive inspections for cracks. We did Part A, Subpart III, Section 44701: Effective Date not change the AD. ‘‘General requirements.’’ Under that (a) This AD is effective August 18, 2011. Request section, Congress charges the FAA with Affected ADs promoting safe flight of civil aircraft in (b) None. China Southern Airlines requested air commerce by prescribing regulations that we specify any terminating actions for practices, methods, and procedures Applicability to the repetitive inspections of the the Administrator finds necessary for (c) This AD applies to General Electric affected part numbers of HPCR 8–10 safety in air commerce. This regulation Company GE90–76B; GE90–77B; GE90–85B; spools. is within the scope of that authority GE90–90B; and GE90–94B turbofan engines with a high-pressure compressor rotor Answer because it addresses an unsafe condition that is likely to exist or develop on (HPCR) 8–10 stage spool, part number (P/N) 1844M90G01 or 1844M90G02, installed. We disagree. Unless the part is products identified in this rulemaking replaced with a part not subject to this action. Unsafe Condition AD, no terminating actions to the (d) This AD was prompted by cracks repetitive inspections exist. Regulatory Findings discovered on one HPCR 8–10 spool between This AD will not have federalism the 9–10 stages in the weld joint. We are Question issuing this AD to prevent failure of the implications under Executive Order China Southern Airlines asked if the HPCR 8–10 stage spool, uncontained engine 13132. This AD will not have a failure, and damage to the airplane. initial and repetitive FPIs and ECIs of substantial direct effect on the States, on the HPCR 8–10 stage spool at each the relationship between the national Compliance piece-part exposure in the shop government and the States, or on the (e) Comply with this AD within the effectively prevent failure during distribution of power and compliance times specified, unless already normal engine operation, since the high- responsibilities among the various done. pressure module overhaul interval is levels of government. Inspections of the HPCR 8–10 Stage Spool 48,000 hours or 6,000 cycles when the spool can have piece-part exposure per For the reasons discussed above, I (f)(1) At the next piece-part exposure of the current GE90 Workscope Planning certify that this AD: HPCR 8–10 stage spool after the effective date of this AD, perform a fluorescent penetrant Guide. (1) Is not a ‘‘significant regulatory inspection (FPI) and eddy current inspection Answer action’’ under Executive Order 12866, (ECI) of the weld joint between the 9–10 (2) Is not a ‘‘significant rule’’ under stages of the HPCR 8–10 stage spool for Yes, the FAA has determined that the DOT Regulatory Policies and Procedures cracks. actions required by the AD will (44 FR 11034, February 26, 1979), (2) Thereafter, perform repetitive FPIs and effectively prevent failure of the HPCR ECIs of the weld joint between the 9–10 8–10 stage spool by removing cracked (3) Will not affect intrastate aviation stages of the HPCR 8–10 stage spool for parts from service. in Alaska, and cracks at every piece-part exposure of the HPCR 8–10 stage spool. (4) Will not have a significant Conclusion (3) Remove from service any HPCR 8–10 economic impact, positive or negative, stage spool found cracked. We reviewed the relevant data, on a substantial number of small entities (4) Guidance on performing the FPI can be considered the comments received, and under the criteria of the Regulatory found in GE90 (GEK100700) Engine Manual, determined that air safety and the Flexibility Act. Chapter 72–31–08, Inspection 001.

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(5) Guidance on performing the ECI can be 1 CFR part 51, subject to the annual Administrator. Subtitle VII, Aviation found in GE90 (GEK100700) Engine Manual, revision of FAA Order 7400.9 and Programs, describes in more detail the Chapter 72–31–08, Special Procedures 001. publication of conforming amendments. scope of the agency’s authority. This Definition FOR FURTHER INFORMATION CONTACT: rulemaking is promulgated under the (g) For the purpose of this AD, piece-part Eldon Taylor, Federal Aviation authority described in Subtitle VII, Part exposure is when the HPCR stage 8–10 spool Administration, Operations Support A, Subpart I, Section 40103. Under that is removed from the engine and completely Group, Western Service Center, 1601 section, the FAA is charged with disassembled. Lind Avenue, SW., Renton, WA 98057; prescribing regulations to assign the use Alternative Methods of Compliance telephone (425) 203–4537. of airspace necessary to ensure the (AMOCs) SUPPLEMENTARY INFORMATION: safety of aircraft and the efficient use of airspace. This regulation is within the (h) The Manager, Engine Certification History Office, FAA, has the authority to approve scope of that authority as it establishes AMOCs for this AD, if requested using the On April 15, 2011, the FAA published controlled airspace at Florence procedures found in 14 CFR 39.19. in the Federal Register a notice of Municipal Airport, Florence, OR. Related Information proposed rulemaking to establish controlled airspace at Florence, OR (76 List of Subjects in 14 CFR Part 71 (i)(1) For more information about this AD, FR 21269). Interested parties were contact Jason Yang, Aerospace Engineer, Airspace, Incorporation by reference, invited to participate in this rulemaking Engine Certification Office, FAA, 12 New Navigation (air). England Executive Park, Burlington, MA effort by submitting written comments 01803; phone: 781–238–7747; fax: 781–238– on the proposal to the FAA. No Adoption of the Amendment 7199; e-mail: [email protected]. comments were received. (2) For service information identified in Class E airspace designations are In consideration of the foregoing, the this AD, contact General Electric Company, published in paragraph 6005, of FAA Federal Aviation Administration GE-Aviation, Room 285, 1 Neumann Way, Order 7400.9U dated August 18, 2010, amends 14 CFR Part 71 as follows: Cincinnati, OH 45215, phone: 513–552–3272; and effective September 15, 2010, which fax: 513–552–3329; e-mail: [email protected]. is incorporated by reference in 14 CFR PART 71—DESIGNATION OF CLASS A, For information on the availability of this B, C, D AND E AIRSPACE AREAS; AIR material at the FAA, call 781–238–7125. Part 71.1. The Class E airspace designations listed in this document TRAFFIC SERVICE ROUTES; AND Material Incorporated by Reference will be published subsequently in that REPORTING POINTS (j) None. Order. ■ Issued in Burlington, Massachusetts, on The Rule 1. The authority citation for 14 CFR July 7, 2011. Part 71 continues to read as follows: Peter A. White, This action amends Title 14 Code of Federal Regulations (14 CFR) part 71 by Authority: 49 U.S.C. 106(g), 40103, 40113, Acting Manager, Engine & Propeller 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959– Directorate, Aircraft Certification Service. establishing Class E airspace extending upward from 700 feet above the surface 1963 Comp., p. 389. [FR Doc. 2011–17621 Filed 7–13–11; 8:45 am] at Florence Municipal Airport, Florence, BILLING CODE 4910–13–P § 71.1 [Amended] OR, to accommodate IFR aircraft executing new RNAV (GPS) standard ■ 2. The incorporation by reference in 14 CFR Part 71.1 of the Federal Aviation DEPARTMENT OF TRANSPORTATION instrument approach procedures at the airport. This action is necessary for the Administration Order 7400.9U, Federal Aviation Administration safety and management of IFR Airspace Designations and Reporting operations. Points, dated August 18, 2010, and 14 CFR Part 71 The FAA has determined this effective September 15, 2010 is regulation only involves an established amended as follows: [Docket No. FAA–2010–0986; Airspace body of technical regulations for which Docket No. 10–ANM–13] Paragraph 6005 Class E airspace areas frequent and routine amendments are extending upward from 700 feet or more Establishment of Class E Airspace; necessary to keep them operationally above the surface of the earth. Florence, OR current. Therefore, this regulation: (1) Is not a ‘‘significant regulatory action’’ * * * * * AGENCY: Federal Aviation under Executive Order 12866; (2) is not ANM OR E5 Florence, OR [New] Administration (FAA), DOT. a ‘‘significant rule’’ under DOT Florence Municipal Airport, OR ACTION: Final rule. Regulatory Policies and Procedures (44 (Lat. 43°58′58″ N., long. 124°06′41″ W.) FR 11034; February 26, 1979); and (3) SUMMARY: This action establishes Class does not warrant preparation of a That airspace extending upward from 700 feet above the surface within 3-mile radius of E airspace at Florence, OR, to regulatory evaluation as the anticipated Florence Municipal Airport. accommodate aircraft using a new Area impact is so minimal. Since this is a Navigation (RNAV) Global Positioning routine matter that will only affect air Issued in Seattle, Washington, on July 6, System (GPS) standard instrument traffic procedures and air navigation, it 2011. approach procedures at Florence is certified this rule, when promulgated, John Warner, Municipal Airport. This improves the will not have a significant economic safety and management of Instrument Manager, Operations Support Group, Western impact on a substantial number of small Service Center. Flight Rules (IFR) operations at the entities under the criteria of the [FR Doc. 2011–17541 Filed 7–13–11; 8:45 am] airport. Regulatory Flexibility Act. The FAA’s BILLING CODE 4910–13–P DATES: Effective date, 0901 UTC, authority to issue rules regarding October 20, 2011. The Director of the aviation safety is found in Title 49 of the Federal Register approves this U.S. Code. Subtitle 1, Section 106 incorporation by reference action under discusses the authority of the FAA

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COMMODITY FUTURES TRADING the Dodd-Frank Act, which provided CEA section 6(c)(3), the full text of COMMISSION the Commission with additional and which is provided in Section III below, broad authority to prohibit fraud and makes it unlawful to ‘‘manipulate or 17 CFR Part 180 manipulation. In the following attempt to manipulate the price of any RIN Number 3038–AD27 paragraphs, the Commission swap, or of any commodity in interstate summarizes Dodd-Frank Act section commerce, or for future delivery on or Prohibition on the Employment, or 753’s amendments to CEA section 6(c). subject to the rules of any registered Attempted Employment, of New section 6(c)(1), the full text of entity.’’ Final Rule 180.2 codifies Manipulative and Deceptive Devices which is provided in Section III below, section 6(c)(3). and Prohibition on Price Manipulation broadly prohibits the use or employment of, or an attempt to use or Section 753 of the Dodd-Frank Act AGENCY: Commodity Futures Trading employ, any ‘‘manipulative or deceptive also amends prior CEA section 6(c) to Commission. device or contrivance’’ in contravention provide, in cases of manipulation or attempted manipulation in violation of ACTION: Final rules. of such rules and regulations as the Commission ‘‘shall promulgate no later sections 6(c) or 9(a)(2), for a civil SUMMARY: The Commodity Futures than 1 year after the date of enactment’’ penalty of up to the greater of Trading Commission (‘‘CFTC’’ or of the Dodd-Frank Act. $1,000,000 or triple the monetary gain ‘‘Commission’’) is adopting final rules As discussed below, final Rule 180.1 to the person for each such violation; pursuant to section 753 of the Dodd- implements the provisions of CEA and restitution to customers of damages Frank Wall Street Reform and Consumer section 6(c)(1) by prohibiting, among proximately caused by violations of the Protection Act (‘‘Dodd-Frank Act’’), to other things, manipulative and person. For other violations, section implement amended subsections (c)(1) deceptive devices, i.e., fraud and fraud- 6(c)(10)(C) provides for a civil penalty of and (c)(3) of section 6 of the Commodity based manipulative devices and not more than an amount equal to the Exchange Act (‘‘CEA’’). These rules contrivances employed intentionally or greater of $140,000 or triple the broadly prohibit fraud and recklessly, regardless of whether the monetary gain for each such violation. conduct in question was intended to manipulation in connection with any Finally, section 753 of the Dodd- create or did create an artificial price. swap, or contract of sale of any Frank Act provides that the above- This final Rule will help promote the commodity in interstate commerce, or summarized amendments to CEA integrity of the markets, and protect contract for future delivery on or subject section 6(c) ‘‘shall take effect on the date to the rules of any registered entity. market participants. Section 6(c)(1)(A), a ‘‘Special on which the final rule promulgated by DATES: Effective Date: These final Rules the Commodity Futures Trading will become effective August 15, 2011. Provision for Manipulation by False Reporting,’’ extends the Commission’s Commission pursuant to this Act takes FOR FURTHER INFORMATION CONTACT: prohibition against unlawful effect.’’ The final Rules will take effect David Meister, Director, Division of manipulation to include ‘‘delivering, or 30 days after publication in the Federal Enforcement, 202–418–5624, or Mark D. causing to be delivered for transmission Register. Higgins, Counsel, Office of the General through the mails or interstate Counsel, 202–418–5864, II. The Rulemaking Proceeding Under commerce, by any means of CEA Section 6(c) [email protected], Commodity Futures communication whatsoever, a false or Trading Commission, Three Lafayette misleading or inaccurate report This rulemaking proceeding 2 began Centre, 1151 21st Street, NW., concerning crop or market information with the issuance of a Notice of Washington, DC 20581. or conditions that affect or tend to affect Proposed Rulemaking (‘‘NOPR’’) on SUPPLEMENTARY INFORMATION: the price of any commodity in interstate October 26, 2010, which was published I. Background commerce, knowing, or acting in in the Federal Register on November 3, reckless disregard of the fact that such 2010.3 Pursuant to CEA section 6(c),4 as On July 21, 2010, President Obama report is false, misleading or amended by section 753 of the Dodd- signed the Dodd-Frank Act into law. inaccurate.’’ 1 Importantly, section Frank Act, the Commission proposed to Title VII of the Dodd-Frank Act 6(c)(1)(C) provides a ‘‘Good Faith add a new Part 180 to Title 17 of the amended the CEA to establish a Mistakes’’ exception to this prohibition Code of Federal Regulations. In the comprehensive new regulatory such that ‘‘[m]istakenly transmitting, in NOPR, the Commission solicited framework for swaps and security-based good faith, false or misleading or comments on all aspects of proposed swaps. The legislation was enacted to inaccurate information to a price Part 180. Twenty-seven parties filed reduce risk, increase transparency, and reporting service would not be sufficient comments, representing a variety of promote market integrity within the to violate subsection (c)(1)(A).’’ interested parties, including a member financial system by, among other things: Section 6(c)(2) prohibits the making of of the United States Congress, a law (1) Providing for the registration and ‘‘any false or misleading statement of a professor, economists, industry comprehensive regulation of swap material fact to the Commission. * * *’’ members and trade associations, energy dealers and major swap participants; (2) A prohibition regarding false statements news and price reporting organizations, imposing clearing and trade execution to the Commission was previously designated contract markets requirements on standardized derivative included in section 6(c). Dodd-Frank products; (3) creating robust Act section 753 expands the prohibition 2 Rulemaking documents are available at: recordkeeping and real-time reporting against false statements made in (http://www.cftc.gov/LawRegulation/ regimes; and (4) enhancing the registration applications or reports filed DoddFrankAct/Rulemakings/23_DFManipulation/ Commission’s rulemaking and with the Commission to include any index.htm). enforcement authority with respect to, statement of material fact made to the 3 Prohibition of Market Manipulation, 75 FR among others, all registered entities and 67657 (Nov. 3, 2010). Commission in any context. 4 Section 753 of the Dodd-Frank Act directed the intermediaries. Commission to promulgate implementing rules and In the wake of the financial crisis of 1 Section 9(a)(2) of the CEA, 7 U.S.C. 13(a)(2), also regulations by not later than one year after the date 2008, Congress adopted section 753 of expressly prohibits false reporting. of enactment of the Dodd-Frank Act.

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(exchanges), a government-sponsored promulgate by not later than 1 year after the (a) To employ any device, scheme, or enterprise, and members of the public.5 date of enactment of the [Dodd-Frank Act], artifice to defraud, Upon careful review and provided no rule or regulation promulgated (b) To make any untrue statement of a consideration of the entire record in this by the Commission shall require any person material fact or to omit to state a material fact rulemaking and based on its extensive to disclose to another person nonpublic necessary in order to make the statements information that may be material to the made, in the light of the circumstances under market regulation experience, the market price, rate, or level of the commodity which they were made, not misleading, or Commission has determined that it is transaction, except as necessary to make any (c) To engage in any act, practice, or course appropriate and in the public interest to statement made to the other person in or in of business which operates or would operate adopt the final Rules, which among connection with the transaction not as a fraud or deceit upon any person, in other things, define for the public the misleading in any material respect. connection with the purchase or sale of any statutory prohibition under CEA section security.9 CEA section 6(c)(3), entitled ‘‘Other 6(c)(1) against using or employing ‘‘any Manipulation,’’ provides that: manipulative or deceptive device or Given the similarities between CEA contrivance’’ in connection with any [I]t shall be unlawful for any person, section 6(c)(1) and Exchange Act section swap, or a contract of sale of any directly or indirectly, to manipulate or 10(b), the Commission deems it commodity in interstate commerce, or attempt to manipulate the price of any swap, appropriate and in the public interest to for future delivery on or subject to the or of any commodity in interstate commerce, model final Rule 180.1 on SEC Rule or for future delivery on or subject to the 10b–5.10 To account for the differences rules of any registered entity. Consistent rules of any registered entity. with section 6(c)(1), the final Rule 180.1 between the securities markets and the prohibits, among other things, fraud and CEA section 6(c)(3) and the derivatives markets, the Commission fraud-based manipulative schemes, Commission’s general rulemaking will be guided, but not controlled, by employed intentionally or recklessly (as authority pursuant to CEA section 8a(5) the substantial body of judicial discussed below), regardless of whether provide the statutory basis for final Rule precedent applying the comparable 11 the conduct in question was intended to 180.2. language of SEC Rule 10b–5. Such or did create an artificial price. Final Commenters are overwhelmingly extensive judicial review serves as an Rules 180.1 and 180.2 will help to supportive of the Commission’s efforts important benefit to the Commission promote the integrity of the markets, to implement clear and fair rules and provides the public with increased and protect market participants. designed to protect market participants certainty because the terms of Exchange After carefully reviewing the entire and promote the integrity of the Act Section 10(b) and SEC Rule 10b–5 rulemaking record, the Commission markets. In the following sections, the have withstood challenges to their finds it unnecessary to change the Commission summarizes and responds constitutionality in both civil and wording of the proposed regulatory text, to the comments received in this criminal matters.12 except in one respect: Adding rulemaking. 9 17 CFR 240.10b–5. ‘‘inaccurate’’ to section 180.1(a)(4) IV. Discussion of CEA Section 6(c)(1) (‘‘* * * no violation of this subsection 10 See, e.g., Morissette v. United States, 342 U.S. and Final Rule 180.1 246, 263 (1952) (noting that where Congress shall exist where the person mistakenly borrows terms of art it ‘‘presumably knows and transmits, in good faith, false or A. Overview adopts the cluster of ideas that were attached to misleading or inaccurate information to The language of CEA section 6(c)(1), each borrowed word’’); Nat’l Treasury Employees a price reporting service.’’). This change Union v. Chertoff, 452 F.3d 839, 857 (DC Cir. 2006) particularly the operative phrase (stating that ‘‘[t]here is a presumption that Congress is necessary to ensure symmetry ‘‘manipulative or deceptive device or uses the same term consistently in different between final Rule 180.1 and CEA contrivance,’’ is virtually identical to statutes’’). section 6(c)(1)(C). However, based on the terms used in section 10(b) of the 11 Further, by modeling final Rule 180.1 on SEC the public comments, the Commission Rule 10b–5, the Commission takes an important Securities Exchange Act of 1934 step toward harmonization of regulation of the has determined to provide clarification 6 (‘‘Exchange Act’’). The Supreme Court commodities, commodities futures, swaps and and interpretive guidance in this has interpreted these words to ‘‘clearly securities markets given that new CEA section Preamble to final Rules 180.1 and 180.2. connot[e] intentional misconduct.’’ 7 6(c)(1) and Exchange Act Section 10(b) include The Commission’s statutory and legal The Court has also stated that the statute virtually identical prohibitions against ‘‘any basis for promulgating the final Rules, manipulative or deceptive device or contrivance.’’ was ‘‘designed as a catchall clause to 12 their purpose, and the Commission’s See, e.g., United States v. Persky, 520 F.2d 283, prevent fraudulent practices.’’ 8 287 (2d Cir. 1975) (rejecting criminal defendant’s responses to comments filed in this Based on the language in Exchange argument that Exchange Act section 10(b) and SEC rulemaking, are discussed below. Act section 10(b), the Securities and Rule 10b–5 are unconstitutionally vague); SEC v. Pirate Investor LLC, 580 F.3d 233, 254 (4th Cir. III. Statutory Basis for the Final Rules Exchange Commission (‘‘SEC’’) 2009) (upholding civil judgment and finding that CEA section 6(c)(1), entitled promulgated SEC Rule 10b–5, which ‘‘[a]ppellants’ reliance on any ambiguity in the makes it unlawful for any person: [section 10(b)] phrase ‘in connection with’ as a ‘‘Prohibition Against Manipulation,’’ is reason to employ the canon of constitutional the statutory basis for final Rule 180.1, avoidance fails in light of the statute’s purpose— and provides that: 6 15 U.S.C. 78j(b). Differences between the providing a flexible regime for addressing new, wording of Exchange Act Section 10(b) and CEA perhaps unforeseen, types of fraud’’), cert. denied, It shall be unlawful for any person, directly section 6(c)(1) include, but are not limited to, the 130 S. Ct. 3506, 2010 U.S. LEXIS 5345 (2010). The or indirectly, to use or employ, or attempt to express prohibition of the ‘‘attempt to use’’ any Federal Energy Regulatory Commission and the use or employ, in connection with any swap, ‘‘manipulative or deceptive device or contrivance’’ Federal Trade Commission have relied upon a or a contract of sale of any commodity in in CEA section 6(c)(1), and the absence of a statutory framework largely identical to Exchange interstate commerce, or for future delivery on ‘‘purchase or sale’’ requirement in CEA section Act section 10(b) when promulgating rules similar or subject to the rules of any registered entity, 6(c)(1). The Commission understands that under to SEC Rule 10b–5. In so doing, both agencies have SEC Rule 10b–5 a plaintiff is not required to prove stated their intent to be guided by securities law any manipulative or deceptive device or that money was actually invested in a specific contrivance, in contravention of such rules precedent, as appropriate to their unique regulatory security. See, e.g., SEC v. Zandford, 535 U.S. 813, missions. FERC, Prohibition of Energy Market and regulations as the Commission shall 819–21 (2002). Manipulation, 71 FR 4244, 4250 (Jan. 26, 2006) 7 Ernst & Ernst v. Hochfelder, 425 U.S. 185, 201 (FERC final anti-manipulation rule); FTC, 5 Attachment A contains a list of the 27 parties (1976). Prohibitions on Market Manipulation, 74 FR 40686, who submitted comments related to this 8 Chiarella v. United States, 445 U.S. 222, 226 40688–89 (Aug. 12, 2009) (FTC final anti- rulemaking. (1980), citing Hochfelder, 425 U.S. at 202, 206. manipulation rule).

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Final Rule 180.1 prohibits fraud and Better Markets, a non-profit public section 9(a)(2), and its anti-fraud fraud-based manipulations, and interest advocacy organization, states authority under CEA section 4b.22 The attempts: (1) By any person (2) acting that the proposed Rules are critical to Associations urge the Commission to intentionally or recklessly (3) in implementing the important expansion remove from all subparts of the connection with (4) any swap, or of the Commission’s enforcement proposed Rule language that prohibits contract of sale of any commodity in capability so that the transparent and an ‘‘attempt’’ to manipulate and to interstate commerce, or contract for reliable marketplace envisioned by the clarify that the requirements for future delivery on or subject to the rules Dodd-Frank Act can be realized.16 attempted manipulation remain of any registered entity (as defined in Similarly, the Council of Institutional consistent with current law under CEA the CEA). CEA section 6(c)(1) and final Investors (‘‘Council’’) supports proposed section 6(c).23 The Managed Funds Rule 180.1, like Exchange Act section Rule 180.1 and believes that it will help Association (‘‘MFA’’) believes that the 10(b) and SEC Rule 10b–5 upon which promote the integrity of the price Commission should interpret CEA they are modeled, focus on conduct discovery process and fair dealing section 6(c)(1) merely to clarify and involving manipulation or deception.13 between market participants. The refine the Commission’s authority over In the following paragraphs, the Council believes that, if accompanied by swaps, and not to create any new Commission addresses the comments robust enforcement, the proposed Rule antifraud authority or to create any new that pertain to final Rule 180.1 in the would promote investor confidence in duties or obligations.24 following categories: (1) Scope of the markets and contribute to the overall The American Petroleum Institute application of the final Rule; (2) safety and soundness of the financial (‘‘API’’) together with the National disclosure implications of the final system.17 Likewise, the Petroleum Petrochemical and Refiners Association Rule; (3) operation of the provision Marketers Association of America (‘‘NPRA’’), and the Coalition of Physical prohibiting material misstatements and (‘‘PMAA’’) believes that proposed Rules Energy Companies (‘‘COPE’’) state that omissions; (4) statutory exception for 180.1 and 180.2 will effectively Congress intended the scope of section good faith mistakes; (5) required implement the statutory and 753 of the Dodd-Frank Act to address scienter for a violation of the final Rule; Congressional directive to clearly only actual fraudulent manipulation of (6) scope of the phrase ‘‘in connection delineate and prevent impermissible the commodities markets.25 Absent a with’’; and (7) penalty, procedure, effect conduct by market participants.18 manipulative effect on the market, API on automated trading systems, and a University of Maryland School of Law and NPRA believe that there should be proposal to define manipulation.14 Professor Michael Greenberger no liability under proposed Rule (‘‘Professor Greenberger’’) believes that 180.1.26 Further, API and NPRA state B. The Scope of the Application of Final proposed Rule 180.1 reflects an effective that the Commission should require Rule 180.1 anti-manipulation rule mandated by proof that a party’s deceptive or 1. Comments section 753 of the Dodd-Frank Act. fraudulent conduct caused market The Commission received several Professor Greenberger further believes conditions to deviate materially from comments on the scope of the that the Commission correctly asserts the conditions that would have existed 27 application of proposed Rule 180.1. that proposed Rule 180.1 be given a but for that conduct. Similarly, the United States Senator Carl Levin broad, remedial reading similar to SEC Derivatives and Futures Law Committee 19 (‘‘Senator Levin’’), Chairman of the Rule 10b–5. of the Business Law Section of the Permanent Subcommittee on The CME Group, Inc. (‘‘CME Group’’) American Bar Association (‘‘ABA Investigations, Committee on Homeland and the Commodity Markets Council Derivatives Committee’’) states that any Security and Governmental Affairs, (‘‘CMC’’) believe that proposed Rules Commission rules under CEA section believes that the CFTC and SEC should 180.1 and 180.2 are vague and fail to 6(c)(1) should expressly target harmonize their regulatory structures for provide market participants with intentional or extremely reckless combating disruptive and manipulative sufficient notice of whether deceitful conduct specifically intended activities.15 contemplated trading practices run to cause artificial prices by corrupting or afoul of a prohibition.20 Further, CME disabling the integrity of market price- 13 Santa Fe Industries v. Green, 430 U.S. 462, Group and CMC believe that proposed setting processes and mechanisms 473–76 (1977); Dirks v. SEC, 463 U.S. 646, 667 n. Rule 180.1 is susceptible to rather than by a general anti-fraud rule 27 (1983) (concluding that ‘‘to constitute a violation constitutional challenge under the Due patterned on SEC Rule 10b–5.28 The of Rule 10b–5, there must be fraud’’); Chiarella v. Process Clause.21 United States, 445 U.S. 222, 234–35 (1980) (stating ABA Derivatives Committee believes that Exchange Act ‘‘section 10(b) is aptly described The Futures Industry Association that mere unfairness or impermissible as a catchall provision, but what it catches must be (‘‘FIA’’), International Swaps and overreaching without deception does fraud’’); Ernst & Ernst v. Hochfelder, 425 U.S. 185, Derivatives Association, Inc. (‘‘ISDA’’), not violate section 10(b) or SEC Rule 199 (1976) (rejecting argument for imposition of and the Securities Industry and 29 negligence standard that ‘‘simply ignore[d] the use 10b–5 thereunder. of the words ‘manipulative,’ ‘device,’ and Financial Markets Association ‘contrivance’—terms that make unmistakable a (‘‘SIFMA’’) (together, ‘‘the 22 Associations Comment Letter at page 9. congressional intent to proscribe a type of conduct Associations’’) believe that the 23 Associations at page 8. quite different from negligence. Use of the word Commission should clarify the scope of 24 MFA Comment Letter at pages 6–7. ‘manipulative’ is especially significant. It is and 25 was virtually a term of art when used in connection the proposed regulation, the API and NPRA Comment Letter at page 3; with securities markets. It connotes intentional or Commission’s existing anti- COPE Comment Letter at page 2. willful conduct designed to deceive or defraud manipulation authority under CEA 26 API and NPRA at pages 2, 9, and 24. investors by controlling or artificially affecting the 27 API and NPRA at page 10. price of securities’’) (internal citations omitted). 28 ABA Derivatives Committee Comment Letter at 16 Better Markets Comment Letter at page 1. 14 pages 5 and 11–13. According to the ABA The extent to which securities law precedent 17 should apply is an issue that commenters often Council Comment Letter at pages 1–2. Derivatives Committee, ‘‘[a] rule that does not 18 linked to more specific comments pertaining to the PMAA Comment Letter at page 1. require evidence of a specific intent to cause interpretation of the statute and proposed rule text. 19 Professor Greenberger Comment Letter at page artificial market prices as an element of a violation As such, the Commission considers commenters’ 2. would result in a dangerously vague rule * * * views about securities law precedent in the specific 20 CME Group Comment Letter at pages 2–3; CMC [which] could expose participants to the threat of contexts in which they arise. Comment Letter at page 2. arbitrary and unfair enforcement.’’ Id. at page 12. 15 Senator Levin Comment Letter at pages 3–4. 21 CME Group at page 3; CMC at page 2. 29 ABA Derivatives Committee at page 6.

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Freddie Mac recommends that the language from proposed Rules 180.1 and ‘‘in connection with’’ requirement is Commission strengthen the protection 180.2 that make it a violation to discussed in subsection G. below. And of customers by clarifying that CEA ‘‘attempt’’ to engage in manipulation.33 although CEA section 6(c)(1) and final section 6(c), as amended by section 753 The Commission is controlled by the Rule 180.1 give the Commission broad of the Dodd-Frank Act and implemented language of CEA section 6(c)(1), which enforcement authority to prohibit fraud by proposed Rule 180.1, expressly specifically directs the Commission to and manipulation in connection with a prohibits ‘‘front running’’ and similar prohibit the ‘‘attempt[ed]’’ use or contract of sale for any commodity in misuse of customer information by swap employment of any manipulative or interstate commerce, the Commission dealers as a form of fraud-based deceptive devices or contrivances.34 expects to exercise its authority under manipulation.30 The Commission declines to adopt the 6(c)(1) to cover transactions related to the futures or swaps markets, or prices 2. Commission Determination request of certain commenters to interpret CEA section 6(c)(1) as merely of commodities in interstate commerce, Upon review of the entire rulemaking extending the Commission’s existing or where the fraud or manipulation has record, the Commission determines that anti-fraud and anti-manipulation the potential to affect cash commodity, final Rule 180.1 is in the public interest authority to cover swaps. Such an futures, or swaps markets or and provides fair, reasonable, and interpretation would be inconsistent participants in these markets.37 This adequate notice of the prohibited with the language of CEA section application of the final Rule respects the conduct. With respect to comments 6(c)(1), as amended by section 753 of jurisdiction that Congress conferred claiming that final Rule 180.1 is the Dodd-Frank Act, under which upon the Commission and fulfills its susceptible to a due process Congress granted the Commission broad core mission and the purposes of the constitutional challenge because it new authority to prohibit ‘‘any Act to protect market participants and purportedly does not give market manipulative or deceptive device or promote market integrity. participants fair notice of the prohibited contrivance’’ in connection with any The foregoing should not be conduct, the Commission notes that swap, or a contract of sale of any interpreted, however, to mean that a final Rule 180.1 is modeled on SEC Rule commodity in interstate commerce, or violation of final Rule 180.1 necessarily 10b–5, which has been subjected to for future delivery on or subject to the requires proof of a market or price extensive judicial review and has rules of any registered entity. effect, as some commenters’ 38 withstood constitutional challenges, The Commission intends to interpret recommend. It does not. A market or including those based on a fair notice and apply CEA section 6(c)(1) and final price effect may well be indicia of the argument.31 Rule 180.1 ‘‘not technically and use or employment of a manipulative or In response to comments requesting restrictively, but flexibly to effectuate its deceptive device or contrivance; clarification regarding the relationship 35 nonetheless, a violation of final Rule among final Rule 180.1 and existing remedial purposes.’’ Comments that the Commission’s use of the word 180.1 may exist in the absence of any CEA sections 4b and 9(a)(2), the 39 ‘‘commodity’’ in proposed Rule 180.1 market or price effect. Commission notes that section 753(a) of In response to comments requesting the Dodd-Frank Act makes clear that ‘‘indicates that the rule will apply to virtually every commercial transaction that ‘‘front-running’’ and similar misuse nothing in new CEA section 6(c)(1) 36 of customer information be considered a ‘‘shall affect, or be construed to affect, in the economy’’ are misplaced. The final Rule requires a fraud or form of fraud-based manipulation under the applicability of section 9(a)(2).’’ final Rule 180.1, the Commission Likewise, the Commission finds nothing manipulation, or attempted fraud or manipulation, and that the fraud or declines to adopt any per se rule in this in CEA section 6(c)(1) or final Rule regard, but clarifies that final Rule 180.1 180.1 that affects, or should be manipulation or attempted fraud or manipulation, be ‘‘in connection with’’ reaches all manner of fraud and construed to affect, the applicability of manipulation within the scope of the CEA section 4b.32 Section 6(c)(1) and any swap, or contract of sale of any commodity in interstate commerce, or statute it implements, CEA section final Rule 180.1 augment the 6(c)(1). Commission’s existing authority to contract for future delivery on or subject prohibit fraud and manipulation. to the rules of any registered entity. The C. The Disclosure Implications of Final The Commission declines to adopt the Rule 180.1 request of one commenter to remove 33 Associations at page 8. 34 The Commission understands that courts 1. Comments interpreting the statutory phrase ‘‘any manipulative 30 Some commenters express concern Freddie Mac Comment Letter at pages 1–5. or deceptive device’’ as it is used in Section 10(b) 31 The fair notice argument has been repeatedly of the Exchange Act have deemed it broad enough regarding whether proposed Rule 180.1 rejected in the SEC Rule 10b–5 context in a wide to encompass an attempt. See, e.g., SEC v. Martino, variety of fact patterns. See, e.g., United States v. 255 F. Supp. 2d 268, 287 (S.D.N.Y. 2003) (‘‘[A]n 37 By way of non-exclusive example, if an entity Carpenter, 791 F.2d 1024 (2d Cir. 1986), aff’g in attempted manipulation is as actionable as a employed a deceptive device to sell precious metals part and rev’g in part United States v. Winans, 612 successful one’’). to customers as a way for the customers to speculate F. Supp. 827, 848 (S.D.N.Y. 1985); United States v. 35 on the value of such commodities, or if an entity Newman, 664 F.2d 12, 18–19 (2d Cir. 1981), aff’d See, e.g., Zandford, 535 U.S. at 819 (where a employed a deceptive device to sell an agricultural after remand, 722 F.2d 729 (2d Cir.), cert. denied, statute has a remedial purpose such as the commodity to persons seeking to hedge price risk 464 U.S. 863 (1983); United States v. Chiarella, 588 prevention of fraud, the statute should be construed in that commodity, depending on the facts and F.2d 1358, 1369 (2d Cir. 1978); United States v. ‘‘not technically and restrictively, but flexibly to Brown, 555 F.2d 336, 339–40 (2d Cir. 1977); United effectuate its remedial purposes’’) (internal circumstances, the Commission would exercise its States v. Persky, 520 F.2d 283, 286–88 (2d Cir. quotation marks and citations omitted). See also authority against the entity under Section 6(c)(1) 1975); SEC v. Shapiro, 494 F.2d 1301, 1308 (2d Cir. R&W Technical Servs., Ltd. v. CFTC, 205 F.3d 165, and final Rule 180.1. 1974). 173 (5th Cir. 2000) (In 1974, Congress gave the 38 In interpreting Exchange Act section 10(b) and 32 Section 4b of the CEA, 7 U.S.C. 6b, prohibits, CFTC ‘‘even greater enforcement powers in part SEC Rule 10b–5, the Supreme Court has recognized for example, a person from defrauding another because of the fear that unscrupulous individuals that the interest in preserving the integrity of the person in connection with the making of were encouraging amateurs to trade in the securities markets was one of the purposes commodity futures contracts for or on behalf of that commodities markets through fraudulent animating Exchange Act section 10(b), but rejected other person. Clayton Brokerage Co. v. CFTC, 794 advertising. Remedial statutes are to be construed the notion that section 10(b) is limited to serving F.2d 573, 578 (11th Cir. 1986). Thus, a broker’s liberally, and in an era of increasing individual that objective alone. See Superintendent of Ins. of misrepresentations to his customer about risk may participation in commodities markets, the need for N.Y. v. Bankers Life & Casualty Co., 404 U.S. 6, 11– subject the broker to liability under CEA section 4b. such protection has not lessened’’). 13 (1971). Id. 36 API and NPRA at page 3. 39 Id.

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would impose new disclosure participant realizes a statement was advancing its distinct regulatory obligations on commodities market incorrect when the statement was responsibilities in ensuring a participants.40 According to the made.47 transparent marketplace free from Associations, MFA, CME Group, CMC, The Associations seek clarification manipulation.53 PMAA believes that COPE, and the Working Group of that proposed Rule 180.1 will not proposed Rule 180.1 will effectively Commercial Energy Firms (‘‘CEF’’), impede the ability of market implement the statutory and futures, options, swaps, and physical participants to take positions and trade Congressional directive to clearly commodity markets are different from on the basis of nonpublic information delineate and prevent impermissible securities markets, which have that they obtain legitimately (i.e., not conduct by market participants.54 extensive disclosure obligations, and through the breach of a pre-existing nothing in the CEA mandates disclosure duty to keep such information 2. Commission Determination of market conditions or facts pertaining confidential or through another party’s As a general matter, the Commission 41 48 to the markets for commodities. similar breach of a pre-existing duty). does not believe that final Rule 180.1, or The Associations, CEF, and MFA state CME Group further states that the the statute it implements, are that proposed Rule 180.1 should not Commission should not adopt a problematic or will create uncertainty as impose any new duties of disclosure, ‘‘misappropriation’’ theory of ‘‘insider to the existence of disclosure obligations inquiry or diligence between two trading’’—that is, where one when applied to the markets the sophisticated parties to a bilateral misappropriates confidential Commission regulates. This is not to say transaction.42 Likewise, the ABA information for securities trading that commenters did not raise valid Derivatives Committee believes the purposes, in breach of a duty owed to concerns about how securities law Commission should make clear that the the source of the information.49 The anti-manipulation rule under section precedent will be applied in the ABA Derivatives Committee commodities markets with respect to 6(c)(l) does not create any new duties of recommends the Commission make inquiry, diligence or disclosure to disclosure obligations. The Commission clear that securities law doctrines such believes that Congress addressed these parties to futures, options, swaps or as the prohibition on insider trading and cash commodity transactions.43 The concerns, however, by enacting CEA the ‘‘fraud-on-the-market’’ theory do not section 6(c)(1), which provides that ‘‘no ABA Derivatives Committee, the apply under the final Rule.50 Associations, and MFA urge the rule or regulation promulgated by the The West Virginia Oil Marketers & Commission shall require any person to Commission to make it explicit that any Grocers Association (‘‘OMEGA’’) states final Rule will be violated only if a party disclose to another person nonpublic that trading based on inside information information that may be material to the violates a pre-existing duty arising 51 should be prohibited. market price, rate, or level of the under contract, common law, or some Responding to other commenters that commodity transaction, except as other non-CEA source.44 the CFTC should not incorporate the necessary to make any statement made API and NPRA urge the Commission standards and case law under SEC Rule to the other person in or in connection to state explicitly that silence, pure 10b–5, Professor Greenberger states that with the transaction not misleading in omissions (omissions that do not relate the anti-manipulation rules and any material respect.’’ To be clear, the to explicit representations), and ‘‘no regulations are not bound by the legal Commission is not, by this rulemaking, comment’’ statements are not frameworks of the two markets. imposing any new affirmative duties of actionable. They also contend that Professor Greenberger states that the inquiry, diligence, or disclosure.55 ‘‘[t]here should be no affirmative duty to focal point of these anti-manipulation convey information to a counterparty in rules is to maintain market integrity, Further, it is not a violation of final the nature of the reporting and which is a common goal shared by both Rule 180.1 to withhold information that information requirements as under the securities and futures markets.52 a market participant lawfully possesses 45 securities law.’’ Similarly, API and PMAA believes that the Commission, about market conditions. The failure to NPRA recommend that the Commission in relying on SEC Rule 10b–5, is disclose such market information prior confirm that there is no duty to update cognizant of and more than capable of to entering into a transaction, either in statements that were truthful at the time an anonymous market setting or in 46 that they were made. CME Group 47 CME Group at page 8. bilateral negotiations, will not, by itself, states that the duty to correct inaccurate 48 Associations at page 5. constitute a violation of final Rule statements should be limited to 49 CME Group at pages 4–5. 180.1. Therefore, the Commission circumstances where a futures market 50 ABA Derivatives Committee at pages 8–9 clarifies that silence, absent a pre- (stating that the fraud-on-the-market theory ‘‘establishes a rebuttable presumption in private existing duty to disclose, is not 40 See, e.g., Associations at pages 1–5; MFA at rights of action under Exchange Act Section 10(b) deceptive within the meaning of final pages 2–4; CME Group at pages 2–3; CMC at page and SEC Rule 10b-5 that in an efficient market for 56 2. The Associations assert, for example, that unlike Rule 180.1. Similarly, the Commission a security a plaintiff can be held to have relied on the securities antifraud laws and rules, which are interprets ‘‘no comment’’ statements as a defendant’s fraudulent misrepresentation or designed primarily for investor protection, the omission in connection with the purchase or sale antifraud provisions in the futures markets are of a security—even if the plaintiff was not aware of 53 PMAA at page 1. focused in large part, although not exclusively, on the misrepresentation or omission—by virtue of the 54 PMAA at page 2. protections against manipulation. Associations at plaintiff’s reliance on the fact that a security’s price 55 page 4. The derivatives markets are not, however, reflects the fraudulent misrepresentation and caveat emptor markets. The CEA has many 41 See, e.g., Associations at pages 1–5; MFA at omission’’) (citations omitted) (emphasis in provisions designed to protect market participants pages 2–5; CME Group at pages 2–3; CMC at page original). through disclosure requirements applicable to 2; COPE at page 3; CEF Comment Letter at pages 51 OMEGA Comment Letter at page 3; accord Mr. Commission registrants. See, e.g., 17 CFR part 155 3 and 8. Peter Carini Comment Letter at page 3; Pen Fern Oil (risk disclosure obligations); 17 CFR 4.20–27 (duties 42 Associations at page 4; CEF at page 8; MFA at Co., Inc. Comment Letter at page 3; Scullin Oil Co. and disclosure obligations on Commodity Pool pages 2 and 4. Comment Letter at page 3. Operators). Depending on the facts and 43 ABA Derivatives Committee at page 15. 52 Professor Greenberger at pages 2–4. Professor circumstances, violation of such duties could 44 ABA Derivatives Committee at page 15; Greenberger further states that the influx of capital constitute a violation of the final Rule. Associations at pages 4–5; MFA at pages 4–5. from retail investors to the commodity markets 56 Cf. Basic Inc. v. Levinson, 485 U.S. 224, 239 n. 45 API and NPRA at page 19. through Exchange Traded Funds has changed the 17 (1988) (‘‘Silence, absent a duty to disclose, is not 46 API and NPRA at page 24. dynamics of the futures markets. Id. misleading under [SEC] Rule 10b–5’’).

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‘‘generally the functional equivalent of market’’ theory includes a presumption 2. Commission Determination 57 silence.’’ of reliance, which is a required element The Commission declines to adopt The Commission received comments in private rights of action arising under comments recommending deletion of regarding hedging or speculating (i.e., SEC Rule 10b–5. Unlike a private the phrase ‘‘or attempt to make’’ in final trading) on the basis of material litigant, however, the government is not Rule subsection 180.1(a)(2). This phrase 58 nonpublic information. These required to prove reliance in an captures situations where a person comments use the label ‘‘insider enforcement action under SEC Rule attempts to employ a manipulative trading,’’ which can mean different 10b–5 just as it is not required to device or artifice to defraud. For things in different contexts. The demonstrate harm to investors.62 example, when a supervisor attempts to Commission recognizes that unlike Consistent with judicial interpretations have a subordinate make a fraudulent securities markets, derivatives markets of Exchange Act section 10(b) and SEC material misstatement or omission but have long operated in a way that allows Rule 10b–5, the Commission does not that subordinate rebuffs the supervisor, for market participants to trade on the interpret the final Rule as requiring a the phrase ‘‘or attempt to make’’ would basis of lawfully obtained material showing of reliance or harm to market operate to reach the supervisor’s nonpublic information. This final Rule participants in a government action attempted fraud. does not prohibit trading on the basis of brought under CEA section 6(c)(1) and The Commission declines to modify material nonpublic information except final Rule 180.1. At the same time, we the proposed Rule in response to as provided in the following paragraph decline to opine on the required comments requesting that only or otherwise prohibited by law.59 elements of a private right of action statements and acts pertaining to Further, the Commission reiterates that under CEA section 6(c)(1) and final Rule ‘‘transactions’’ in futures, swaps, or the final Rule does not create an 180.1 as it is beyond the purview of this commodities markets underlying futures affirmative duty of disclosure (except, as rulemaking. or swaps may give rise to liability under provided by section 6(c)(1), ‘‘as 67 D. The Operation of the Provision proposed Rule 180.1. Rather, CEA necessary to make any statement made Prohibiting Material Misstatements and section 6(c)(1) prohibits manipulative or to the other person in or in connection Omissions deceptive devices or contrivances in with the transaction not misleading in connection with any swap, or a contract any material respect’’). 1. Comments of sale of any commodity in interstate Depending on the facts and commerce, or for future delivery on or COPE states that inclusion of the circumstances, a person who engages in subject to the rules of any registered words ‘‘attempt to make’’ any untrue or deceptive or manipulative conduct in entity.68 The Commission also declines misleading statement of a material fact connection with any swap, or contract to make modifications in response to in proposed Rule 180.1(a)(2) is vague of sale of any commodity in interstate comments recommending that the and confusing. COPE requests that the commerce, or contract for future Commission exercise its discretion to Commission clarify proposed Rule delivery on or subject to the rules of any exclude ‘‘partial omissions’’ from the 180.1(a)(2) to state that the proscribed registered entity, for example by trading final Rule.69 Fraud-by-partial-omission acts must be done with the intent to on the basis of material nonpublic or half-truths could violate final Rule deceive, manipulate, or defraud.63 information in breach of a pre-existing 180.1 if the facts and circumstances of duty (established by another law or rule, API and NPRA believe that the a particular case so warrant. Finally, the or agreement, understanding, or some Commission should clarify that only Commission declines to impose any other source), or by trading on the basis statements and acts pertaining to restriction on final Rule 180.1(a)(2) to of material nonpublic information that transactions in futures, swaps, or misstatements or omissions that distort was obtained through fraud or commodities markets underlying futures or, in the case of an attempted violation deception, may be in violation of final or swaps may give rise to liability under of 180.1(a)(2), are likely to distort Rule 180.1. The Commission believes proposed Rule 180.1.64 API and NPRA market conditions. Such a restriction that this application of the final Rule also believe that the Commission should would be tantamount to requiring a would be consistent with our exercise its discretion to exclude price or market effect for a violation of responsibility to protect market ‘‘partial omissions’’ from any final final Rule 180.1. As stated above, the participants and promote market Rule.65 Commission rejects any such integrity and with our statement in the Mr. Chris Barnard (‘‘Barnard’’) requirement for a violation of final Rule NOPR that section 6(c)(1) is a broad believes the proposed rules should 180.1 because the statute it implements, catch-all provision, reaching any apply to both positive misconduct and CEA section 6(c)(1), imposes no such manipulative or deceptive device or misconduct by omission given the requirement. contrivance.’’ 60 ongoing nature of the rights and The Commission declines to adopt E. The Statutory Exception for Good obligations that may be created in a Faith Mistakes comments recommending outright swap agreement.66 rejection of the potential application of 1. Comments the ‘‘fraud-on-the-market’’ theory under LLC v. Scientific-Atlanta, Inc., 552 U.S. 148, 171 When considering the application of final Rule 180.1.61 The ‘‘fraud-on-the- (2008). final Rule 180.1(a)(2), several 62 See, e.g., Berko v. SEC, 316 F.2d 137, 143 (2d 57 Id. (internal quotation marks and citation Cir. 1963) (finding reliance and injury to private commenters asked the Commission to omitted). shareholders ‘‘legally irrelevant’’ to the SEC’s extend CEA section 6(c)(1)(C)’s 58 See, e.g., Associations at page 5; MFA at page Exchange Act section 10(b) and SEC Rule 10b–5 provision for ‘‘Good Faith Mistakes’’ in 5. claim); see also United States v. Haddy, 134 F.3d the mistaken transmission of ‘‘false or 59 See, e.g., Dodd-Frank Act section 746, 542 (3d Cir. 1998) (concluding that securities laws did not require proof of reliance in an Exchange Act misleading or inaccurate information to amending CEA section 4c(a) (7 U.S.C. 6c(a)). a price reporting service’’ to other 60 75 FR at 67658. section 10(b) action brought by government). 63 61 In the securities context, ‘‘the ‘fraud-on-the- COPE at page 5. market’ presumption helps investors who cannot 64 API and NPRA at page 11. 67 API and NPRA at page 11. demonstrate that they, themselves, relied on fraud 65 API and NPRA at page 23. 68 See discussion in subsection G below. that reached the market.’’ Stoneridge In v. Partners, 66 Barnard Comment Letter at page 2. 69 API and NPRA at page 23.

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violations under CEA section 6(c)(1) and the statute supports a specific intent manipulation from ‘‘knowingly’’ to proposed Rule 180.1. API and NPRA standard.74 In the alternative, API and ‘‘reckless.’’ 83 Professor Greenberger request that the good faith exception be NPRA, CMC, Edison Electric Institute states that CEA section 6(c)(1) was expanded to cover ‘‘all public (‘‘EEI’’), MFA, and the Associations designed to empower the Commission statements or reports by a market propose a standard of ‘‘extreme with ‘‘the same anti-manipulation participant or other communications recklessness.’’ 75 Additionally, standard employed by the [SEC] for covered by the proposed rule.’’ 70 Platts commenter COPE states that the more than 75 years, which has been seeks extension of CEA section Commission should make clear that the upheld and defined in many court 6(c)(1)(C)’s good faith mistakes type of recklessness contemplated is not cases, including the Supreme Court.’’ 84 exception to proposed Rules 180.1 and recklessness in a tort sense, but rather The Air Transport Association 180.2, and Argus Media, Inc. (‘‘Argus’’) a business activity that diverges so (‘‘ATA’’) believes that the scienter asks the Commission to extend CEA greatly from rational market behavior as standard should enable the Commission section 6(c)(1)(C) to CEA section to indicate a fraudulent intent.76 to police and punish a broader array of 9(a)(2).71 The ABA Derivatives Committee potentially manipulative conduct than requests that in cases alleging is reachable under the CEA section 2. Commission Determination manipulation under final Rule 180.1, 9(a)(2) anti-manipulation provision.85 In crafting CEA section 6(c)(1)(C), the Commission must show a specific 2. Commission Determination Congress could have extended the intent to cause an artificial price to exception for good faith mistakes to all satisfy the scienter requirement.77 Upon consideration of all the of CEA sections 6(c) and 9(a)(2) but did CEF requests that if a recklessness comments in this rulemaking record, the not do so. Following the plain text of standard is adopted, it should not Commission clarifies that a showing of CEA section 6(c)(1)(C), the Commission extend to violations arising under CEA recklessness is, at a minimum, limited the good faith exception in final section 9(a)(2).78 In addition, CEF necessary to prove the scienter element Rule 180.1 to the mistaken transmission suggests that the Commission confirm of final Rule 180.1.86 Consistent with of false or misleading or inaccurate that it will not adopt a scienter long-standing precedent under the information to a price reporting service. requirement ‘‘that creates an implied commodities and securities laws, the The Commission also makes clear that presumption that sophisticated traders Commission defines recklessness as an the scienter requirement of final Rule understand and are aware of the effects act or omission that ‘‘departs so far from 180.1, final Rule 180.2, and CEA section of their actions taken in the normal the standards of ordinary care that it is 9(a)(2) functions to ensure that good- course of business on other commodity very difficult to believe the actor was faith mistakes or negligence will not or securities markets.’’ 79 not aware of what he or she was constitute a violation of the final Rules PMAA supports and encourages the doing.’’ 87 Proof of knowledge, however, under any circumstance. Thus, a person Commission to adopt ‘‘recklessness’’ as is not required.88 Certain commenter lacking the requisite scienter cannot be the level of scienter, particularly when requests for a scienter standard of found to have engaged in a evaluating issues relating to algorithmic ‘‘specific intent’’ would unduly limit manipulative or deceptive device or market manipulation.80 According to the scope of final Rule 180.1. Likewise, contrivance within the meaning of CEA PMAA, the Commission’s adoption of a section 6(c)(1). ‘‘recklessness’’ standard in CEA section 83 Professor Greenberger at page 2. 4c(a)(7) and proposed Rules 180.1 and 84 Professor Greenberger at page 2 (internal F. The Required Scienter for a Violation 180.2 should impose enhanced duties of quotation marks and citation omitted). Professor of Final Rule 180.1 Greenberger states that the Commission correctly diligence on those using or employing proposes that judicial precedent interpreting and 1. Comments automated trading systems.81 applying Exchange Act Section 10(b) and SEC Rule Mr. Clarence Townsend 10b–5 in the context of the securities markets Several commenters asked the (‘‘Townsend’’) believes the standard of should guide application of the scienter standard Commission to clarify the standard of relevant to proposed Rule 180.1 given that proposed scienter should be strengthened to Rule 180.1 is modeled on SEC Rule 10b–5. Id. In scienter under proposed Rule 180.1. 82 ‘‘reckless manipulation.’’ Professor Greenberger’s view, such judicial Senator Levin recommends that the Professor Greenberger states that precedent ‘‘will provide regulatory certainty and Commission shift the burden of proof section 6(c)(1) lowers the standard of will not disrupt the market function.’’ Id. with respect to intent to market 85 ATA Comment Letter at page 4. 86 participants, which would require them 74 ABA Derivatives Committee at pages 11–13; See, e.g., SEC v. U.S. Envtl., Inc., 155 F.3d 107, to show that their conduct was not CEF at page 5; MFA at pages 6–7; API and NPRA 111 (2d Cir. 1998) (finding allegation of reckless 72 at pages 12–16. API and NPRA also believe that a participation in a market manipulation sufficient to manipulative. state a claim of violation of Exchange Act section API and NPRA state that the recklessness standard may be appropriate in the highly regulated securities context with its 10(b)). Commission should clarify that scienter fiduciary duties and strict disclosure requirements, 87 Drexel Burnham Lambert Inc. v. CFTC, 850 may not be premised on the collective but a recklessness standard in this context would F.2d 742, 748 (DC Cir. 1988); see also Sundstrand knowledge of an entire company, but increase the costs of complying with a market Corp. v. Sun Chem. Corp., 553 F.2d 1033, 1045 (7th Cir. 1977), cert. denied, 434 U.S. 875 (1977) instead must be based on the knowledge manipulation rule and deter market participants from disclosing relevant information that helps (holding that recklessness under SEC Rule 10b–5 of the person participating in the markets to function more efficiently. means ‘‘an extreme departure from the standards of deceptive or fraudulent conduct.73 75 API and NPRA at page 17; CMC at page 2; EEI ordinary care, and which presents a danger of The ABA Derivatives Committee, Comment Letter at page 4; MFA at page 6; misleading buyers or sellers that is either known to CEF, MFA, API and NPRA disagree with Associations at pages 2 and 6–9. the defendant or is so obvious that the actor must 76 COPE at page 7. have been aware of it’’) (internal quotation marks the Commission’s proposal to adopt and citation omitted); SEC v. Platforms Wireless 77 ABA Derivatives Committee at pages 11–15. recklessness as the scienter requirement, Int’l Corp., 617 F.3d 1072, 1093–94 (9th Cir. 2010) 78 CEF at page 7. believing instead that the language of (‘‘scienter [under SEC Rule 10b–5] requires either 79 CEF at page 7. Rather, CEF believes that the deliberate recklessness or conscious recklessness, CFTC should evaluate alleged manipulation on a and [ ] it includes a subjective inquiry turning on 70 API and NPRA at page 25. case-by-case basis, taking into consideration the the defendant’s actual state of mind’’) (internal 71 Platts Comment Letter at pages 4–6; Argus facts and circumstances of each case. quotation marks and citations omitted). Comment Letter at pages 1 and 5–6. 80 PMAA at page 2. 88 See, e.g. Hollinger, v. Titan Capital Corp., 914 72 Senator Levin at page 4. 81 PMAA at page 2. F.2d 1564, 1568–96 (9th Cir. 1990) (en banc), cert. 73 API and NPRA at page 18. 82 Townsend Comment Letter at page 1. denied, 111 S. Ct. 1621 (1991).

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in response to comments calling for a The judicial decisions on the CME Group states that the bifurcated approach to scienter under applicability of the collective Commission should interpret the ‘‘in 6(c)(1) and final Rule 180.1, that is, knowledge theory under Exchange Act connection with’’ standard to require a specific intent to effect a price or price section 10(b) involve only private ‘‘nexus’’ between transactions (or offers trend that does not reflect legitimate securities litigation; the Commission is to transact) subject to CFTC jurisdiction forces of supply and demand for non- unaware of any judicial decision and prohibited fraudulent or deceptive fraud based manipulations, and applying the so-called collective conduct.94 CEF expressed concern that ‘‘extreme recklessness’’ in fraud-based knowledge theory under Exchange Act a broad interpretation of the phrase ‘‘in manipulations, the Commission states, section 10(b) where the government is connection with’’ may result in as it did in the NOPR, that it will be the plaintiff. Further, the Supreme Court conflicting or duplicative regulation guided, but not controlled by, judicial has not spoken to the issue under with other agencies, including the precedent interpreting and applying Exchange Act section 10(b) or any other Federal Energy Regulatory Commission scienter under Exchange Act section similar fraud-based prohibition. (‘‘FERC’’), SEC, Federal Trade 10(b) and SEC Rule 10b–5.89 At the Given that the collective knowledge Commission (‘‘FTC’’) and the Public same time, the Commission makes clear theory of alleging and proving scienter Utility Commission of Texas.95 that final Rule 180.1 does not reach against corporate defendants is Senator Levin believes the inadvertent mistakes or negligence. permissible in certain circuits, and Commission should employ its new Final Rule 180.1 will not affect market because the Commission finds the authority under CEA section 6(c) to participants engaged in legitimate policy rationale underlying the theory to prevent manipulative and disruptive market activity undertaken in good be in the public interest (i.e., that it activities even where the impacts may faith.90 Under final Rule 180.1, the creates incentives for the corporate only be felt in other markets—including entity to create and maintain effective plaintiff bears the burden of proving the markets regulated by the SEC.96 Senator internal communications and controls violation by a preponderance of the Levin expresses concern that, as 91 to prevent wrongful and harmful evidence. currently drafted, the proposed rules conduct), the Commission declines to With respect to comments requesting may not allow the CFTC to effectively adopt comments requesting that the clarification that scienter may not be regulate market activity that is intended Commission foreclose the collective premised on the collective knowledge of to or actually does artificially change knowledge theory in any case. Rather, an entire company, the Commission prices in another market or product.97 notes that there is disagreement among the Commission intends to follow the the circuits on the collective knowledge law of the various circuits and, in all 2. Commission Determination theory—that is, the courts disagree on cases, consider the totality of the facts and circumstances of a particular case Upon careful consideration of the whether the conduct of one corporate entire rulemaking record, the agent can be aggregated with another before deciding whether enforcement action is appropriate and in the public Commission finds it unnecessary to corporate agent’s state of mind in alter the text of final Rule 180.1. The 92 interest. holding a corporation liable for fraud. Commission interprets the words ‘‘in G. The Scope of the Phrase ‘‘In connection with’’ broadly, not 89 75 FR at 67659. Connection With’’ 90 Consistent with the Supreme Court’s technically or restrictively. Section interpretation of Exchange Act section 10(b) in 1. Comments 6(c)(1) and final Rule 180.1 reach all Ernst & Ernst v. Hochfelder, 425 U.S. 185, 206 manipulative or deceptive conduct in (1976), the Commission finds no indication in CEA In response to the NOPR, Better connection with the purchase, sale, section 6(c)(1) that Congress intended anyone to be Markets requested the Commission made liable for a violation of final Rule 180.1 unless solicitation, execution, pendency, or interpret the ‘‘in connection with’’ termination of any swap, or contract of he or she acted other than in good faith. language of Proposed Rule 180.1 91 See, e.g., Herman & Maclean v. Huddleston, sale of any commodity in interstate 459 U.S. 375, 387–90 (1983), citing SEC v. C. M. broadly to include not only the commerce, or contract for future Joiner Leasing Corp., 320 U.S. 344, 355 (1943). transaction giving rise to a swap delivery on or subject to the rules of any 92 Compare, e.g., United States v. Bank of New agreement, but also all of the continuing England, N.A., 821 F.2d 844, 856 (1st Cir. 1987) registered entity. Accordingly, final performance obligations under such Rule 180.1 covers conduct including, (holding in a corporate criminal liability action agreement.93 arising under the Currency Transaction Reporting but not limited to, all of the payment Act, that ‘‘[c]orporations compartmentalize and other obligations arising under a knowledge, subdividing the elements of specific officer’’); Southland Sec. Corp. v. INSpire Ins. duties and operations into smaller components. The Solutions Inc., 365 F.3d 353, 364–65 (5th Cir. 2004) swap. aggregate of those components constitutes the (quoting In re Apple Computer Inc., 243 F. Supp. While broad, the elasticity of the ‘‘in corporation’s knowledge of a particular operation 2d 1012, 1023 (N.D. Cal. 2002)) (‘‘ ‘A defendant connection with’’ language is not * * * [and the] corporation cannot plead innocence corporation is deemed to have the requisite scienter by asserting that the information obtained by for fraud only if the individual corporate officer limitless. In this regard, the Commission several employees was not acquired by any one making the statement has the requisite level of finds the Supreme Court’s decision in individual who then would have comprehended its scienter * * * at the time he or she makes the Zandford interpreting SEC Rule 10b–5’s full import’’); City of Monroe Employees Retirement statement’ * * * [T]he required state of mind must ‘‘in connection with’’ language System v. Bridgestone Corp., 387 F.3d 468, 690 (6th actually exist in the individual making the 98 Cir. 2004) (finding that plaintiffs adequately misrepresentation and may not simply be imputed particularly instructive. In its opinion, pleaded securities fraud claims against a corporate to that individual on general principles of agency’’), the Court gave the following example to defendant even though the complaint failed to cited with approval in Makor Issues & Rights, Ltd. v. Tellabs Inc., 513 F.3d 702, 708 (7th Cir. 2008); allege that the corporate agent whose scienter was based swap, and also targeted a specific United States v. Sci. Applications Int’l Corp., 626 imputed to the corporation ‘‘played any role in characteristic of swaps—the ongoing payments or F.3d 1257, 1274–75 (DC Cir. 2010) (holding a drafting, reviewing, or approving’’ the allegedly deliveries between the parties throughout the life of ‘‘collective knowledge’’ jury instruction false representations or ‘‘that he was, as a matter of the security-based swap in accordance with their inconsistent with the scienter requirement under practice, or by job description, typically involved in rights and obligations. the creation of such documents’’); with Nordstrom the False Claims Act and expressing doubt, in dicta, 94 CME Group at pages 9–10. Inc. v. Chubb & Son Inc., 54 F. 3d 1424, 1435 (9th regarding the use of ‘‘collective knowledge’’ to 95 Cir. 1995) (‘‘there is no case law supporting an establish corporate scienter in non-FCA cases). CEF at pages 3–4. independent ‘collective scienter’ theory,’’ i.e., the 93 Better Markets at page 2. Better Markets notes 96 Senator Levin at pages 5–6. theory ‘‘that a corporation’s scienter could be that the SEC employed the language in connection 97 Senator Levin at pages 5–6. different from that of an individual director or with the ‘‘offer, purchase or sale’’ of any security- 98 SEC v. Zandford, 535 U.S. 813 (2002).

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highlight the limits of SEC Rule 10b–5 effect (a proposal that API and NPRA behavior (non-economic, stand-alone applicability: submit would exceed the Commission’s transactions for the actor) injects false or authority), then the Commission should misleading information into a market If * * * a broker embezzles cash from a clarify that the enhanced sanctions in and consequently impairs its client’s account or takes advantage of the section 753 of the Dodd-Frank Act apply 109 fiduciary relationship to induce his client integrity. only to cases of manipulation or into a fraudulent real estate transaction, then 2. Commission Determination the fraud would not include the requisite attempted manipulation, and not to 102 connection to a purchase or sale of securities. every alleged violation of the rule. With respect to penalties, the Likewise if the broker told his client he was CEF seeks clarification that, in a case of Commission will follow CEA section stealing the client’s assets, that breach of a false reporting violation under CEA 6(c)(10)(C)(ii), which states that the fiduciary duty might be in connection with section 6(c)(1)(A), the Commission is Commission may assess ‘‘in any case of a sale of securities, but it would not involve not permitted to impose a penalty of an a deceptive device or fraud.99 manipulation or attempted amount equal to the greater of $1 manipulation in violation of [CEA The Commission intends to be guided million or treble damages pursuant to by this and other precedent interpreting CEA section 6(c)(10)(C)(ii).103 section 6(c)] or section 9(a)(2), a civil the words ‘‘in connection with’’ in the On the subject of implementation, API penalty of not more than an amount securities context.100 and NPRA ask that any final rule adopt equal to the greater of—(I) $1,000,000; As to comments regarding cross- a 180-day effective date to enable the or (II) triple the monetary gain to the market manipulation, the Commission industry to design and implement person for each such violation.’’ CEF’s intends to apply final Rule 180.1 to the comprehensive compliance request that the penalties for fullest extent allowed by law when programs.104 EEI and CEF recommend manipulation not apply to violations of determining whether conduct in one that the CFTC implement its new CEA section 6(c)(1)(A) is declined market is ‘‘in connection with’’ an authority in a cooperative manner with because such an outcome would conflict activity or product subject to the FERC and further recommend that it with the plain language of the statute. jurisdiction of the Commission. Further, hold a workshop, before the final Rule False or misleading or inaccurate where the Commission’s jurisdiction is is issued, on a variety of subjects related reporting is a type of unlawful 101 not exclusive, the Commission will, to interpretation and application of the manipulation specifically prohibited by to the extent practicable and consistent final Rule.105 Professor Greenberger CEA section 6(c)(1)(A). Accordingly, with its longstanding practice, believes that the Commission correctly where section 6(c)(1)(A) applies, the coordinate its enforcement efforts with states in the NOPR that market Commission may assess a penalty of an other federal or state law enforcement participants should already have amount equal to the greater of $1 authorities. constructed and implemented million or treble damages under CEA H. Penalty, Procedure, Effect on procedures to guard against their section 6(c)(10)(C)(ii) for each such Automated Trading Systems, and a employees’ and agents’ attempts at violation. Proposal To Define Manipulation manipulation. As such, Professor Greenberger believes that there should The Commission declines to adopt 1. Comments not be any additional cost to the existing comments recommending that it With regard to the penalty for market participants.106 conduct further technical conferences violating final Rule 180.1, API and On the issue of use or employment of on this rulemaking. The Commission NPRA state that if the Commission algorithmic or automated trading has provided notice and opportunity to chooses to promulgate a catch-all anti- systems, the PMAA requests that the comment and has met with numerous fraud rule without regard to whether the Commission establish standards groups to discuss this rulemaking.110 conduct had a manipulative purpose or governing the use of algorithmic trading Further, as noted above, there is technology by requiring internal extensive case law interpreting SEC 99 Id. at 825 n. 4. The holding of Zandford is controls such as logs and specific Rule 10b–5 upon which final Rule 180.1 consistent with judicial interpretations of the notification protocols, directed to the is modeled.111 phrase ‘‘in or in connection with’’ in the anti-fraud trading entity, when significant code provisions of the CEA, particularly section 4b(a), The Commission declines to adopt which prohibits any person from defrauding modification of its algorithm takes comments requesting heightened another person ‘‘in or in connection with’’ a place, including interpretation by the supervision of algorithmic and commodity futures transaction. For example, in R algorithm of digitized news and social automated trading systems as beyond & W Tech. Servs. Ltd., v. CFTC, 205 F.3d 165 (5th networking sources.107 Cir. 2000), cert. denied, 531 U.S. 817 (2000), the the scope of this rulemaking. Finally, the Brattle Group economists Fifth Circuit, in affirming the liability of a Nevertheless, as a general matter, a defendant for defrauding another person, refused to state that the Commission should adopt construe ‘‘in or in connection with’’ and 4b(a) its proposed definition of manipulation: supervisory failure may be one of the narrowly. Id. at 171–74. Rather, the court endorsed ‘‘Manipulation is engaging in facts and circumstances that the the Commission’s position that fraud in the sale of Commission considers in determining investment advice will be ‘‘in connection with’’ the anomalous price-making behavior sale of a commodities futures contract ‘‘if the fraud intended to alter a price in order to whether a violation of the final Rule relates to’’ the risk of trading and the primary profit in affected price-taking exists. purpose of the advice is to execute trades. Id. at transactions.’’ 108 The Brattle Group The Commission declines to adopt 172–73. As a general matter, the Supreme Court has stated that anti-fraud and anti-manipulation economists contend that manipulation comments proposing a new economics- provisions of the CEA are to be construed broadly. thus defined can be interpreted as a based definition of manipulation. See, e.g., CFTC v. Schor, 478 U.S. 833, 836 (1986) form of fraud whereby anomalous Instead, as stated above, all relevant (‘‘The CEA broadly prohibits fraudulent and manipulative conduct in connection with 102 commodity futures transactions.’’). API and NPRA at pages 10–11. 109 Brattle Group economists at pages 6–7. 103 100 Zandford, 535 U.S. 813 (2002); see also Merrill CEF at page 8. 110 A list of all external meetings held on Dodd- Lynch, Pierce, Fenner & Smith, Inc. v. Dabit, 547 104 API and NPRA at page 27. Frank Act section 753 is available at: http:// U.S. 71, 85 (2006) (holding that the ‘‘in connection 105 EEI at pages 2–4; CEF at pages 4–5. www.cftc.gov/LawRegulation/DoddFrankAct/ with’’ language of SEC Rule 10b–5 requires a nexus 106 Greenberger at page 4. ExternalMeetings/index.htm. between fraudulent conduct and a securities 107 PMAA at pages 1–2. 111 Similarly, the Commission has ample transaction). 108 Brattle Group economists Comment Letter at experience enforcing the predecessor provisions of 101 7 U.S.C. 2(a)(1)(A). page 6. final Rule 180.2.

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facts and circumstances must be the current rulemaking initiative and that legal interpretation.124 Professor considered in determining whether a issue a separate and more detailed Greenberger believes that Commission violation of final Rule 180.1 exists. NOPR for public comment.117 precedent supports the position that EEI requests that the Commission illegal effect on price can often be V. Discussion of CEA Section 6(c)(3) affirm in regulatory text that the scienter conclusively presumed from the nature and Final Rule 180.2 requirement for proposed Rule 180.2 is of the conduct in question and other The Commission proposed Rule 180.2 specific intent under the Commission’s factual circumstances not requiring under its general rulemaking authority, four-prong test.118 This four-part test is expert economic analysis.125 CEA section 8a(5) and its statutory described in subsection B below. ATA believes that the Commission authority to prohibit manipulation Likewise, the Associations believe that should consider whether its complete under new CEA section 6(c)(3). the Commission should not use CEA reliance on past precedent in Proposed Rule 180.2 mirrors the text of section 6(c)(3) as a mechanism to lower interpreting manipulation under new CEA section 6(c)(3), by stating that the specific intent standard traditionally proposed Rule 180.2 needlessly narrows ‘‘[i]t shall be unlawful for any person, required in manipulation cases. Instead, the potential reach of the amended anti- directly or indirectly, to manipulate or the Commission should issue clarifying manipulation provision of section attempt to manipulate the price of any guidance that conforms to the 6(c)(3), anchoring its interpretation to a swap, or of any commodity in interstate traditional framework of enforcement, past standard that has proven commerce, or for future delivery on or including the theory of liability set forth remarkably difficult to enforce.126 ATA subject to the rules of any registered in the Di Placido matter.119 notes that section 6(c)(3) as amended is entity.’’ In the NOPR, the Commission With respect to the scope of broader than both its prior version and proposed to continue ‘‘interpreting the application of proposed Rule 180.2, section 9(a)(2) by its inclusion of the prohibition on price manipulation and CMC recommends the Commission word ‘‘indirectly,’’ making it unlawful attempted price manipulation to clarify that CEA section 6(c)(3) does not to indirectly manipulate or attempt to encompass every effort to improperly confer any additional enforcement manipulate prices.127 influence the price of a swap, authority beyond the holding in the Di B. Commission Determination commodity, or commodity futures Placido matter.120 contract.’’ 112 CMC and MFA recommend that the In response to the comments received Commission make clear that proposed regarding this matter, the Commission A. Comments Rule 180.2 does not create a reiterates that, in applying final Rule The CME Group believes that the presumption that a price is artificial 180.2, it will be guided by the Commission should employ a bright- merely because one or more isolated traditional four-part test for line test under final Rule 180.2 that transactions are deemed uneconomic manipulation that has developed in case distinguishes prohibited manipulative without proof of a specific intent to law arising under 6(c) and 9(a)(2): (1) conduct from legitimate competitive move prices.121 The Associations and That the accused had the ability to trading activities. To that end, CME MFA believe that the Commission’s influence market prices; (2) that the Group urges the Commission to clarify statement in the NOPR ‘‘that prices [are] accused specifically intended to create what factors or types of activity the affected by a factor not consistent with or effect a price or price trend that does Commission considers to be ‘‘intended normal forces of supply and demand not reflect legitimate forces of supply 128 to interfere with the legitimate forces of will often follow inescapably from proof and demand; (3) that artificial prices supply and demand.’’ 113 The CME of the actions of the alleged existed; and (4) that the accused caused 129 Group believes the Commission’s manipulator’’ is an overly aggressive the artificial prices. statement in the NOPR that ‘‘an illegal reading of judicial precedent like Di The Commission reaffirms the effect on price can often be conclusively Placido. 122 MFA believes that the requirement under final Rule 180.2 that presumed from the nature of the Commission should not create a a person must act with the requisite conduct in question and other factual ‘‘conclusive presumption’’ that a price specific intent. In other words, circumstances not requiring expert is artificial without proof of specific recklessness will not suffice under final economic analysis’’ 114 is tantamount to intent to move prices.123 Rule 180.2 as it will under final Rule a ‘‘we-know-it-when-we-see-it- Professor Greenberger states that 180.1. The Commission finds this level approach’’ that impermissibly collapses although the Commission has already of intent necessary to ensure that the third and fourth elements of the interpreted the ‘‘prohibition on price legitimate conduct is not captured by traditional framework for manipulation manipulation and attempted price final Rule 180.2, which covers non- outlined in Cox.115 manipulation to encompass every effort fraud based manipulation. Given the COPE and EEI believe that the to influence the price of a swap, provisions in proposed Rule 180.1 are commodity, or commodity futures 124 Professor Greenberger at page 4. 125 the same as proposed Rule 180.2 and contract that is intended to interfere Professor Greenberger at page 4. 126 ATA at page 1. 116 thus the latter should be deleted. EEI with the legitimate forces of supply and 127 ATA at page 4. recommends that if the Commission demand in the marketplace,’’ it is 128 In re Indiana Farm Bureau Cooperative Assn., chooses not to delete proposed Rule important to reaffirm the relevance of Inc., [1982–1984 Transfer Binder] Comm. Fut. L. 180.2, it should carve this section out of Rep. (CCH) ¶ 21,796 (CFTC Dec. 17, 1982), citing 117 EEI at page 6. Volkart Bros., Inc. v. Freeman, 311 F.2d 52 (5th Cir. 1962); In re Hohenberg Bros. Co., [1975–1977 112 118 EEI at page 7. 75 FR at 67658. Transfer Binder] Comm. Fut. L. Rep. (CCH) ¶ 20,271 119 113 CME Group at page 11. CME Group states that Associations at page 10 referring to In re Di (CFTC Feb. 18, 1977). Placido, 2008 WL 4831204 (CFTC 2008), affd in the Commission also should clarify how to 129 In re Cox [1986–1987 Transfer Binder], Comm. pertinent part, Di Placido v. CFTC, 364 Fed Appx. determine whether a price has been affected by Fut. L. Rep. (CCH) ¶ 23,786, 1987 CFTC LEXIS 325, 657, 2009 WL 3326624 (2d Cir. 2009), cert. denied, illegitimate factors. CME Group at pages 11–12. at *9, 1987 WL 106879, at *3 (CFTC July 15, 1987). 114 130 S. Ct. 1883 (Mar. 22, 2010). 75 FR at 67660–61. In cases of attempted manipulation under section 120 115 In the Matter of Cox, [1986–1987 Transfer CMC at pages 2–3. 9(a)(2), the CFTC is required to show: (1) An intent Binder] Comm. Fut. L. Rep. (CCH) P 23,786 at 121 CMC at pages 2–3; MFA at pages 7–8. to affect the market price; and (2) some overt act 34,060–61 (CFTC July 15, 1987). 122 Associations at page 11; MFA at pages 7–8. in furtherance of that intent. See In re Hohenberg 116 COPE at pages 6–7; EEI at page 6. 123 MFA at pages 7–8. Bros. Co., ¶ 20,271 at 21,477.

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differences in scope of application V. Administrative Compliance and the economy, as it would potentially between the final Rules, the Cost-Benefit Considerations create inconsistencies with existing Commission declines requests to CEA section 15(a) 132 requires the statutory and common law standards consolidate them. Commission to consider the costs and and would place a tremendous burden The Commission declines requests to benefits of its actions before on the Commission’s resources.135 limit the application of final Rule 180.2 promulgating a regulation under the Further, API and NPRA comment that to the circumstances set forth in the CEA. By its terms, CEA section 15(a) the risk of inconsistent standards with commenters’ analysis of particular does not require the Commission to federal and state enforcement cases, including the Di Placido matter. quantify the costs and benefits of a rule authorities may exacerbate market Likewise, the Commission’s statement or to determine whether the benefits of participants’ regulatory and compliance in the NOPR that an artificial price may the regulation outweigh its costs; rather, risk and burden.136 API and NPRA also be ‘‘conclusively presumed’’ under it requires the Commission to believe that a recklessness standard certain facts and circumstances does not ‘‘consider’’ the costs and benefits of its under Section 753 would increase the mean that an artificial price may be actions. CEA section 15(a) further costs of complying with a market conclusively presumed in all cases. For specifies that the costs and benefits manipulation rule and deter market example, where, as in Di Placido, a shall be evaluated in light of five broad participants from engaging in legitimate trader violates bids and offers in order areas of market and public concern: (1) business activities and disclosing to influence the volume-weighted Protection of market participants and relevant information that helps markets average settlement price, an artificial the public; (2) efficiency, to function more efficiently as price price will be a ‘‘reasonably probable competitiveness and financial integrity discovery venues.137 API and NPRA consequence’’ of the trader’s intentional of futures markets; (3) price discovery; contend that where market participants misconduct. Moreover, the Commission (4) sound risk management practices; seek to comply with an omissions rule in the proposed Rule did not say that an and (5) other public interest by disclosing more information, artificial price will be conclusively considerations. The Commission may in companies will have an incentive to presumed in the absence of any its discretion give greater weight to any exercise great caution to ensure that no evidence, only that ‘‘extensive economic one of the five enumerated areas and affirmative statement may be analysis may not be necessary’’ to prove could in its discretion determine that, subjectively considered misleading that an artificial price existed.130 To be notwithstanding its costs, a particular through any omission.138 clear, in some cases the conclusion that rule is necessary or appropriate to MFA is concerned that ambiguity prices were affected by a factor not protect the public interest or to with respect to legal standards would consistent with normal forces of supply effectuate any of the provisions or increase transaction costs and chill and demand will require economic accomplish any of the purposes of the legitimate trading practices, in turn analysis, but in other cases, such a CEA. decreasing market depth and showing may, as the Commission stated In the NOPR, the Commission stated liquidity.139 The Associations state that in the proposed Rule, ‘‘follow that the proposed rules would enhance no new duties of disclosure, inquiry, or inescapably from proof of the actions of the authority of the Commission to diligence should be imposed between the alleged manipulator.’’ 131 This is ensure fair and equitable markets, and two sophisticated parties to a bilateral unsurprising given the fact and that market participants and the public transaction. Any such new duties may circumstance specific nature of will substantially benefit from such discourage legitimate trading activities, manipulation cases. Accordingly, the enhanced prevention and deterrence of increase transaction costs, and, as a Commission is not, as some commenters manipulation. With respect to costs, the result, reduce liquidity and market state, collapsing the third and fourth Commission also stated that participants depth.140 CME and Argus make similar elements of the traditional four-part test in the markets should already have comments as to the potential effects on for manipulation under section 6(c)(3) policies and procedures in place to markets as a whole, but do not express and final Rule 180.2. ensure that their employees, affiliates their concerns in terms of costs. The The Commission interprets the terms and agents will refrain from attempting CME comments that the Commission ‘‘directly or indirectly’’ as describing the to manipulate the markets. The must provide greater clarity as to the level of involvement necessary to Commission invited public comment on scope of prohibited conduct to maintain 133 establish a violation of final Rule 180.2. its cost-benefit considerations. and promote fair and efficient markets In this context, the Commission Below, we summarize and respond to and to protect market liquidity, price 134 interprets ‘‘indirectly’’ to include the those comments. Both in the discovery, and the risk management circumstance where a person uses a response to comments and in the functions of futures markets.141 Argus third party (e.g., an executing broker) to preamble, we address the areas of states that absent clarification from the execute trades designed to manipulate, market and public concern for Commission, the proposed rules may so it will be no defense that the person consideration of costs and benefits unnecessarily chill the voluntary did not himself execute the transaction. under CEA section 15(a). submission of transaction related data API and NPRA commented that the Notwithstanding the fact that final by market participants to compilers of potentially significant compliance costs price indices which, in turn, hinders the Rule 180.2 mirrors the text of CEA and legal uncertainty must be weighed section 6(c)(3), the Commission deems it Dodd-Frank Act’s goal of market against the limited benefits of the transparency.142 CEF comments that appropriate and in the public interest to proposed rules. Specifically, API and promulgate this rule and, in so doing, NPRA believe that it is problematic to provide the above clarifications to the 135 API and NPRA at pages 4 and 8. expand the scope of the Commission’s 136 manner in which the Commission API and NPRA at page 8. enforcement authority to cover routine 137 API and NPRA at pages 12–17. interprets and intends to apply final cash market transactions in all areas of 138 API and NPRA at page 22. Rule 180.2. 139 MFA at pages 3–4. 132 7 U.S.C. 19(a). 140 Associations at pages 1 and 4. 130 75 FR at 67660 (emphasis added). 133 75 FR at 67661. 141 CME at page 3. 131 75 FR at 67660. 134 See note 2 for access to public comment file. 142 Argus at page 1.

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market participants will face index options, and stock index of the Commission’s expanded substantially more uncertainty with exchange-traded funds (‘‘ETFs’’)) and authority. respect to their activities in energy are therefore subject to the SEC anti- In response to comments from CEF, markets and significant costs in manipulation rule. the Commission re-iterates that the final attempting to comply with multiple Many of these SEC-regulated Rules do not contain any requirement to regulatory regimes, thereby likely derivatives products exhibit high and create, retain, submit, or disclose any reducing participation in energy growing volumes, narrow bid-ask information. The final Rules impose no markets.143 CEF also comments that spreads, and high levels of market recordkeeping or related data retention jurisdictional overlap of agencies will depth. SEC-regulated stock index ETFs or disclosure requirements on any result in increased litigation costs, and stock-index options are person, including small businesses. depletion of scarce resources, and economically similar to CFTC-regulated Given that the final Rules impose no uncertainty for both the Commission stock index futures and options on those affirmative duties, it is unlikely that the and market participants.144 CEF states futures and, like these CFTC-regulated final Rules will impose any additional the false reporting provision will place derivatives, serve primarily as risk- ongoing costs beyond the existing costs a heavy burden on all market shifting instruments rather than associated with ensuring that behavior participants as they attempt to comply instruments for capital formation. Any and statements are not fraudulent or with the new reporting requirements argument that the SEC’s anti-fraud and manipulative. In that regard, the proposed by the Commission pursuant anti-manipulation regime has negatively Commission believes that it will not be to the Act.145 affected the growth of SEC-regulated necessary for firms that currently have In contrast, Barnard believes the derivatives lacks a basis in fact and adequate compliance programs to hire implementation costs of the proposed contradicts the generally accepted additional staff or significantly upgrade rules should be minimal.146 Professor purpose of the SEC’s anti-fraud and their systems to comply with the new Greenberger believes that the anti-manipulation rules, which is to Rules. Firms may incur some one-time Commission correctly states that market protect investors and to promote market costs such as costs associated with participants should already have integrity.148 Moreover, the FERC also training traders and staff in the new constructed and implemented promulgated a rule modeled on SEC Rules. procedures to guard against their Rule 10b–5 for FERC-jurisdictional The Commission believes the employees’ and agents’ attempts at markets in natural gas and electricity comments from API, NPRA, and CEF market manipulation. As such, Professor following the enactment of the Energy regarding increased costs pertaining to Greenberger believes that there should Policy Act of 2005. The FTC compliance, litigation, and uncertainty not be any additional costs to existing promulgated a comparable prohibition with respect to inconsistent standards 147 with other regulatory agencies are market participants. for petroleum markets. In the absence of misplaced. To the contrary, the The Commission has carefully any facts that anti-fraud and anti- Commission believes that market considered the concerns expressed by manipulation rules negatively affect participants and the public will benefit some of the commenters that the final markets, the Commission does not find from enhanced regulatory certainty that Rules could substantially increase costs such assertions persuasive. will arise from the Commission’s on market participants, reduce market As to the concerns of API and NPRA adoption of an anti-manipulation rule liquidity or chill legitimate market regarding increased costs from the that is more harmonized with existing activity. However, commenters provide Commission’s purported expansion of anti-manipulation rules of the SEC, no quantification of the potential costs its authority to cover a plethora of FERC, and FTC. or reliable data as a basis for routine cash market transactions in all conclusions that substantial costs will In the NOPR, the Commission stated, areas of the economy, with respect to and re-iterates here, that with respect to be incurred as a result of the final Rules. the scope of final Rule 180.1, as Furthermore, commenters have not benefits, the proposed rules would discussed above, the Commission enhance the authority of the shown how such rules have negatively intends to exercise its authority under impacted comparable markets that trade Commission to ensure fair and equitable 6(c)(1) to cover transactions related to markets. The Commission stated, inter comparable instruments and operate the futures or swaps markets, or prices under comparable anti-manipulation alia, that market participants and the of commodities in interstate commerce, public will benefit substantially from rules. or where the fraud or manipulation has Specifically, regarding the comments enhanced prevention and deterrence of the potential to affect cash commodities, manipulation. In light of public received by API, NPRA, MFA, CME, futures, or swaps markets or Argus, and the Associations as to how considerations under CEA section 15(a) participants in these markets. Thus, in promulgating this rule, the the new rules may directly increase concerns about purported increased transaction costs, reduce market Commission concludes that market costs are misplaced in that they rest on participants and the public will benefit liquidity and depth, and hinder risk an incorrect assumption about the scope management functions of markets substantially from increased protection through the prevention and deterrence subject to the Commission’s 148 See, e.g., Chemical Bank v. Arthur Andersen jurisdiction, the Commission notes that & Co., 726 F.2d 930, 943 (2d Cir. 1984) (‘‘The of fraud and manipulation. The final final Rule 180.1 is modeled on SEC Rule purpose of § 10(b) and Rule 10b–5 is to protect Rules will help ensure the efficiency, 10b–5. Many derivatives products in persons who are deceived in securities competitiveness, and financial integrity transactions—to make sure that buyers of securities of derivatives markets. Markets free securities markets are traded on national get what they think they are getting * * *.’’) securities exchanges under SEC (Friendly, J.); Laird v. Integrated Res., 897 F.2d 826, from fraud and manipulation function regulation (e.g., equity options, stock 831 at n.10 (5th Cir. 1990), quoting 3 Fletcher better as venues for price discovery and Cyclopedia of Corporations, section 900.3 (perm. risk management. ed. 1986) (‘‘The general purpose and intent of the 143 CEF at pages 2–3. broad anti-fraud provisions of Section 10(b) and A. Paperwork Reduction Act 144 CEF at page 4. Rule 10b–5 is to protect investors, to prevent 145 CEF at page 7. inequitable and unfair practices and to insure As discussed above, the provisions of 146 Barnard at page 2. fairness in securities transactions generally Commission Regulations Part 180 would 147 Professor Greenberger at page 4. * * *’’). not result in new recordkeeping

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requirements within the meaning of the § 180.1 Prohibition on the employment, or Issued in Washington, DC, on July 7, 2011, Paperwork Reduction Act of 1995. attempted employment, of manipulative and by the Commission. deceptive devices. David A. Stawick, B. Regulatory Flexibility Act Secretary of the Commission. 149 (a) It shall be unlawful for any person, The Regulatory Flexibility Act directly or indirectly, in connection requires that agencies consider whether Appendices to Prohibition on the with any swap, or contract of sale of any the rules they propose will have a Employment, or Attempted commodity in interstate commerce, or significant economic impact on a Employment, of Manipulative and substantial number of small entities contract for future delivery on or subject Deceptive Devices; Prohibition on Price and, if so, provide a regulatory to the rules of any registered entity, to Manipulation—Commission Voting flexibility analysis respecting such intentionally or recklessly: Summary and Statements of impact.150 The final Rules will not have (1) Use or employ, or attempt to use Commissioners a significant economic impact on a or employ, any manipulative device, Note: The following appendices will not substantial number of small entities. As scheme, or artifice to defraud; appear in the Code of Federal Regulations. explained above, legitimate market (2) Make, or attempt to make, any participants should already have untrue or misleading statement of a Appendix 1—Commission Voting procedures in place to prevent their material fact or to omit to state a Summary employees and agents from material fact necessary in order to make manipulating the markets. The On this matter, Chairman Gensler and the statements made not untrue or Chairman, on behalf of the Commission, Commissioners Dunn, Sommers, O’Malia and misleading; Chilton voted in the affirmative; no hereby certifies, pursuant to 5 U.S.C. Commissioner voted in the negative. 605(b), that the final Rules will not have (3) Engage, or attempt to engage, in a significant impact on a substantial any act, practice, or course of business, Appendix 2—Statement of Chairman number of small entities. which operates or would operate as a Gary Gensler fraud or deceit upon any person; or, C. Effective Date I support the final rulemaking to enhance (4) Deliver or cause to be delivered, or the Commission’s ability to protect against API and NPRA ask the Commission to attempt to deliver or cause to be manipulation. Effective regulation requires adopt a 180-day delay in the effective delivered, for transmission through the an effective enforcement program. The Dodd- date of the final Rules to enable the Frank Act enhances the Commission’s mails or interstate commerce, by any industry to design and implement enforcement authorities in the futures comprehensive compliance means of communication whatsoever, a markets and expands them to the swaps programs.151 The Commission declines false or misleading or inaccurate report markets. This rule implements new Dodd- this request. A 180-day delayed effective concerning crop or market information Frank authorities to police against fraud and date would unduly limit the Agency’s or conditions that affect or tend to affect fraud-based manipulative schemes, based responsibility to protect market the price of any commodity in interstate upon similar authority that the Securities and Exchange Commission, Federal Energy participants and promote the integrity of commerce, knowing, or acting in reckless disregard of the fact that such Regulatory Commission and Federal Trade the markets. Rather, consistent with Commission have for securities and certain Dodd-Frank Act section 753(d) and report is false, misleading or inaccurate. energy commodities. Administrative Procedure Act section Notwithstanding the foregoing, no In the past, the CFTC had the ability to 553(d), 5 U.S.C. 553(d), the final Rules violation of this subsection shall exist prosecute manipulation, but to prevail, it had will take effect 30 days after they are where the person mistakenly transmits, to prove the specific intent of the accused to published in the Federal Register. in good faith, false or misleading or create an artificial price. Under the new law inaccurate information to a price and one of the rules before us today, the List of Subjects in 17 CFR Part 180 reporting service. Commission’s anti-manipulation reach is Commodity futures. extended to prohibit the reckless use of (b) Nothing in this section shall be fraud-based manipulative schemes. This Authority and Issuance construed to require any person to closes a significant gap, as it will broaden the disclose to another person nonpublic types of cases we can pursue and improve For the reasons stated in the the chances of prevailing over wrongdoers. preamble, the Commodity Futures information that may be material to the market price, rate, or level of the The rule also implements the Dodd-Frank Trading Commission adds a new 17 CFR Act’s price-based manipulation authority to Part 180 as set forth below: commodity transaction, except as police against corners and squeezes. These necessary to make any statement made new authorities expand the CFTC’s arsenal of PART 180—PROHIBITION AGAINST to the other person in or in connection enforcement tools and strengthen the MANIPULATION with the transaction not misleading in Commission’s ability to effectively deal with any material respect. threats to market integrity. We will use these Sec. tools to be a more effective cop on the beat, 180.1 Prohibition on the employment, or (c) Nothing in this section shall affect, to promote market integrity and to protect attempted employment, of manipulative or be construed to affect, the market participants. and deceptive devices. applicability of Commodity Exchange I thank Senator Maria Cantwell for her 180.2 Prohibition on price manipulation. Act section 9(a)(2). work to secure this important authority for Authority: 7 U.S.C. 6c(a), 9, 12(a)(5) and the CFTC. As Senator Cantwell explained in 15, as amended by Title VII of the Dodd- § 180.2 Prohibition on price manipulation. proposing that this authority be included in Frank Wall Street Reform and Consumer the Commodity Exchange Act, ‘‘It is a strong It shall be unlawful for any person, and clear legal standard that allows Protection Act, Pub. L. 111–203, 124 Stat. directly or indirectly, to manipulate or 1376 (2010); 5 U.S.C. 552 and 552(b), unless regulators to successfully go after reckless otherwise noted. attempt to manipulate the price of any and manipulative behavior.’’ swap, or of any commodity in interstate Attachment A 149 5 U.S.C. 601. commerce, or for future delivery on or 150 Id. subject to the rules of any registered Parties filing comments: 151 API and NPRA at page 27. entity. Air Transport Association (ATA)

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American Bar Association, Derivatives and of the rule failed to list an effective date. effective date.’’ Because our approval Futures Law Committee, Business Law This final rule corrects that omission by was published on June 29, 2011, and the Section (ABA Derivatives Committee) providing an effective date. notice did not specify a different American Petroleum Institute (API) and effective date, for purposes of the West National Petrochemical and Refiners DATES: The interim final rule published Association (NPRA) at 76 FR 37996 is effective July 14, 2011. Virginia Regulatory Program, we Argus Media, Inc. (Argus) ADDRESSES: You may submit comments consider the State’s provisions approved Barnard, Chris (Barnard) on the interim rule WV–117–FOR (76 effective June 29, 2011. Please see the Better Markets FR 37996; June 29, 2011) by any of the Federal Register document published at Brattle Group Economists (Brattle Group) following two methods: 76 FR 37996 on June 29, 2011, for more Carini, Peter* • Federal eRulemaking Portal: http:// details. CME Group, Inc. (CME Group) www.regulations.gov. The rule has been Coalition of Physical Energy Companies List of Subjects in 30 CFR Part 948 assigned Docket ID OSM–2011–0006. If (COPE) Intergovernmental relations, Surface Commodity Markets Council (CMC) you would like to submit comments Council of Institutional Investors (Council) through the Federal eRulemaking Portal, mining, Underground mining. Edison Electric Institute (EEI) go to http://www.regulations.gov and Dated: July 5, 2011. Freddie Mac follow the instructions. Michael K. Robinson, Futures Industry Association, International • Mail/Hand Delivery: Mr. Roger W. Acting Regional Director, Appalachian Swaps and Derivatives Association, Inc. Calhoun, Director, Charleston Field Region. (ISDA) and Securities Industry and Office, Office of Surface Mining [FR Doc. 2011–17336 Filed 7–13–11; 8:45 am] Financial Markets Association (SIFMA) Reclamation and Enforcement, 1027 (together, the Associations) BILLING CODE 4310–05–P Managed Funds Association (MFA) Virginia Street, East, Charleston, West Pen Fern Oil Co., Inc.* Virginia 25301. Petroleum Marketers Association of America FOR FURTHER INFORMATION CONTACT: Mr. POSTAL SERVICE (PMAA) Roger W. Calhoun, Director, Charleston Platts Field Office, Telephone: (304) 347– 39 CFR Part 111 Scullin Oil Co.* 7158. E-mail: [email protected]. Townsend, Clarence (Townsend) SUPPLEMENTARY INFORMATION: Group E Post Office Box Service U.S. Senator Carl Levin (Senator Levin) On June 29, 2011, we published an interim rule University of Maryland School of Law, AGENCY: Postal ServiceTM. Professor Michael Greenberger (Professor with request for comments at 76 FR ACTION: Final rule. Greenberger) 37996. The interim rule announced Weir, Bix receipt of a proposed amendment to the SUMMARY: The Postal ServiceTM is West Virginia Oil Marketers & Grocers West Virginia permanent regulatory revising the Mailing Standards of the Association (OMEGA)* program under the Surface Mining Working Group of Commercial Energy Firms United States Postal Service, Domestic Control and Reclamation Act of 1977. Mail Manual (DMM®) 508.4.6 to clarify (CEF) On May 2, 2011, the WVDEP submitted Zwack, Joseph eligibility, simplify the standards, and * Denotes commenters filing identical a program amendment to OSM that facilitate uniform administration for comments which were consolidated. included both statutory and regulatory Group E (free) Post OfficeTM (PO) box revisions. West Virginia submitted [FR Doc. 2011–17549 Filed 7–13–11; 8:45 am] service. proposed permit fee revisions to the BILLING CODE 6351–01–P Code of West Virginia as authorized by DATES: Effective Date: September 6, House Bill 2955 that passed during the 2011. State’s regular 2011 legislative session. FOR FURTHER INFORMATION CONTACT: DEPARTMENT OF THE INTERIOR In addition, West Virginia amended its Laurence Welling at 202–268–7792, Ken Hollies at 202–268–3083, or Richard Office of Surface Mining Reclamation Code of State Regulations (CSR) to Daigle at 202–268–6392. and Enforcement provide for the establishment of a minimum incremental bonding rate as SUPPLEMENTARY INFORMATION: On 30 CFR Part 948 authorized by Senate Bill 121. The November 24, 2010, the Postal Service changes, due to the passage of House published a Federal Register proposed [WV–117–FOR; OSM–2011–0006] Bill 2995, will increase the filing fee for rule (75 FR 71642–71643) to clarify the State’s surface mining permit to eligibility, simplify the standards, and West Virginia Regulatory Program $3,500 and establish various fees for facilitate uniform administration for AGENCY: Office of Surface Mining other permitting actions. Senate Bill 121 Group E (free) PO BoxTM service. The Reclamation and Enforcement (OSM), authorizes regulatory revisions which Postal Service received several Interior. includes, among other things, the comments in response to this proposed ACTION: Interim rule; effective date. establishment of a minimum rule that are summarized later in this incremental bonding rate of $10,000 per notice. SUMMARY: On June 29, 2011, OSM increment at CSR 38–2–11.4.a.2. Group E PO Box service is provided published an interim rule approving a Because the West Virginia revisions free, with restrictions, to customers program amendment submitted by the have an effective date of June 16, 2011, whose physical addresses are not West Virginia Department of we approved the permit fees and the eligible for any form of USPS carrier Environmental Protection (WVDEP). minimum incremental bonding rate on delivery service. This service is The interim rule provided an an interim basis. Our regulations at 30 consistent with the USPS responsibility opportunity for public comment and CFR 732.17(h)(12) state that ‘‘[a]ll to provide universal mail delivery. This gave the comment due date and decisions approving or not approving final rule simplifies and clarifies some tentative hearing date. The summary program amendments must be of the language related to administering and preamble to the interim rule published in the Federal Register and Group E PO Box service. specified that it was effective upon will be effective upon publication For this final rule, the Postal Service publication; however, the DATES section unless the notice specifies a different removes the descriptive term, ‘‘business

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location’’, in favor of the general term retrieve mail. Such decisions are made ■ 2. Revise the following sections of ‘‘physical address’’. The latter describes routinely by Postmasters while Mailing Standards of the United States residential locations as well as business conforming with local practice, driving Postal Service, Domestic Mail Manual locations and no distinction between conditions, driver expectations, etc. (DMM) as follows: the two terms was intended. Further, postmasters already make such Mailing Standards of the United States USPS further deletes the reference to decisions in contexts unrelated to Group Postal Service, Domestic Mail Manual ‘‘out-of-bounds delivery receptacles’’ in E eligibility. Postmasters who determine (DMM) favor of language recognizing that Group that a proposed mailbox location is E PO Box service is not available when unsafe typically work with customers to * * * * * a physical address receives any form of find a solution that allows safe delivery. 500 Additional Mailing Services USPS carrier delivery. Confusion over One commenter expressed concern the intent of the meaning of ‘‘out-of- about the potential misuse of ‘‘or other * * * * * bounds’’ obscured the larger context conditions’’ is now addressed by the 508 Recipient Services wherein Group E service should never Postal Service as: (1) Clarifying that the supplement a physical location’s carrier examples contained in the current DMM * * * * * delivery service. Clarifying the intent consist of conditions outside the control 4.0 Post Office Box Service and eliminating this confusion may of the Postal Service and, (2) by cause existing Group E customers to introducing the examples using ‘‘such * * * * * lose Group E eligibility for their as’’ so that it is understood that they are 4.6 Fee Group Assignments physical addresses, while others whose not all inclusive. By using these physical locations the USPS chooses not explanations, the ‘‘or other conditions’’ * * * * * to provide carrier service to may become text is deleted from the final rule. [Revise the title, introductory text and eligible for Group E service. The foundation of Group E PO Box items 4.6.2a, b and c, and eliminate item The Postal Service also revises the eligibility is a discretionary Postal d in its entirety as follows:] DMM to acknowledge carrier delivery Service decision not to extend carrier 4.6.2 Free PO Box Service (Group E) service that, once established to a delivery to a specific carrier delivery Customers may qualify for Group E particular physical address, eliminates point (e.g., a house). When conditions (free) PO Box service at a Post Office if Group E eligibility. Improved language prevent carrier delivery, where it would their physical address location meets all in this section illustrates situations otherwise be operationally feasible, of the following criteria: where no eligibility for Group E arises Group E eligibility is not an option. The a. The physical address is within the either because carrier delivery is DMM will continue to identify geographic delivery ZIP Code available or because action (or inaction) examples of conditions, including boundaries administered by a Post by third parties precludes USPS from ‘‘unsafe conditions’’ that preclude the Office. extending carrier delivery. Postal Service from deciding whether or b. The physical address constitutes a not to extend carrier delivery. Comments Received potential carrier delivery point of The same commenter expressed service. Three comments were received concern about the fair administration of c. USPS does not provide carrier regarding the proposed rule, addressing Group E eligibility. The Postal Service delivery to a mail receptacle at or near multiple issues. agrees about the importance of Group E One commenter expressed concerns a physical address for reasons in 4.6.3b. in the context of its universal service about the vagueness of terminology in ‘‘At or near a physical address’’ is obligation and at the time of the proposal, for determining how close defined by reference to how carrier implementation, the Postal Service a ‘‘physical address’’ and delivery delivery is already established in a identified Group E service as one tool receptacle must be. In response, the particular locale or ZIP Code. for offering universal service under an Postal Service intends to add a sentence [Revise the title and introductory text overarching policy of providing one free to clarify that ‘‘at or near a physical of 4.6.3 and add new items a through d form of delivery to each customer. address’’ should be determined by how The Postal Service adopts the as follows:] carrier delivery is already established in following changes to the Mailing TM 4.6.3 Additional Standards for Free a particular locale or ZIP Code . Standards of the United States Postal Two separate comments expressed PO Box Service Service, Domestic Mail Manual (DMM), concern that local offices might misuse Only one Group E (free) PO Box may which is incorporated by reference in ‘‘unsafe conditions’’ and ‘‘or other be obtained for each potential carrier the Code of Federal Regulations. See 39 conditions’’ to deny Group E eligibility. delivery point of service, under the CFR 111.1. One of the commenters also expressed following conditions: concern about the impact of local List of Subjects in 39 CFR Part 111 a. Group E PO Box customers are discretion on decisions. In response to Administrative practice and assigned the smallest available box that these concerns, it is the Postal Service procedure, Postal Service. reasonably accommodates their daily opinion that neither commenter was mail volume. Accordingly, 39 CFR Part 111 is aware that the examples currently listed b. Eligibility for Group E PO Boxes amended as follows: in the DMM reflect restrictions that are does not extend to: out of Postal Service control and are not PART 111—[AMENDED] 1. Individual tenants, contractors, all inclusive. Recognizing this lack of employees, or other individuals clarity, this final rule attempts to ■ 1. The authority citation for 39 CFR receiving or eligible to receive single- provide a better explanation. Part 111 continues to read as follows: point delivery to a location such as a With respect to ‘‘unsafe conditions’’, Authority: 5 U.S.C. 552(a); 13 U.S.C. 301– hotel, college, military installation, local Postmasters are best able to 307; 18 U.S.C. 1692–1737; 39 U.S.C. 101, campground, or transient trailer park. determine when mailbox placement 401, 403, 404, 414, 416, 3001–3011, 3201– 2. Locations served, or eligible to be might be unsafe for postal employees to 3219, 3403–3406, 3621, 3622, 3626, 3632, served, by centralized delivery or attempt delivery or for customers to 3633, and 5001. grouped receptacles such as cluster box

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units, apartment style receptacles, on the proposed rule. Analysis of the and postal supervisors’ organizations, mailrooms, or clusters of roadside various comments received appears one postal lessors’ organization and receptacles. below. various of its members, one mailing 3. Locations where circumstances not The Postal Service is currently in the industry stakeholder, and numerous within the control of the Postal Service process of consultation under 39 U.S.C. other postal customers. Although some prevent extension of carrier delivery, 1004(b)–(d) about certain aspects of the comments were favorable about certain such as town ordinances, private roads, proposed rule. Therefore, the relevant aspects of the proposed rule, almost all gated communities, unimproved or proposed changes and comments of the comments expressed concerns poorly maintained roadways, or unsafe relative to those proposed changes are about various aspects of the proposed conditions. not included in this final rule, but may rule. Below we discuss the comments 4. Locations served by a delivery be addressed in a subsequent final rule. and our response to each. receptacle that a customer chooses to Under 39 U.S.C. 1004(b)–(d), the Postal locate along a carrier’s line of travel and Service is obliged to consult with A. Closure of Post Offices and Other to which the Postal Service makes certain supervisory and other Retail Facilities delivery. managerial organizations about the 1. Procedural Safeguards c. A customer must pay the applicable planning and development of pay policies and schedules, fringe benefit The overwhelming majority of fee for each PO Box requested in comments urged the Postal Service not addition to the initial free Group E PO programs, and other programs related to supervisory and other managerial to close Post Offices (as well as, Box. presumably, stations and branches), d. The online application tools employees. (The Postal Service understands ‘‘other programs’’ to especially in small and rural described in 4.3.1b cannot be used for communities. These commenters stated free PO Box service. constitute those concerning employment, of a piece with the other that cost savings would be low, that * * * * * there would be undue hardship on some We will publish an appropriate enumerated subjects of consultation, and not programs concerning facilities customers, and other matters. Many amendment to 39 CFR Part 111 to reflect expressed concern about a specific these changes. or the operating network more generally, which may have an indirect postal retail facility. Additionally, many Stanley F. Mires, effect on employees.) Because the appeared to believe that the proposed Chief Counsel, Legislative. subject matter of this final rule does not rule would eliminate procedures and make it easier to close retail facilities, [FR Doc. 2011–17389 Filed 7–13–11; 8:45 am] itself comprise any program subject to including for reasons prohibited by BILLING CODE 7710–12–P 39 U.S.C. 1004(b)–(d), the Postal Service considers it to fall outside the scope of statute. See, e.g., 39 U.S.C. 101(b) (‘‘No those provisions. Nevertheless, the small post office shall be closed solely POSTAL SERVICE Postal Service has taken into account for operating at a deficit[.]’’). To the comments by supervisory and other contrary, the Postal Service has long 39 CFR Part 241 managerial organizations, as it has been and remains focused on the need comments by other members of the for customers in less populated locales Post Office Organization and public. to have regular and effective access to Administration: Establishment, As explained in the proposed rule, delivery and retail services, thereby Classification, and Discontinuance this final rule is not retroactive. helping to bind all customers and the nation together through written AGENCY: Postal Service. Therefore, any change in policy or regulations does not affect the correspondence. ACTION: Final rule. procedures applicable to discontinuance These comments seem to overlook the actual scope of the changes. This SUMMARY: The Postal Service is processes initiated before the effective rulemaking does not reduce or abolish amending 39 CFR part 241 to improve date of this final rule, when previous any transparency attained through, for the administration of the Post Office regulations may have been in effect. example, public notice, public input, closing and consolidation process. In The Postal Service is exempt from the and consideration of all comments addition, certain procedures employed notice requirements of the received before any Post Office may be for the discontinuance of Post Offices Administrative Procedure Act (5 U.S.C. discontinued. In fact, transparency will are applied to the discontinuance of 553(d)) regarding final rules by 39 be enhanced. Nor does the rulemaking other types of retail facilities operated U.S.C. 410(a). Moreover, the chief change any of the criteria for by Postal Service employees. substance of this final rule is to extend to Postal Service-operated stations and discontinuing a Post Office, which are DATES: Effective date: July 14, 2011. branches the notice and comment set forth in the statute and include FOR FURTHER INFORMATION CONTACT: Jim procedures applicable to the consideration of cost savings, the effects Boldt, (202) 268–6799. discontinuance of Post Offices, thereby on employees and the community, and SUPPLEMENTARY INFORMATION: relieving restrictions that had the prohibition on closing small Post On March 31, 2011, the Postal Service previously been placed on public Offices solely for financial reasons. It published a proposed rule in the participation in the discontinuance should be noted that the statutes in Federal Register (76 FR 17794) to process for stations and branches. question apply only to the justifications improve the process for discontinuing for actually discontinuing a facility; Post Offices and other Postal Service- I. Response to Comments Received they do not restrict Postal Service operated retail facilities. The proposed The Postal Service received discretion to evaluate its retail network rule also reflected the Postal Service’s approximately 257 comments in and identify specific facilities for formal determination, as a matter of policy, to response to the proposed rule. study. apply the same discontinuance Commenters included 34 Members of To highlight the distinction between procedures to all retail facilities Congress, the Postal Regulatory initiation of a preliminary feasibility operated by Postal Service employees. Commission (‘‘Commission’’ or ‘‘PRC’’), study and the development of an official The Postal Service requested comments five state legislators, three postmasters’ proposal, the Postal Service is adding

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language to 39 CFR 241.3(a)(4)(i) that mandatory criterion for evaluation in directed to those conducting studies specifies circumstances justifying a the discontinuance process. affecting the subject facilities. This responsible Vice-President’s decision to To be sure, Postal Service plans to rulemaking concerns only nationwide initiate a feasibility study, as specified close or consolidate Post Offices must criteria and procedures, not specific elsewhere in 39 CFR 241.3(a)(4). At the be consistent with the statutory facilities. If and when a particular same time, this language does not requirement in 39 U.S.C. 101(b) that facility is evaluated in a discontinuance provide that officer an official decision- ‘‘[n]o small post office shall be closed study, the public will have full notice making role in any resulting solely for operating at a deficit, it being and opportunity to provide input, as discontinuance proposal. the specific intent of the Congress that under the previous regulations. An initial feasibility study need not effective postal services be insured to residents of both urban and rural B. Redefinition of ‘‘Consolidation’’ and lead to evaluation for potential Appeal Rights discontinuance. If it does, the public communities.’’ As a result, a proposed will receive expanded opportunity for discontinuance of a small Post Office Several commenters expressed comment as the Postal Service considers may not proceed to a final concern about the proposed rule’s all of the requisite factors en route to determination if the sole reason is that reinterpretation of ‘‘consolidation,’’ any final determination, just as it has in the facility operates at a loss. Consistent such that the term would no longer the past. Although this rulemaking with this statutory prohibition, the apply to the conversion of an expands the range of factors that can Postal Service provided in proposed 39 independent Post Office into a Postal justify a discontinuance study, any CFR 241.3(a)(4)(ii)(D) that no initial Service-operated station or branch. In formal discontinuance decisions must feasibility study of a small Post Office particular, these commenters claim that still be based upon the same may commence, absent other this approach, combined with the fact considerations as before. Opportunity permissible criteria, if the sole that 39 U.S.C. 404(d)(5) does not confer for public participation will actually justification is that the office operates at appeal rights for closings or increase, because the Postal Service will a deficit. This provision is maintained consolidations of stations and branches, ensure broad public awareness by in the final rule. could result in an effective denial of Many comments offer general support sending written notice in the form of a appeal rights if the Postal Service were for the continued existence of rural Post ‘‘Dear Customer’’ letter and to convert a Post Office into a station or Offices; the Postal Service itself remains questionnaire to all delivery points in branch and then proceed to close or committed to serving customers in all the ZIP Code area served by the facility consolidate the facility. areas, including rural ones, and Post being studied. Offices constitute one key tool for doing 1. Definition of ‘‘Consolidation’’ As described in the proposed rule, the so. The primary customer need, The Postal Service is currently in the rulemaking will actually expand however, is access to postal services to process of consultation under 39 U.S.C. application of the most rigorous process the extent consistent with reasonable 1004(b)-(d) about the proposed for discontinuance of Postal Service- economies of postal operations, which reinterpretation of ‘‘consolidation,’’ operated retail facilities beyond is possible today without using rural among other aspects of the proposed independent Post Offices. While Post Offices alone. 39 U.S.C. 403(b)(3). rule. Therefore, the Postal Service is Congress applied the criteria in 39 By no means are Post Offices the sole deferring the relevant changes for the U.S.C. 101(b) and 404(d) only to conduit for access to postal services. time being. Comments on this aspect of independent Post Offices, and not to The best example, well known to the proposed rule will be taken into stations or branches, the Postal Service customers served by non-city delivery, consideration and may be addressed in is making that same process applicable consists of carriers themselves, who can a subsequent final rule. to the discontinuance of all Postal and do provide retail services. The 2. Appeal Rights and Notice Thereof Service-operated retail facilities, thereby Postal Service recognizes that it may not encompassing subordinate stations and close small Post Offices solely for The Commission recommended that branches. Contrary to many operating at a deficit, just as it the Postal Service provide notice of commenters’ perception that the recognizes that access options continue appeal rights when proposing or rulemaking would remove ‘‘due to expand for all customers. Alternative determining to discontinue a station or process’’ protections for stations and channels for access to retail services branch. This Commission noted that the branches, the rulemaking will actually continue their growth in all areas; Postal Service proposed to apply increase scrutiny and transparency for wherever retail traffic in Post Offices procedures to facilities beyond the such facilities by using the process drops below minimal levels, it follows statutory scope of applicability and previously applicable only to that customers must be obtaining the suggested that the Postal Service could independent Post Offices. access they need without utilizing Post similarly extend appeal rights. With respect to notice of appeal rights 2. Role of Economic Indicators Offices. The Postal Service accordingly maintains its focus upon providing all concerning stations and branches, the While some commenters express customers the access they require, Postal Service does not believe that the concern about the possible evaluation whether it be via Post Offices or the authority exists to extend the by the Postal Service of discontinuance available alternatives. Commission’s grant of jurisdiction in 39 candidates using economic indicators U.S.C. 404(d)(5) to the closure or like population or volume trends, 3. Discontinuance of Specific Facilities consolidation of a station or branch. applicable law (39 U.S.C. 404(d)) Many commenters articulated This is true regardless of how already requires that the Postal Service concerns about particular retail ‘‘consolidation’’ is interpreted. This consider economic savings in any final facilities, thus reflecting a rulemaking does not and can not alter determination to discontinue a Post misunderstanding of the instant the scope of the Commission’s Office. Of course, population and rulemaking’s scope. Such comments are jurisdiction, so it does not change when volume trends may also inform either premature or misdirected; they the public is entitled to notice of appeal evaluation of likely impact on the may become germane when the subject rights. At the same time, it should be community, which is another facilities are studied, or should be emphasized that this rulemaking does

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not affect interested persons’ extant it is axiomatic that a party may decline discontinuance. Thereafter, the District opportunity to seek any administrative to assert valid jurisdictional defenses in Manager oversees the follow-up appeal. The Postal Service recognizes in specific cases, without prejudicing its investigation and determines whether to the proposed rule that the Commission assertion of the same objections in other proceed with a formal proposal to and other stakeholders interpret 39 cases or contexts. To recognize Postal discontinue the facility. As noted above, U.S.C. 404(d)(5) differently. Service counsel’s discretion over the final rule includes additional Notwithstanding the actual limits of litigation strategy does not diminish the language in 39 CFR 241.3(a)(4)(i) to statutory jurisdiction, discontinuances validity of the general principle that the clarify the distinction between the of stations and branches have been Commission is without legal authority initial feasibility study, which a appealed to the Commission, and the to entertain purported appeals of station responsible Vice President or a District Commission has entertained those and branch discontinuances. Manager may initiate, and the formal appeals as though they concerned proposal, for which a Vice President is C. Community Meetings independent Post Offices subject to 39 not responsible. U.S.C. 404(d)(5). E.g., PRC Docket Nos. Several commenters took issue with Concern about the Vice President’s A2011–4 (University Station, Eugene, proposed 39 CFR 241.3(d)(2), which role may have been driven by the OR 97403), A2011–5 (Penobscot Station, provides that a community meeting is inclusion of an erroneous reference to a Detroit, MI 48231); see also SBOC required unless otherwise instructed by Vice President’s discretion in 39 CFR Opinion at 66 (‘‘The Commission the responsible Vice President or the § 241.3(c)(1), which might have already believes it is required to accept Area Manager, Delivery Programs suggested that the Vice President could such appeals.’’). Support. These commenters expressed directly determine whether to post a This rulemaking does not change the belief that this would undermine a proposal, independent from the District Postal Service regulations as to whether current standard of allowing public Manager. This error has been corrected discontinuances of stations or branches input through community meetings in in the final rule. may be appealed, nor does it add all cases. The District Manager evaluates public measures to preclude such appeals from Previous Postal Service regulations, comments on the proposal and decides being filed. While the Postal Service however, have not required a whether to forward a recommended maintains that the Commission does not community meeting for every Post final determination to the responsible have appeal jurisdiction over stations Office discontinuance. The most recent Vice President for ultimate review and and branches under current law, the version of 39 CFR 241.3(d)(3) listed decision. As such, the local knowledge rulemaking does introduce an explicit ‘‘meeting with community groups’’ as vested in district postal personnel recognition that the Postal Service may, exemplifying options available if becomes a strength of the foundation for in its discretion, decline to challenge deemed ‘‘necessary’’ to a larger any decision to pursue discontinuance the Commission’s jurisdiction in certain transparency effort. Moreover, sections of a retail facility. As such, a Vice (or even, if it chooses, all) cases, which 243 and 721 of Handbook PO–101, Post President’s role at this latter stage contrasts with its previous practice of Office Discontinuance Guide, have extends only to a final check on a asserting jurisdictional defenses in all provided only that community meetings District Manager’s recommendation that cases. Accordingly, to the extent that are one option for public input, a discontinuance move forward. commenters believe they would lose the alongside questionnaires and other Thus, the proposed rule and final rule practical ability to seek accountability of methods. The new regulations recognize the importance of the District station and branch discontinuances accordingly impel community meetings Manager’s assessment of local through appeal (or through the Postal more forcefully than before, because conditions. Under the final rule, the Service’s awareness of the prospect of community meetings will be required District Manager accordingly retains appeal) to the Commission, such absent instructions to the contrary from significant discretion to take account of criticisms are overstated. senior management. In practice, it is local conditions before deciding One commenter stated a belief that expected that community meetings whether to proceed with a proposal or the proposed rule would make the would be offered unless some final determination to discontinue a discontinuance process more exceptional circumstance (such as a facility. ‘‘administrative’’ by empowering the community’s demise) makes a meeting E. Staffing of Post Offices Commission to modify the Postal an impractical tool for gathering Service’s final determination. In customer input. The final rule includes Many commenters expressed the view actuality, however, these aspects of the an additional clarification limiting that the Postmaster Equity Act, Public proposed rule have not changed from exceptions from the community meeting Law 108–86 (2003), precludes the prior regulations. Moreover, the nature requirement. proposed change to 39 CFR 241.1, such of the Commission’s appeal jurisdiction that, in their view, a Post Office may not and the general administrative nature of D. Role of Vice President be operated or managed by anyone but the discontinuance process were Several commenters also a postmaster. As codified in 39 U.S.C. established by Congress in the Postal recommended against the proposed 1004(i)(3), the Postmaster Equity Act Reorganization Act Amendments of approach whereby a feasibility study defines a ‘‘postmaster’’ as ‘‘an 1976 (Pub. L. 94–421), the Postal could be initiated by a responsible Vice individual who is the manager in charge Service’s regulations merely track this President, as well as by a District of the operations of a post office, with language. Manager. These commenters advised or without the assistance of subordinate Finally, one commenter agreed with that a national-level Vice President is managers or supervisors.’’ The Postal the Postal Service’s analysis of 39 U.S.C. less likely than a District Manager to Service is currently in the process of 404(d)(5), but objected to the proposed have an appropriately nuanced consultation under 39 U.S.C. 1004(b)– rule’s ultimate framing of the matter in understanding of community-specific (d) about this aspect of the proposed terms of a right to object or not to object conditions. rule. Therefore, the Postal Service is to the Commission’s assertion of To clarify, the Vice President’s role in deferring the relevant changes for the jurisdiction. While the commenter’s proposed 39 CFR 241.3(a)(2) and (a)(4) time being. Comments on this aspect of views are understood and appreciated, is to trigger an exploration of possible the proposed rule will be taken into

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consideration and may be addressed in and-mortar facilities, such as the However, the Postal Service is mindful a subsequent final rule. http://www.usps.com Web site, of the limited purpose of this important One commenter opined that a Automated Postal Centers, non-city privacy protection. previous rule change required a delivery carriers, stamp consignment H. Notice to Customers Served by postmaster to reside in the delivery area locations such as grocery stores, and Suspended Facility of the Post Office in which he or she Stamps by Mail, Fax, and Phone. served, and that the Postal Service’s Moreover, before the Postal Service One commenter suggested that regulations should revert to that rule. It can reach any final determination on a customers formerly served by a is true that local residence was a former proposed discontinuance, 39 U.S.C. suspended retail facility should be requirement for postmaster eligibility, 404(d) requires the Postal Service to notified of discontinuance-related but this requirement did not derive from consider (among other things) the effect actions by mail, not just by posting at Postal Service regulations. Rather, it on the community and the statutory other retail facilities. The Postal Service existed in a statute that Congress policy of providing a maximum degree intends to mail notice and a repealed when the Postal of effective and regular postal services questionnaire to customers formerly Reorganization Act established the to rural areas, communities, and small served by a Postal Service-operated current merit-based system for towns where Post Offices are not self- retail facility whose operations have postmaster appointments. See Public sustaining. In virtually all cases, this undergone an emergency suspension to Law 86–682, 74 Stat. 578, 710 (1960) means careful consideration of the the same extent that it would have if the (formerly codified at 39 U.S.C. 3312) utility provided by alternative access facility were not suspended. Because (repealed 1970). The Postal Service does channels, including services available this intention may not have been not intend to revisit such a policy in through letter carriers, particularly as sufficiently clear, the Postal Service light of the Congressional repeal of the this tends to be a focus of customer incorporates the commenter’s pertinent statute, so the commenter’s input. Therefore, the commenter and suggestion with clarifying language in proposed change is not included in this other customers may rest assured that new paragraph 241.3(a)(4)(iii). final rule. the continued availability of retail I. Inapplicability of Procedures to services will remain a key point of F. Alternatives to Discontinuance Contractor-Operated Facilities consideration whenever the Postal One commenter requested that the Service studies a community’s needs. One commenter notes that, in at least Postal Service include in 39 CFR 241.3 one case, postal customers were a provision to allow for the possibility G. Redaction of Personally Identifiable informed that a contractor-operated that, where the financial viability of a Information Community Post Office (CPO) would retail facility is a factor in a One commenter voiced suspicion that provide many of the same services as a discontinuance study, the local the Postal Service would impermissibly Postal Service-operated retail facility, government can offer to make up the edit or conceal information in publicly except for some services such as permit projected shortfall as a means for available documents under cover of the mailing acceptance. The commenter preserving retail service at the facility. proposed provision that would allow for then advises that the same This suggestion is already accounted for redaction of personally identifiable discontinuance procedures should in existing discontinuance processes information. Another commenter apply to contractor-operated retail and practice, wherein communities characterized this change as facilities, particularly in locations where have ample opportunity to offer views inappropriate because submitters of a CPO may be the only postal retail and alternatives that might address public comments to a public facility. justifications for a specific administrative record do not have a Another commenter opined that discontinuance. The Postal Service privacy interest in their identities. services provided by a contractor- takes that input into account as it Rather than being a substantive operated retail facility can, in certain determines whether a proposal is change that the Postal Service could cases, be equivalent to or better than warranted. It is plausible that an somehow exploit to willfully edit an services provided by a Post Office or agreement by a municipality or agency administrative record, the proposed other Postal Service-operated retail to incur certain costs or burdens can be provision merely updates 39 CFR 241.3 facility. As a result of more flexible decisive and lead the Postal Service to to reflect other statutes and regulations office hours or parking, for example, forgo a discontinuance study. that authorize, on a discretionary basis, contractor-operated retail facilities may Contractor-operated retail facilities or the withholding of personally offer more ready access to essential other arrangements are also possible. identifiable information from public postal services and thereby a handier Because current practice and the disclosure. See 39 U.S.C. 410(c)(1). method to ensure compliance with 39 proposed rule already address these Limited redaction, performed on a U.S.C. 403(b)(3). Hence, the commenter concerns, no further revision to the final discretionary, as-needed basis to protect concludes that distinctions based on the rule appears warranted. customers’ personally identifiable identity of the retail facility operator Another commenter advised that information in the discontinuance and might not have universal validity. customers should be ensured alternative other contexts, is well-established and The Postal Service acknowledged in access channels before the Postal has been uncontroversial before the the proposed rule that customers of Service proceeds with discontinuance. Commission. See, e.g., United States contractor-operated retail facilities may The Postal Service believes its processes Postal Service Notice of Filing and experience and expect comparable (or adequately meet this concern. Under the Application for Non-Public Status, PRC better) levels of service relative to those proposed rule, the availability and use Docket No. A2011–1, January 6, 2011; at Postal Service-operated retail of alternative access channels would Order Affirming Final Determination, facilities. However, the Postal Service help inform local officials regarding the PRC Docket No. A2011–1, February 15, also explained that exigencies of necessity for a fully staffed postal 2011, at 3 n.7 (acknowledging the Postal contracting relationships make it facility. Today, retail services are Service’s filing of administrative record generally impractical to harmonize their available to customers through a variety with redactions of, among other things, discontinuance procedures with the of channels beyond traditional brick- personally identifiable information). deliberative timeframe and procedures

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required for discontinuance of Postal K. Emergency Suspensions 251.3(g)(2) concerns the period between Service-operated facilities. For example, One commenter recommended that, posting by the Postal Service of its final management’s ability to negotiate where a discontinuance study is related determination and when operational reasonable terms for the operation of a to expiration or cancellation of a lease discontinuance takes effect (barring an contract unit, or to require satisfactory without suitable alternative quarters in appeal to the Commission). At that contract performance, would be harmed the community, the Postal Service point, two rounds of public input on a if parties were permitted to appeal those should initiate the discontinuance study possible discontinuance, and responses discontinuances for alleged procedural sufficiently in advance of the lease’s end to each,will already have been undertaken before the Postal Service defects. Postal management’s right of date to allow the lessor and customers termination of a CPO operator’s contract reached a final decision. Therefore, the an opportunity to explore alternatives would be impaired, particularly in need for additional public input does and provide input. Alternatively, the communities in which the CPO operator not affect, and is unrelated to, the length commenter suggested that the retail is the only person capable of operating of time the final determination is posted facility in question could be kept open a CPO. This would cause unnecessary or the duration before final action. This as long as necessary to gather delay prior to termination, and thereby change by the Postal Service merely information in a discontinuance study. force the Postal Service to continue a harmonizes the waiting period with the The Postal Service agrees with the contract where sound business 60-day statutory posting requirement general thrust of this comment and judgment and effective oversight would established by Congress in 39 U.S.C. includes a new paragraph 241.3(a)(4)(iii) require otherwise. 404(d)(4). CPO operators would also gain in the final rule to encourage local Three other commenters asked more substantial bargaining leverage against management accordingly. This new generally that the Postal Service reverse the Postal Service, if the Postal Service’s provision is framed as guidance to be proposed changes believed to shorten ability to change the contractual followed wherever possible, rather than time periods for comment. Aside from provision of postal services in the a universal requirement, because a the revision of the final determination affected community were subject to the single solution can never be made to fit posting period discussed above (which lengthy and costly discontinuance every challenge or suspension. does not concern comment periods), the study, if not also litigation. Moreover, One commenter asserted numerous Postal Service has not proposed any assuming a formal discontinuance study allegations about the Postal Service’s adjustment to comment periods in 39 were required, the CPO operator might handling of emergency suspensions: CFR 241.3. Nor is it evident that the demand additional compensation for Disregard for existing rules, existing 60-day comment period on participating in the study. If a study manipulation of lease renewal and discontinuance proposals, which has were not conducted because termination processes, and maintenance been in effect for decades, provides replacement services would not provide of facilities in suspended status without insufficient opportunity for public the maximum degree of regular and undergoing a formal discontinuance. participation as envisioned by 39 U.S.C. effective service, a CPO operator might Allegations of failure to comply with 404(d). See 39 U.S.C. 404(d)(1) (‘‘The also gain a significant bargaining regulations are beyond the scope of this Postal Service, prior to making a advantage for negotiating a price rulemaking. The improved process for determination * * * as to the necessity increase. discontinuance actions provided in this for the closing or consolidation of any As noted throughout this rulemaking, final rule may, however, address the post office, shall provide adequate the legislative history and text of 39 timely and final disposition of many notice of its intention to close or U.S.C. 404(d) limit that statute’s scope suspended offices and diminish consolidate such post office at least 60 to independent Post Offices. The Postal pressure to seek solutions outside days prior to the proposed date of such Service does not currently believe that current policy. closing or consolidation[.]’’). While the it would be prudent to apply the same One commenter also noted that the proposed rule and final rule are aimed procedures, as a policy matter, to emergency suspension form in at enhancing opportunities for public contractor-operated retail facilities. This Handbook PO–101, Post Office input, there does not appear to be a policy distinction does not cast a value Discontinuance Guide, currently does need to expand comment periods at this judgment on the quality of service not include a line item indicating that time. available from contractor-operated retail Postal Service management actually Finally, one commenter stated a belief facilities or on whether such facilities considered alternative access channels. that the 30-day period for appeals of may be suitable replacements for Postal The Postal Service is issuing a revised Post Office discontinuances is too short Service-operated retail facilities. version of Handbook PO–101 that will, and should be extended to a 60-day among other things, direct identification period. Congress has provided that a J. Status of Postmasters Affected by of available alternative access channels final determination to discontinue a Facility Type Conversion when conducting any emergency Post Office can be appealed only within Two commenters asked whether a suspension and notification of 30 days after the final determination is postmaster of an independent Post customers about their availability. made available. 39 U.S.C. 404(d)(5). The Office would become a station or branch Additional tools may also be brought to Postal Service does not have the power manager where the Post Office is bear on this set of issues. to change a jurisdictional limitation set converted into another Postal Service- by Congress. operated retail facility type, or whether L. Comment Periods and Waiting the Postal Service would use such Periods M. Relocations conversions to eliminate postmaster One commenter objected to the One commenter urged the Postal positions. Facility-specific staffing is change from a 90-day waiting period to Service to end relocations of retail outside the scope of this rulemaking and a 60-day waiting period after posting of facilities, which the commenter advised is subject to local management the final determination. This commenter could result in curtailed services to discretion, as guided by any applicable opined that the change would diminish customers near the original location. laws, regulations, policies and the public’s opportunity to provide Relocations of existing facilities that do agreements. input. The pertinent change to 39 CFR not result in an actual closure or

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consolidation are not subject to 39 procedures, of which this rulemaking is Postal Service response: Information U.S.C. 404(d). The Postal Service a part. Most of the resulting changes of this sort will become a standard regulations for relocations are at 39 CFR will be reflected in a corresponding feature of initial feasibility study notices 241.4, and they include requirements revision to Handbook PO–101, which and proposal notices. The Postal Service for public outreach and input contains detailed internal regulations; recently introduced online tools, to comparable to those applicable to the Postal Service does not necessarily which affected customers will be discontinuance actions. Accordingly, consider 39 CFR part 241 to be a directed, that provide more detailed the Postal Service finds that its suitable repository for such extensive information about alternate access relocation regulations are beyond the and fine-grained rules. As a more channels in the vicinity of a customer’s scope of this rulemaking. specific response to the Commission’s location. comments, the Postal Service provides Commission recommendation: The N. Effect of Discontinuances on Overall the following summation: methodology for evaluating cost savings Service Network Commission recommendation: The should be revised to address personnel Two postal supervisors’ organizations Postal Service should mail actual notice costs not eliminated, revenue leakage, cautioned that extensive closures of Post to all potential retail customers in the and costs inherent to the facility’s Offices could result in gaps and delays vicinity of a facility under consideration discontinuance (e.g., equipment in service and could erode public for discontinuance, in addition to P.O. disposal). confidence in the Postal Service Box customers and customers that Postal Service response: The cost generally. In offering this advice, the receive carrier delivery service based savings methodology used by commenters assume that the intent of out of the facility. management will be upgraded. The the rulemaking is to usher in sweeping Postal Service response: In Postal Service is still examining the closures of small and rural Post Offices. consonance with the Commission’s feasibility of including net labor cost The rulemaking establishes and recommendation, the Postal Service is savings and equipment disposal costs. updates procedures and considerations adding a new 39 CFR 241.3(a)(4)(iii) to The inclusion of these factors could be for discontinuance of all Postal Service- broaden customer notice that the implemented without further change in operated retail facilities, not just small feasibility of a possible discontinuance the regulations at issue in this and rural Post Offices. The Postal is being explored. The rule requires that rulemaking. Although the Commission’s Service does not believe that the customer notices and questionnaires be input on these factors has been helpful, proposed rule’s innovations, such as mailed to all delivery addresses situation-dependent and speculative allowing an initial feasibility study to physically located in the ZIP Code of factors like revenue leakage are difficult commence on the basis of volume the retail facility under study, as well as to quantify. trends or upon the identification of a any delivery addresses served by the Commission recommendation: The facility by a Headquarters Vice studied facility for allied delivery Postal Service should provide more President, necessarily target small or services such as mail pick-up. For those information in its public notices about rural Post Offices. A large or medium- retail customers who might visit the the analysis that management will use sized urban Post Office can be equally studied facility, notices and to evaluate discontinuance criteria. subject to declining volume or questionnaires will continue to be Postal Service response: Because of population trends that warrant available in the facility lobby. Local the mixed qualitative and quantitative reconsideration of its role in the postal management will also have the nature of local management’s retail network. discretion to provide notice via local evaluation, it is difficult to determine Even if the Postal Service were, in the media outlets, where appropriate. how much analytical detail can future, to develop a program to study Commission recommendation: Notice reasonably be provided in a written the discontinuance of large numbers of should be posted at nearby retail notice while retaining the reader’s retail facilities that had the potential to facilities, not just the facility subject to interest and attention. However, the effect a nationwide or substantially potential discontinuance. Postal Service’s standard community nationwide change in service, the Postal Postal Service response: Under the meeting presentation materials will Service would intend to seek an revised Handbook PO–101, the proposal include a list of factors that local advisory opinion from the Commission and final determination will be posted management will analyze, such as under 39 U.S.C. 3661(b)–(c). Parties at the retail facility under study, the current office needs, proximity to other would have a full opportunity to raise retail facility proposed to serve as the retail facilities and alternate access their concerns and assess the impact of supervising facility, and any facility locations, lease terms and real estate such a program on service levels and likely to serve a significant number of market conditions, retail revenue, public confidence at that time. Unless customers of the retail facility under community input, impact on customers and until such a program is developed study. and the community, effect on and presented to the Commission, Commission recommendation: employees, cost savings, environmental however, such concerns are speculative Questionnaire forms should be posted impact, and the long-term needs of the and premature. In the meantime, impact online for customers to download and Postal Service. It should be noted that, on service is necessarily taken into print. as explained above, community account in each discontinuance study. Postal Service response: The Postal meetings should be held in virtually all Service is exploring the feasibility of instances. O. Procedural Recommendations various electronic access tools for public Commission recommendation: In its comments, the Commission input. Discontinuance processes should be incorporated by reference all of the Commission recommendation: coordinated with evaluation of detailed recommendations in its SBOC Discontinuance study notices or replacement retail options, and the Opinion, while highlighting certain of proposal notices should contain availability of replacement retail options them. The Commission’s information about distance to nearby should be an express factor in recommendations have indeed had a retail facilities, their hours, alternative discontinuance studies. major influence on the Postal Service’s access channels, and how to request Postal Service response: larger effort to revise its discontinuance curbside delivery. Consideration of replacement retail and

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other alternate access channels will be in the regulations upon the conclusion Section 241.3(a)(4)(ii) (renumbered as expressly incorporated in the processes of the ongoing deliberations, in which § 241.3(a)(5)(ii)) has been revised set forth in Handbook PO–101. case the Postal Service will issue a somewhat to express more clearly the Commission recommendation: further final rule. Until then, the Postal distinction between the circumstances Management should use uniform Service will continue applying existing in clauses (A) through (C), none of information-gathering and analysis discontinuance procedures according to which can justify an initial feasibility tools. 39 CFR 241.3. A new clause study, and those in clause (D), which Postal Service response: The 241.3(a)(1)(i)(D) is added to reflect this can justify an initial feasibility study but discontinuance study process will be interim state of affairs. only in the presence of one or more of standardized through use of new Consistent with disclaimers in the the permissible circumstances listed in electronic tools. proposed rule and this final rule, a new § 241.3(a)(5)(i). This distinction tracks Commission recommendation: paragraph 241.3(a)(1)(iii) is added to that in the governing statute. Compare Community needs should be evaluated clarify that the revised regulations are 39 U.S.C. 404(d)(2)(B) (barring the separately from ‘‘other needs.’’ mandatory only for discontinuance Postal Service from considering Postal Service response: The final rule actions commenced on or after the compliance with any provision of the maintains the requirements in 39 CFR regulations’ effective date. The previous Occupational Safety and Health Act of 241.3(c)(4)(i), (ii), and (v) for separate regulations shall continue to apply to 1970 (29 U.S.C. 651 et seq.) in making consideration of community needs, the discontinuance actions initiated earlier, a determination to discontinue a Post effect on the community, and other unless management directs utilization of Office), with 39 U.S.C. 101(b) (providing factors. These distinct requirements will the new rules. that no small post office may be closed be reflected in the updated instructions For reference, a new paragraph solely for operating at a deficit). in Handbook PO–101 as well. The 241.3(a)(2) is added to provide A new § 241.3(a)(5)(iii) has been updated customer questionnaire will definitions of ‘‘USPS-operated retail added to specify how customers will solicit input on specific community facility,’’ ‘‘contractor-operated retail receive notice and questionnaires for the factors, such as concentrations of senior facility,’’ ‘‘closing,’’ ‘‘consolidation,’’ initial feasibility study. Notice and citizens and proximity to bus stops. and ‘‘discontinuance.’’ ‘‘USPS-operated questionnaires will be provided to retail Commission recommendation: retail facility’’ and ‘‘contractor-operated customers at the Postal Service-operated Management should be instructed to retail facility’’ are defined as in the retail facility under study, as well as by conduct outreach with local elected proposed rule. ‘‘Closing’’ and mail to customers in the five-digit ZIP officials, military and educational ‘‘discontinuance’’ are defined in Code delivery area of the facility and to installation representatives, and accordance with the definitions in the certain other customers. In addition, community development organizations. most recent version of Handbook PO– local management may determine Postal Service response: The standard 101; these definitions do not represent whether notification through media communications package provided to a substantive change from previous outlets is appropriate. management will contain specific regulations. ‘‘Consolidation’’ A new § 241.3(a)(5)(iv) has been outreach materials for local elected incorporates the meaning under both added with guidance to the effect that officials. Other groups will receive the previous regulations (conversion of when an initial feasibility study is to be notice in their capacity as local retail a Post Office into a Classified Station or initiated due to an emergency and delivery customers. Classified Branch) and the proposed suspension (for example, when it is rule (conversion of a USPS-operated anticipated that a lease or rental II. Explanation of Changes From retail facility into a contractor-operated agreement will be cancelled with no Proposed Rule retail facility). The remaining suitable alternate quarters available in The final rule includes the following paragraphs in subsection 241.3(a) are the community), responsible personnel changes to the proposed rule. renumbered accordingly. should, wherever possible, initiate the As explained in the preceding The introductory language to discontinuance process sufficiently in sections, certain issues are currently paragraph 241.3(a)(4) (renumbered as advance of the circumstance prompting subject to consultation under 39 U.S.C. (a)(5)) has been reorganized and revised the emergency suspension to allow a 1004(b)–(d) and further consideration by to clarify that the initial feasibility study meaningful opportunity for public input the Postal Service. These include the constitutes a distinct phase preliminary to be taken into account prior to the types of personnel that may be to any development of a written suspension taking effect. If necessary to responsible for operations in a Post proposal. The justification for initiating continue gathering information, Office, and the definition of a feasibility study, and the Vice- responsible personnel should also seek consolidation as not pertaining to President’s discretion to direct such to extend operations for the necessary personnel changes or to reclassification action, therefore pertain only to the duration, to the extent possible. of Post Offices as other types of Postal initial phase. Other references Paragraph 241.3(a)(5)(iv) also clarifies Service-operated retail facilities. throughout 39 CFR 241.3 have been that customers formerly served by a Therefore, the second sentence of 39 changed to ‘‘initial feasibility study,’’ Postal Service-operated retail facility in CFR 241.1(a) and the entirety of 39 CFR where appropriate, in order to clarify suspension status should receive the 241.3(a)(1)(iii), as proposed or modified, the intended scope of the relevant same level of notice throughout the are not included in the final rule at this provision. discontinuance process, including time. Other provisions pertinent to The phrase ‘‘severe safety and health notice by mail, as they would have if the consolidations will, for the time being, hazards’’ in proposed clause facility were not in suspension status. remain as they were under previous 241.3(a)(4)(i)(B) (renumbered as Paragraph 241.3(b)(4) has been regulations, with modifications only to (a)(5)(i)(B)) has been restated as revised to acknowledge that a reflect the inclusion of Postal Service-to- ‘‘irreparable damage when no suitable contractor-operated retail facility can, contractor conversions in the meaning alternate quarters are available in the but need not necessarily, retain the of ‘‘consolidation.’’ The initially community,’’ in order to avoid name of the pre-consolidation Postal proposed modifications, or potentially conflicting implications Service-operated retail facility, if modifications thereto, may be included under § 241.3(a)(5)(ii). appropriate. For example, some

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contractor-operated retail facilities may to avoid confusion with Vice Presidents, (B) Consolidate a USPS-operated post be integrated into the contractor’s Area Operations. office, station, or branch by combining business establishment, and the nature The Postal Service has determined it with another USPS-operated retail of the contract and level of service that the changes described herein are facility; or provided to customers might not be necessary to standardize and clarify the (C) Discontinue a USPS-operated post consistent with a separate name for the procedures of Part 241 with regard to office, station, or branch without postal retail facility. the discontinuance of USPS-operated providing a replacement facility. Paragraph 241.3(c)(1) has been retail facilities and to eliminate (ii) The regulations in this section are amended to delete the reference to the potential confusion regarding the mandatory only with respect to responsible Vice President as having policies governing these matters. discontinuance actions for which initial discretion to initiate a discontinuance Accordingly, the Postal Service has feasibility studies have been initiated on proposal. This phrase had been determined that this final rule should or after July 14, 2011. Unless otherwise erroneously included in the proposed take effect upon publication. The Postal provided by responsible personnel, the rule. Service hereby adopts the following rules under section 241.3 as in effect Paragraph 241.3(c)(3) has been revised changes to 39 CFR part 241. prior to July 14, 2011 shall apply to discontinuance actions for which initial such that postmasters and officers in List of Subjects in 39 CFR Part 241 charge must be invited to submit feasibility studies have been initiated comments, rather than indicating that Organization and functions prior to July 14, 2011. they must do so. The previous phrasing (government agencies), Postal Service. (2) Definitions. As used in this section, the following terms have the gave rise to confusion as to whether Accordingly, 39 CFR Part 241 is such personnel have the option of following meanings: amended as follows: (i) ‘‘USPS-operated retail facility’’ avoiding submission of comments. includes any Postal Service employee- Paragraph 241.3(d)(1) has been PART 241—RETAIL ORGANIZATION operated post office, station, or branch, revised to specify in greater detail the AND ADMINISTRATION: but does not include any station, Postal Service-operated retail facilities ESTABLISHMENT, CLASSIFICATION, branch, community post office, or other at which the proposal and comment AND DISCONTINUANCE retail facility operated by a contractor. notice must be posted, and to require (ii) ‘‘Contractor-operated retail additional copies of the proposal and ■ 1. The authority citation for 39 CFR Part 241 is revised to read as follows: facility’’ includes any station, branch, comment notice to be given to community post office, or other facility, customers upon request. The Authority: 39 U.S.C. 101, 401, 403, 404, including a private business, offering 410, 1001. description of the comment notice, retail postal services that is operated by which had also been in paragraph ■ 2. Revise § 241.1 to read as follows: a contractor, and does not include any 241.3(d)(1), has been moved to a new USPS-operated retail facility. paragraph 241.3(d)(2), and the § 241.1 Post offices. (iii) ‘‘Closing’’ means an action in succeeding paragraphs have been (a) Establishment. Post offices are which Post Office operations are renumbered accordingly. established and maintained at locations permanently discontinued without Paragraph 241.3(d)(2) (renumbered as deemed necessary to ensure that regular providing a replacement facility in the (d)(3)) has been revised to clarify that a and effective postal services are community. community meeting should be forgone available to all customers within (iv) ‘‘Consolidation’’ means either an only when exceptional circumstances specified geographic boundaries. action that converts a Postal Service- make a community meeting infeasible, (b) Classification. As of October 1 of operated retail facility into a contractor- such as where the community no longer each year, Post Offices are categorized operated retail facility, or an action that exists because of a natural disaster or through a cost ascertainment grouping converts an independent Post Office because residents have moved (CAG) process based on allowable postal into a Classified Station or Classified elsewhere. The revised paragraph also revenue units for the second preceding Branch. A resulting contractor-operated explains that the purpose of the fiscal year as follows: retail facility reports to a Postal Service- community meeting is to provide public (1) CAG A–G. Post offices having 950 operated retail facility; a resulting outreach and to gain public input, and or more revenue units. Classified Station or Classified Branch that it should occur during the comment (2) CAG H–J. Post offices having 190 reports to an administrative Post Office. period after a proposal has been posted. but less than 950 revenue units. (v) ‘‘Discontinuance’’ means either a Finally, one class of personnel (3) CAG K. Post offices having 36 but closure or a consolidation. authorized to make exceptions to the less than 190 revenue units. (3) Requirements. A District Manager community meeting requirement is (4) CAG L. Post offices having less or the responsible Headquarters Vice changed from the Manager, Delivery than 36 revenue units. President, or a designee of either, may Programs Support, to the applicable ■ 3. Revise § 241.3 to read as follows: initiate a feasibility study of a USPS- Vice President, Area Operations. operated facility for possible In the interest of consistency and § 241.3 Discontinuance of USPS-operated discontinuance. Any decision to close clarity, references to locations where retail facilities. or consolidate a USPS-operated retail materials are to be posted in (a) Introduction—(1) Coverage. (i) facility may be effected only upon the § 241.3(d)(3)(v) (renumbered as (d)(4)(v), This section establishes the rules consideration of certain factors. These (e)(2)(i), (f)(3), (g)(1)(i), (g)(1)(ii)(A), and governing the Postal Service’s include the effect on the community (g)(1)(ii)(B) have been revised to refer consideration of whether an existing served; the effect on employees of the back to the locations now specified in retail Post Office, station, or branch USPS-operated retail facility; § 241.3(d)(1). should be discontinued. The rules cover compliance with government policy References throughout the proposed any proposal to: established by law that the Postal rule to ‘‘responsible Vice President’’ (A) Replace a USPS-operated post Service must provide a maximum have been changed to ‘‘responsible office, station, or branch with a degree of effective and regular postal Headquarters Vice President,’’ in order contractor-operated retail facility; services to rural areas, communities,

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and small towns where post offices are (iii) The written determination must determining whether an appeal is filed not self-sustaining; the economic be made available to persons served by within the 30-day period, receipt by the savings to the Postal Service; and any the USPS-operated retail facility at least Commission is based on the postmark of other factors the Postal Service 60 days before the discontinuance takes the appeal, if sent through the mail, or determines necessary. In addition, effect. on other appropriate documentation or certain mandatory procedures apply as (iv) Within the first 30 days after the indicia, if sent through another lawful follows: written determination is made available, delivery method. (i) The public must be given 60 days’ any person regularly served by a Post (v) The Commission may only affirm notice of a proposed action to enable the Office subject to discontinuance may the Postal Service determination or persons served by a USPS-operated appeal the decision to the Postal return the matter for further retail facility to evaluate the proposal Regulatory Commission. Where persons consideration but may not modify the and provide comments. regularly served by another type of determination. (ii) After public comments are USPS-operated retail facility subject to (vi) The Commission is required to received and taken into account, any discontinuance file an appeal with the make any determination subject to 39 final determination to close or Postal Regulatory Commission, the U.S.C. 404(d)(5) no later than 120 days consolidate a USPS-operated retail General Counsel reserves the right to after receiving the appeal. facility must be made in writing and assert defenses, including the (vii) The following table summarizes must include findings covering all the Commission’s lack of jurisdiction over the notice and appeal periods defined required considerations. such appeals. For purposes of by statute.

PUBLIC NOTICE OF PROPOSAL

60-day notice

PUBLIC NOTICE OF FINAL DETERMINATION

30 days for filing any appeal Wait at least 60 days from first day after posting final determination be- Up to 120 days for appeal consideration and decision fore closing or consolidating USPS-operated retail facility.

(4) Additional requirements. This challenge to the sanctity of the mail, or USPS-operated retail facility under section also includes: similar reasons; study. Local management may (i) Rules to ensure that the (C) Earned workload below the determine whether notification is community’s identity as a postal minimum established level for the appropriate through media outlets. In address is preserved. lowest non-bargaining (EAS) employee addition, the following customers that (ii) Rules for consideration of a grade; receive delivery service from the USPS- proposed discontinuance and for its (D) Insufficient customer demand, operated retail facility must receive implementation, if approved. These evidenced by declining or low volume, notification and questionnaires by mail: rules are designed to ensure that the revenue, revenue units, local business (A) Post Office Box customers at the reasons leading to discontinuance of a activity, or local population trends; USPS-operated retail facility under particular USPS-operated retail facility (E) The availability of reasonable study; are fully articulated and disclosed at a alternate access to postal services for the (B) Customers whose delivery carrier stage that enables customer community served by the USPS- is stationed out of the USPS-operated participation to make a helpful operated retail facility; or retail facility under study; (C) Customers in the delivery area of contribution toward the final decision. (F) The incorporation of two communities into one or other special the same ZIP Code as the retail facility (5) Initial feasibility study. A District circumstances. under study, regardless of whether the Manager, the responsible Headquarters (ii) Impermissible circumstances. The delivery carriers for those customers are Vice President, or a designee of either following circumstances may not be stationed out of the retail facility under may initiate a feasibility study of a used to justify initiation of an initial study or out of a nearby facility; and USPS-operated retail facility’s potential feasibility study: (D) Customers whom the retail facility discontinuance, in order to assist the (A) Any claim that the continued under study serves for allied delivery District Manager in determining operation of a building without services such as mail pick-up. whether to proceed with a written handicapped modifications is (iv) Initial feasibility study due to proposal to discontinue the facility. inconsistent with the Architectural emergency suspension. Wherever (i) Permissible circumstances. The Barriers Act (42 U.S.C. 4151 et seq.); possible when an initial feasibility initial feasibility study may be based (B) The absence of running water or study is to be initiated under upon circumstances including, but not restroom facilities; § 241.3(a)(4)(i)(B) (for example, when it limited to, the following: (C) Compliance with the Occupational is anticipated that a lease or rental (A) A postmaster vacancy; Safety and Health Act of 1970 (29 U.S.C. agreement will be cancelled with no (B) Emergency suspension of the 651 et seq.); or suitable alternate quarters available in USPS-operated retail facility due to (D) In the absence of any the community), responsible personnel cancellation of a lease or rental circumstances identified in paragraph should initiate the initial feasibility agreement when no suitable alternate (a)(5)(i) of this section, the operation of study sufficiently in advance of the quarters are available in the community, a small Post Office at a deficit. circumstance prompting the emergency a fire or natural disaster, irreparable (iii) Notice to customers. Local suspension to allow a meaningful damage when no suitable alternate management must provide notification opportunity for public input to be taken quarters are available in the community, and questionnaires to customers at the into account. If public input cannot be

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sought sufficiently in advance of the facility that is replaced, if appropriate in post offices are not self-sustaining. The end date of the lease or rental light of the nature of the contract and proposal should: agreement, responsible personnel level of service provided. (A) Contrast the services available should endeavor, to the extent possible, (c) Initial proposal—(1) In general. If before and after the proposed change; to continue operation of the USPS- a District Manager believes that the (B) Describe how the changes respond operated retail facility for the duration discontinuance of a USPS-operated to the postal needs of the affected necessary to gather public input and retail facility within his or her customers; and make a more fully informed decision on responsibility may be warranted, the (C) Highlight particular aspects of whether to proceed with a District Manager: customer service that might be less discontinuance proposal. Customers (i) Must use the standards and advantageous as well as more formerly served by the suspended procedures in § 241.3(c) and (d). advantageous. facility should receive notice under (ii) Must investigate the situation. (ii) Effect on community. The paragraph (a)(4)(iii) of this section, (iii) May propose the USPS-operated proposal must include an analysis of the including by mail, to the same extent retail facility be discontinued. effect the proposed discontinuance that they would have if the facility were (2) Consolidation. The proposed might have on the community served, not in suspended status at the time of action may include a consolidation by and discuss the application of the the initial feasibility study, proposal, or replacement of a USPS-operated retail requirements in § 241.3(b). final determination. facility with a contractor-operated retail (iii) Effect on employees. The written (b) Preservation of community facility. The proposed action may also proposal must summarize the possible address—(1) Policy. The Postal Service include a consolidation by replacement effects of the change on postmasters and permits the use of a community’s of a post office with a classified station other employees of the USPS-operated separate address to the extent or classified branch if: retail facility considered for practicable. (i) The communities served by two or discontinuance. (2) ZIP Code assignment. The ZIP (iv) Savings. The proposal must more post offices are being merged into Code for each address formerly served include an analysis of the economic a single incorporated village, town, or from the discontinued USPS-operated savings to the Postal Service from the city; or retail facility should be kept, wherever proposed action, including the cost or (ii) A replacement facility is necessary practical. In some cases, the ZIP Code savings expected from each major factor for regular and effective service to the originally assigned to the discontinued contributing to the overall estimate. USPS-operated retail facility may be area served by the post office considered (v) Other factors. The proposal should changed if the responsible District for discontinuance. include an analysis of other factors that Manager receives approval from his or (3) Views of postmasters. Whether the the District Manager determines are her Vice President, Area Operations, discontinuance under consideration necessary for a complete evaluation of before any proposal to discontinue the involves a consolidation or not, the the proposed change, whether favorable USPS-operated retail facility is posted. District Manager must discuss the or unfavorable. (i) In a consolidation, the ZIP Code for matter with the postmaster (or the (vi) Summary. The proposal must the replacement contractor-operated officer in charge) of the USPS-operated include a summary that explains why retail facility, classified station, or retail facility considered for the proposed action is necessary, and classified branch is the ZIP Code discontinuance, and with the assesses how the factors supporting the originally assigned to the discontinued postmaster of any other USPS-operated proposed change outweigh any negative facility. retail facility affected by the change. factors. In taking competing (ii) If the ZIP Code is changed and the The District Manager should make sure considerations into account, the need to parent or gaining USPS-operated retail that these officials are invited to submit provide regular and effective service is facility covers several ZIP Codes, the written comments and suggestions as paramount. ZIP Code must be that of the delivery part of the record when the proposal is (vii) Notice. The proposal must area within which the facility is located. reviewed. include the following notices: (3) USPS-operated retail facility’s city (4) Preparation of written proposal. (A) Supporting materials. ‘‘Copies of name in address. If all the delivery The District Manager, or a designee, all materials on which this proposal is addresses using the city name of the must gather and preserve for the record based are available for public inspection USPS-operated retail facility being all documentation used to assess the at (Facility Name) during normal office discontinued continue to use the same proposed change. If the District Manager hours.’’ ZIP Code, customers may continue to thinks the proposed action is warranted, (B) Nature of posting. ‘‘This is a use the discontinued facility’s city name he or she, or a designee, must prepare proposal. It is not a final determination in their addresses, instead of that of the a document titled ‘‘Proposal to (Close) to (close) (consolidate) this facility.’’ new delivering USPS-operated retail (Consolidate) the (Facility Name).’’ This (C) Posting of final determination. ‘‘If facility. document must describe, analyze, and a final determination is made to close or (4) Name of facility established by justify in sufficient detail to Postal consolidate this facility, after public consolidation. If a post office is to be Service management and affected comments on this proposal are received consolidated with one or more other customers the proposed service change. and taken into account, a notice of that post offices by establishing in its place The written proposal must address each final determination will be posted in a classified station or classified branch of the following matters in separate this facility.’’ affiliated with another post office, the sections: (D) Appeal rights. ‘‘The final replacement unit is usually given the (i) Responsiveness to community determination will contain instructions same name of the facility that is postal needs. It is the policy of the on how affected customers may appeal replaced. If a USPS-operated retail Government, as established by law, that a decision to close or consolidate a post facility is to be consolidated by the Postal Service will provide a office to the Postal Regulatory establishing in its place a contractor- maximum degree of effective and Commission. Any such appeal must be operated retail facility, the replacement regular postal services to rural areas, received by the Commission within 30 unit can be given the same name of the communities, and small towns where days of the posting of the final

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determination.’’ The notice in this (i) If oral contacts develop views or possible how many comments support clause is provided when the USPS- information not previously documented, each point listed. operated retail facility under study is a whether favorable or unfavorable to the (2) Re-evaluation of proposal. After post office. For purposes of this clause, proposal, the District Manager should completing the analysis, the District the date of receipt by the Commission encourage persons offering the views or Manager must review the proposal and is based on the postmark of the appeal, information to provide written re-evaluate all the tentative conclusions if sent through the mail, or on other comments to preserve them for the previously made in light of additional appropriate documentation or indicia, if record. customer information and views in the sent through another lawful delivery (ii) As a factor in making his or her record. method. decision, the District Manager may not (i) Discontinuance not warranted. If (d) Notice, public comment, and rely on communications received from the District Manager decides against the record—(1) Posting proposal and anyone unless submitted in writing for proposed discontinuance, he or she comment notice. A copy of the written the record. must post, in the USPS-operated retail proposal and a signed invitation for (4) Record. The District Manager must facilities where the proposal was posted comments must be posted prominently, keep, as part of the record for under paragraph (d)(1) of this section, a with additional copies to be given to consideration and review, all notice stating that the proposed closing customers upon request, in the documentation gathered about the or consolidation is not warranted. following locations: proposed change. (ii) Discontinuance warranted. If the (i) The USPS-operated retail facility (i) The record must include all District Manager decides that the under study, unless service at the information that the District Manager proposed discontinuance is justified, facility has been suspended; considered, and the decision must stand the appropriate sections of the proposal (ii) The USPS-operated retail facility on the record. No written information or must be revised, taking into account the proposed to serve as the supervising views submitted by customers may be comments received from the public. facility; excluded. After making necessary revisions, the (ii) The docket number assigned to the (iii) Any USPS-operated retail facility District Manager must: proposal must be the ZIP Code of the likely to serve a significant number of (A) Transmit the revised proposal and office proposed for closing or customers of the USPS-operated retail the entire record to the responsible consolidation. facility under study; and Headquarters Vice President. (iv) If service at the facility under (iii) The record must include a (B) Certify that all documents in the study has been suspended, any USPS- chronological index in which each record are originals or true and correct operated retail facility providing document contained is identified and copies. alternative service for former customers numbered as filed. (f) Postal Service decision.—(1) In of the facility under study. (iv) As written communications are (2) Contents of comment notice. The received in response to the public notice general. The responsible Headquarters invitation for comments must: and invitation for comments, they are Vice President or a designee must (i) Ask interested persons to provide included in the record. review the proposal of the District written comments within 60 days, to a (v) A complete copy of the record Manager and decide on the merits of the stated address, offering specific must be available for public inspection proposal. This review and the decision opinions and information, favorable or during normal office hours at the USPS- must be based on and supported by the unfavorable, on the potential effect of operated retail facilities where the record developed by the District the proposed change on postal services proposal was posted under paragraph Manager. The responsible Headquarters and the community. (d)(1) of this section, beginning no later Vice President can instruct the District (ii) State that copies of the proposal than the date on which notice is posted Manager to provide more information to with attached optional comment forms and extending through the posting supplement the record. Each instruction are available in the affected USPS- period. When appropriate, certain and the response must be added to the operated retail facilities. personally identifiable information, record. The decision on the proposal of (iii) Provide a name and telephone such as individual names or residential the District Manager, which must also number to call for information. addresses, may be redacted from the be added to the record, may approve or (3) Other steps. In addition to publicly accessible copy of the record. disapprove the proposal, or return it for providing notice and inviting comment, (vi) Copies of documents in the record further action as set forth in this the District Manager must take any other (except the proposal and comment form) paragraph (f). steps necessary to ensure that the are provided on request and on payment (2) Approval. The responsible persons served by affected USPS- of fees as noted in chapter 4 of Headquarters Vice President or a operated retail facilities understand the Handbook AS–353, Guide to Privacy, designee may approve the proposed nature and implications of the proposed the Freedom of Information Act, and discontinuance, with or without further action. A community meeting must be Records Management. revisions. If approved without further held to provide outreach and gain (e) Consideration of public comments revision, the term ‘‘Final public input after the proposal is and final local recommendation—(1) Determination’’ is substituted for posted, unless otherwise instructed by Analysis of comments. The District ‘‘Proposal’’ in the title. A copy of the the responsible Headquarters Vice Manager or a designee must prepare an Final Determination must be provided President or the applicable Vice analysis of the public comments to the District Manager. The Final President, Area Operations. received for consideration and inclusion Determination constitutes the Postal Authorization to forgo a community in the record. If possible, comments Service determination for the purposes meeting should issue only where subsequently received should also be of 39 U.S.C. 404(d). exceptional circumstances make a included in the analysis. The analysis (i) Supporting materials. The Final community meeting infeasible, such as should list and briefly describe each Determination must include the where the community no longer exists point favorable to the proposal and each following notice: ‘‘Copies of all because of a natural disaster or because point unfavorable to the proposal. The materials on which this Final residents have moved elsewhere. analysis should identify to the extent Determination is based are available for

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public inspection at the (Facility Name) (ii) Ensure that a copy of the displayed for 30 days in all other USPS- during normal office hours.’’ completed record is available for public operated retail facilities where the Final (ii) Appeal rights. If the USPS- inspection during normal business Determination was posted under operated retail facility subject to hours at each USPS-operated retail paragraph (g)(1)(i) of this section. discontinuance is a post office, the Final facility where the Final Determination is (4) Actions following appeal decision Determination must include the posted for 30 days from the posting —(i) Determination affirmed. If the following notice: ‘‘Pursuant to Public date. Commission dismisses the appeal or Law 94–421 (1976), this Final (iii) Provide copies of documents in affirms the Postal Service’s Determination to (close) (consolidate) the record on request and payment of determination, the official closing date the (Facility Name) may be appealed by fees as noted in chapter 4 of Handbook of the office must be published in the any person served by that office to the AS–353, Guide to Privacy, the Freedom Postal Bulletin, effective anytime after Postal Regulatory Commission, 901 New of Information Act, and Records the Commission renders its opinion, if York Avenue, NW., Suite 200, Management. not previously implemented under Washington, DC 20268–0001. Any (2) Implementation of determinations § 241.3(g)(3)(i). However, the USPS- appeal must be received by the not appealed. If no appeal is filed, the operated retail facility may not be Commission within 30 days of the first official closing date of the office must be discontinued sooner than 60 days after day this Final Determination was published in the Postal Bulletin and the first day of the posting of the notice posted. If an appeal is filed, copies of effective, at the earliest, 60 days after required under § 241.3(g)(1). appeal documents prepared by the the first day that Final Determination (ii) Determination returned for further Postal Regulatory Commission, or the was posted. A District Manager may consideration. If the Commission parties to the appeal, must be made request a different date for official returns the matter for further available for public inspection at the discontinuance in the Retail Change consideration, the responsible (Facility Name) during normal office Announcement document submitted to Headquarters Vice President must direct hours.’’ the responsible Headquarters Vice that either: (3) Disapproval. The responsible President or a designee. However, the (A) Notice be provided under Headquarters Vice President or a USPS-operated retail facility may not be paragraph (f)(3) of this section that the designee may disapprove the proposed discontinued sooner than 60 days after proposed discontinuance is determined discontinuance and return it and the the first day of the posting of the notice not to be warranted or record to the District Manager with required by paragraph (g)(1) of this (B) The matter be returned to an written reasons for disapproval. The section. appropriate stage under this section for District Manager or a designee must (3) Actions during appeal—(i) further consideration following such post, in each affected USPS-operated Implementation of discontinuance. If an instructions as the responsible retail facility where the proposal was appeal is filed, only the responsible Headquarters Vice President may posted under paragraph (d)(1) of this Headquarters Vice President may direct provide. section, a notice that the proposed a discontinuance before disposition of closing or consolidation has been the appeal. However, the USPS-operated Stanley F. Mires, determined to be unwarranted. retail facility may not be permanently Chief Counsel, Legislative. (4) Return for further action. The discontinued sooner than 60 days after [FR Doc. 2011–17529 Filed 7–13–11; 8:45 am] responsible Headquarters Vice President the first day of the posting of the notice BILLING CODE 7710–12–P or a designee may return the proposal of required by paragraph (g)(1) of this the District Manager with written section. instructions to give additional (ii) Display of appeal documents. The ENVIRONMENTAL PROTECTION consideration to matters in the record, Office of General Counsel must provide AGENCY or to obtain additional information. the District Manager with copies of all Such instructions must be placed in the pleadings, notices, orders, briefs, and 40 CFR Part 52 record. opinions filed in the appeal proceeding. (5) Public file. Copies of each Final (A) The District Manager must ensure [EPA–R07–OAR–2010–1083; FRL–9434–7] that copies of all these documents are Determination and each disapproval of Finding of Substantial Inadequacy of prominently displayed and available for a proposal by the responsible Implementation Plan; Call for Iowa public inspection in the USPS-operated Headquarters Vice President must be State Implementation Plan Revision placed on file in the Postal Service retail facilities where the Final Headquarters library. Determination was posted under AGENCY: Environmental Protection (g) Implementation of final paragraph (g)(1)(i) of this section. If the Agency. determination—(1) Notice of final operation of that USPS-operated retail ACTION: Final rule. determination to discontinue USPS- facility has been suspended, the District operated retail facility. The District Manager must ensure that copies are SUMMARY: Pursuant to the Manager must: displayed in the USPS-operated retail Environmental Protection Agency’s (i) Provide notice of the Final facilities likely to be serving the affected (EPA) authority in the Clean Air Act Determination by posting a copy customers. (CAA or Act), section 110(k)(5), to call prominently in the USPS-operated retail (B) All documents except the Postal for plan revisions, EPA is making a facilities in each affected USPS-operated Regulatory Commission’s final order finding that the Iowa State retail facilities where the proposal was and opinion must be displayed until the Implementation Plan (SIP) is posted under paragraph (d)(1) of this final order and opinion are issued. The substantially inadequate to maintain the section, including the USPS-operated final order and opinion must be 2006 24-hour National Ambient Air retail facilities likely to be serving the displayed at the USPS-operated retail Quality Standard (NAAQS) for Fine affected customers. The date of posting facility to be discontinued for 30 days Particulate Matter (PM2.5) in Muscatine must be noted on the first page of the or until the effective date of the County, Iowa. The specific SIP posted copy as follows: ‘‘Date of discontinuance, whichever is earlier. deficiencies needing revision are posting.’’ The final order and opinion must be described below. EPA is also finalizing

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a timeline for Iowa to revise its SIP to on the proposed rule and EPA’s comply with the NAAQS, the area is correct these deficiencies by a date responses are found in Section IV. designated attainment. If there is not which is no later than 18 months after EPA’s finding is based on complete, enough information to determine if an the effective date of this rule. quality-assured, quality controlled and area is compliant with the NAAQS it is DATES: This final rule is effective on certified ambient monitoring data from designated as unclassifiable. On August 15, 2011. the 2007–2009 monitoring period. Based November 13, 2009, EPA promulgated ADDRESSES: EPA has established a on the 2010 monitoring data in Iowa’s its final designations for the 2006 docket for this action under Docket ID Certification Request, the Muscatine 24-hour PM2.5 standards (74 FR 58688). No. EPA–R07–OAR–2010–1083. All area continues to violate the 2006 24- These designations were determined documents in the docket are listed on hour PM2.5 standard based on the 2008– based upon air quality monitoring data the http://www.regulations.gov Web 2010 monitoring data with a design for calendar years 2006–2008 (which site. value of 37 micrograms per cubic meter were the most recent three years of data μ 3 Docket: All documents in the ( g/m ). prior to the initial designations). The entire State of Iowa was designated as electronic docket are listed in the II. What is the background of this unclassifiable/attainment (74 FR 58729) http://www.regulations.gov index. action? Although listed in the index, some at that time based on that set of data. EPA promulgated the 2006 24-hour On May 20, 2010, the State submitted information is not publicly available, NAAQS for PM2.5 on October 17, 2006 certified SLAMS monitoring data, for e.g., Confidential Business Information (71 FR 61144) based on significant calendar year 2009, in accordance with or other information whose disclosure is evidence and numerous health studies 40 CFR Part 58. When determining the restricted by statute. Certain other demonstrating that serious health effects design value for the current 24-hour material, such as copyrighted material, are associated with exposures to fine PM standard based upon air quality will be publicly available only in hard 2.5 particulate matter. The 2006 standard monitoring data for calendar years copy. Publicly available docket for 24-hour PM2.5 was set at a level of 2007–2009, EPA concluded that a materials are available either 35 μg of particulate matter less than 2.5 monitor in the Muscatine area recorded electronically in http:// micrometers (μm) in diameter, per cubic data violating the standard. The monitor www.regulations.gov or in hard copy at meter of air. The standard is met when (site ID# 191390015) is located in the the Environmental Protection Agency, the 3-year average of the 98th percentile City of Muscatine, Muscatine County, Air Planning and Development Branch, of 24-hour concentrations is equal to or Iowa, and is the only PM2.5 SLAM 901 North 5th Street, Kansas City, less than 35 μg/m3. The computation of station in the county. The SLAM Kansas 66101. EPA requests that you this 3-year average of the 98th stations make up the ambient air quality contact the person listed in the FOR percentiles of 24-hour concentrations is monitoring sites that are primarily FURTHER INFORMATION CONTACT section to commonly referred to as the design needed for NAAQS comparisons. Site schedule your inspection. The value and is based on the most recent ID# 191390015 is often referred to as the interested persons wanting to examine three years of quality assured data. ‘‘Garfield School’’ monitor and will be these documents should make an Section 110(a)(2)(B) requires each referred to as such in this rulemaking. appointment with the office at least 24 state to establish and operate The 2007–2009 design value for the hours in advance. appropriate devices, methods, systems Garfield School monitor is 38 μg/m3. FOR FURTHER INFORMATION CONTACT: and procedures necessary to monitor, Historically, the Garfield School Steven Brown at (913) 551–7718 or by compile and analyze data on ambient air monitoring location has recorded e-mail at [email protected]. quality. Pursuant to this authority, the fluctuating PM2.5 values very near or SUPPLEMENTARY INFORMATION: state maintains a network of air quality above the NAAQS. Historical values are Throughout this document whenever monitors for PM2.5 in accordance with shown in Table 1. The monitoring data ‘‘we,’’ ‘‘us,’’ or ‘‘our’’ is used, we mean 40 CFR Part 58 which meets applicable in Iowa’s Certification Request for 2010 EPA. This section provides additional requirements. Monitors called State or indicates that the Muscatine area information by addressing the following Local Air Monitoring Stations (SLAMS) continues to violate the 2006 24-hour questions: make up the ambient air quality standard based on 2008–2010 monitoring sites whose data are I. What action is EPA taking? monitoring data. II. What is the background of this action? primarily used for determining The area was not designated III. How can Iowa correct the inadequacy and compliance with the NAAQS. nonattainment at the time of EPA’s when must the correction be submitted? In accordance with section initial designations rulemaking for the IV. What are EPA’s comment responses? 107(d)(1)(B) of the CAA, no later than 2006 24-hour PM2.5 standard in 2009, V. What action is EPA taking? 2 years after promulgation of a new or because, at that time, available certified revised NAAQS, the Administrator must I. What action is EPA taking? monitoring data demonstrated that the designate all areas, or portions thereof, design value was compliant with the EPA is finding that the Iowa SIP is within each state as nonattainment, standard. substantially inadequate to maintain the attainment or unclassifiable. This 2006 24-hour NAAQS for PM2.5 in process is commonly referred to as the TABLE 1—HISTORICAL DESIGN VALUES Muscatine County, Iowa. EPA is also ‘‘designations process.’’ AT THE GARFIELD SCHOOL MONITOR finalizing a timeline for Iowa to revise With respect to all pollutants, its SIP to correct these deficiencies by including PM , if monitoring data 2.5 Monitoring years Design a date no later than 18 months after the demonstrates that an area does not value effective date of this rule. EPA proposed comply with the NAAQS, or contributes this rule on February 2, 2011 (76 FR to a violation in a nearby area, that area 2001–2003 ...... 35 2002–2004 ...... 35 9706). EPA received comments from the is designated as nonattainment. If 2003–2005 ...... 38 State of Iowa Department of Natural monitoring data demonstrates that an 2004–2006 ...... 34 Resources (IDNR), the Iowa area complies with the NAAQS, and the 2005–2007 ...... 36 Environmental Council, and 15 Iowa area does not contribute to air quality 2006–2008 ...... 35 citizens. A summary of these comments problems in nearby areas that do not 2007–2009 ...... 38

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TABLE 1—HISTORICAL DESIGN VALUES data). In this instance, the CAA This rule requires the State to AT THE GARFIELD SCHOOL MON- requirements relating to nonattainment establish a specific date in its SIP ITOR—Continued areas are not expressly applicable. revision by which the Muscatine area Therefore, consistent with the general will attain the standard. The date must SIP requirements in section 110 of the be as expeditiously as practicable based Monitoring years Design value CAA, and as discussed in the February upon implementation of Federal, State 2, 2011, proposed SIP Call. (76 FR and local measures. As discussed 2008–2010 ...... 37 9706), EPA is requiring a SIP revision previously, we expect that the date for which includes adopted measures to attainment (for the purpose of this rule, Section 110(k)(5) of the CAA achieve reductions determined the date by which the 98th percentile 24 provides, in relevant part, that necessary to attain and maintain the hour PM2.5 value must be at or below 35 ‘‘[w]henever the Administrator finds NAAQS, as well as contingency μg/m3) will be the first full calendar that the applicable implementation plan measures, as described below. year following the required for an area is substantially inadequate to Consistent with the February 2, 2011, implementation of controls. In this case, attain or maintain the relevant national proposal, all adopted measures to the date will be the first full calendar ambient air quality standard, * * * the achieve reductions, determined through year which begins after the two year Administrator shall require that state to the modeling demonstration to be anniversary of the effective date of this revise the plan as necessary to correct necessary to attain and maintain the rule. EPA will establish a specific date such inadequacies.’’ 2006 24-hour PM2.5 standard, should be for attainment at the same time it takes Because monitor data in the final action on the State’s Muscatine area show violations of the implemented no later than two years after the issuance of this final SIP Call. implementation plan revision in 2006 24-hour PM2.5 standard, based EPA believes that this schedule is response to this final SIP Call. upon 2007–2009 data, and have shown Notwithstanding the date for violations of the standard in the past reasonable, because IDNR has already performed a substantial portion of its attainment, the 2006 24-hour PM2.5 (based upon 2005–2007 data), EPA has standard can only be achieved when the analysis of the nature of the PM2.5 determined that the SIP is substantially average of three consecutive years of inadequate to maintain the 2006 24- problem in the area and the types of controls which might be necessary to data show those PM2.5 concentrations hour NAAQS for PM2.5 in this area. EPA address the problem. are at or below the levels of the 2006 received no comments on the 24-hour standard. monitoring data or proposed finding of EPA believes that it is reasonable to substantial inadequacy. Accordingly, expect that the 98th percentile value for IV. What is EPA’s response to EPA is finalizing the proposed action the calendar year after the necessary comments? and Iowa must revise the SIP as controls are implemented should be at As stated above, on February 22, described herein. or below the 24-hour PM2.5 standard. 2011, EPA proposed to find that the Contingency measures will be triggered Iowa SIP was substantially inadequate III. How can the State correct the if that value is above the standard in the to maintain the 2006 24-hour PM2.5 inadequacy and when must the calendar year after the implementation correction be submitted? NAAQS (76 FR 9106). EPA received 17 of controls necessary for attainment, or comments on the proposed rule. We The State must submit several specific in any subsequent year. The SIP note that all of the comments related to plan elements to EPA in order to correct revision must contain an enforceable the proposed remedy (the timing and the inadequacy of the SIP identified commitment to adopt and implement content of the SIP to be required as a above. These specific elements are: (1) sufficient contingency measures, once result of the SIP call). EPA received no A revised emissions inventory for all triggered, in an expeditious and timely comments on the underlying proposed sources (including area sources, mobile fashion that is comparable and finding of substantial inadequacy and sources and other significant sources) analogous to requirements for we are finalizing that finding on the that could be expected to contribute to contingency measures in CAA section basis of the rationale stated in EPA’s the violating monitor because of their 175A(d). To do so, the SIP revision February 2, 2011, proposal and in size, proximity, or other relevant factors should clearly identify measures which section II, above. Below we set forth a consistent with 40 CFR 51.114(a); (2) a could be timely adopted and summary of the comments regarding the modeling demonstration consistent with implemented, a schedule and procedure proposed remedy and EPA’s responses: Appendix W to 40 CFR part 51 showing for adoption and implementation, and a Comment 1: Fifteen citizens what reductions will be needed to attain specific time limit for action by the commented that the new SIP should be and maintain the PM2.5 NAAQS in the State. The schedule for adoption and completed in less than 18 months. area; (3) adopted measures to achieve implementation should be as Response: The CAA section 110(k)(5) reductions determined necessary to expeditious as practicable, but no longer requires that whenever the attain and maintain the NAAQS, with than 24 months after being triggered. Administrator finds that the applicable enforceable schedules for implementing Section 110(k)(5) of the CAA provides implementation plan for any area is the measures as expeditiously as that after EPA makes a finding that a substantially inadequate to attain or practicable; and (4) contingency plan is substantially inadequate, it may maintain the relevant NAAQS, the measures as described below. establish a reasonable deadline for the Administrator shall require the state to The Muscatine area is currently State to submit SIP revisions correcting revise the plan as necessary to correct designated as attainment of the 2006 24- the deficiencies, but the date cannot be such inadequacies. The Administrator hour PM2.5 standard, however, EPA later than 18 months after the State is shall notify the state of the inadequacies finds the SIP substantially inadequate to notified of the finding. Consistent with and may establish reasonable deadlines maintain the 2006 24-hour NAAQS for this provision, EPA is requiring the (not to exceed 18 months after the date PM2.5, due to the monitor in the submittal within 18 months following of such notice) for the submission of Muscatine area (Garfield School) the final finding of substantial such plan revisions. EPA believes the 18 recording data violating the standard inadequacy. The 18-month period month deadline for Iowa to submit its (considering 2007–2009 monitoring begins on the effective date of this rule. revised SIP is appropriate.

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In order to revise the SIP, the State compliance can be achieved earlier than emissions reductions from contributing must conduct modeling; analyze the the two year outside date, then sources sufficient to bring the area back modeling; and determine what emission compliance would be required by the into attainment with the health-based reductions are needed and the earlier date. Therefore, EPA has PM NAAQS. Further opportunity for appropriate emission controls to achieve determined that this deadline is public review of the State’s plan will be those reductions. The rulemaking reasonable. provided by the State and EPA. process includes the opportunity for the Comment 3: Two citizens commented Comment 5: One citizen commented public to comment on the proposed SIP regarding the health effects of high on the exceedances of the ambient air revisions, including the proposed levels of air pollution in Muscatine. One monitors at the Garfield monitor noting emission controls, at the State level. commenter states that Muscatine ongoing exceedances of the standard. Once the public has been given residents experience high incidences of Response: As explained in Section II, adequate opportunity to submit lung disease, cardiac problems, renal EPA has analyzed the historical and comments, the State must respond to and other serious life threatening current monitoring data and has reached those comments, finalize its plan, and illnesses, as well as death that may be the conclusion that the area is not then submit it to EPA for review and caused by ‘‘air toxicants’’ including achieving the standard. EPA agrees that approval. In order to have a complete PM2.5 and sulfur dioxide (SO2). the Garfield monitor has shown Response: EPA acknowledges the submittal for EPA review, the State must exceedances of the 2006 24-hour PM2.5 ensure EPA that all of the requirements health effects of high levels of PM2.5 and standard. EPA is taking this action to in 40 CFR part 51, Appendix V are met, SO2. The adverse health effects of the address the resulting violations of the including for example, a control strategy high concentrations of these pollutants NAAQS to bring the Muscatine area into demonstration with adequate are the primary considerations EPA attainment. takes into account when setting the justification which has been fully vetted Comment 6: IDNR commented that NAAQS levels. The primary NAAQS through the public process. EPA should be more flexible regarding levels are intended to be protective of As described above, the process for the modeling demonstration required as human health. EPA has determined that developing and finalizing the State’s part of the SIP. IDNR stated that the the Muscatine area is not meeting the plan can take a significant amount of modeling requirement for this SIP call current 24-hour NAAQS for PM and, time, much of which is used to allow 2.5 should allow for the use of the modeling the public (as well as affected sources) therefore, the current level of air quality protocol developed by Iowa as well as time to comment on the proposal. is not protective of human health. This future EPA guidance and procedures Therefore, EPA has determined that the action will help ensure that the that may not be part of Appendix W. 18 month timeframe is reasonable for Muscatine area air quality returns to Response: The proposed rule states submission of the plan. levels of PM2.5 concentrations that are Comment 2: Fourteen citizens protective of human health. that the modeling demonstration should commented that the adopted measures EPA is also addressing air quality be consistent with Appendix W. EPA does not read this language as to achieve reductions determined issues related to SO2 through the new necessary to attain and maintain the NAAQS standard promulgated on June precluding the use of Iowa’s modeling protocol and any future guidance. 2006 24-hour PM2.5 NAAQS should be 22, 2010, by EPA (72 FR 35520). The implemented in less than two years. attainment status of the Muscatine area Appendix W provides the guidelines to Response: As stated in the response to with respect to the SO2 one-hour establish the modeling protocol and Comment 1, section 110(k)(5) of the NAAQS is yet to be determined. specifically allows for the use of CAA requires the State to submit a Nonattainment areas will be required to alternative models. 40 CFR part 51, revised SIP to EPA within 18 months of develop plans addressing the CAA Appendix W, Section 3.2. EPA will the date of this action, and EPA has nonattainment area requirements for approve the use of alternatives if determined that the 18 month deadline SO2. In the preamble to the rule, EPA appropriate and adequately justified. is reasonable for submission of the SIP. also describes how most areas not Any future guidance will be addressed If, as anticipated, IDNR cannot complete designated as nonattainment for the SO2 at the time it is issued. the SIP sooner than 18 months after this NAAQS will be required to develop a Comment 7: IDNR commented that it final action, sources would then be plan to maintain the standard (72 FR is not reasonable to expect that the required to implement controls within 35520, 35552–35554). Therefore, the design value during the calendar year 6 months after the revised SIP has been State will also need to address SO2 after the necessary controls are developed and submitted. As discussed emissions in the Muscatine area in implemented should be at or below the above, the State and affected sources implementing the applicable 24-hour PM2.5 standard. Further, IDNR will not know which specific controls requirements for the SO2 NAAQS. commented that the determination that will be required until the SIP has gone Comment 4: Two citizens commented the attainment date has been met should through the State rulemaking process, on the emissions seen at or near Grain be based on data representative of including opportunity for public Processing Corporation (GPC). A conditions after the implementation of comment. Depending on the nature of commenter stated that residents who controls. IDNR also commented that the the final controls selected, it may not be live near GPC must either stay indoors attainment date should be determined reasonable to establish a deadline or be exposed to air pollutants when the within two years following the shorter than two years after EPA boilers are fired. implementation of controls and should promulgates the final SIP call rule. In Response: As a result of this action, be assessed using the 98th percentile the proposal EPA stated that this two IDNR is required to submit a SIP that concentrations. IDNR stated that if the year deadline is an outside date, and will demonstrate how the Muscatine 98th percentile concentrations for the that compliance with the control area will reach attainment of the health- first and second calendar years after strategy necessary to achieve the based PM2.5 NAAQS. As part of the SIP controls are implemented are below the standard should be as expeditious as development, Iowa will conduct an level of the NAAQS, a deferment or practicable, but no later than that date. analysis of the sources contributing to extension of the attainment date should If, during the SIP development process, exceedances of the standard, which will occur, even if the design value is over the State or EPA determines that include GPC. The State will require the standard.

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Response: EPA believes it is expeditious and timely fashion that is 1. Finds that the SIP is substantially reasonable to expect the monitored comparable and analogous to inadequate to maintain the NAAQS for values in the area to be below the level requirements for contingency measures 24-hour PM2.5 in the area; of the NAAQS in the year after in CAA section 175A(d). EPA did not 2. Requires that Iowa revise and installation of controls. IDNR has state or intend to imply that section submit to EPA a SIP to meet all of the already done a substantial analysis of air 175A(d) is literally applicable to the applicable requirements of section 110 quality and the sources that contribute Muscatine area, but rather provided that of the Act with respect to PM2.5 in the to the PM2.5 problems in the area. The IDNR follow 175A(d) as a guide for area, including an emissions inventory, modeling should identify all of the developing and implementing its modeled attainment demonstration, emissions reductions which are contingency measures. Contrary to adopted control measures and necessary to attain the standard. The SIP commenter’s contention, section contingency measures as described in should also identify the controls which 175A(d) contingency measures are not EPA’s February 2, 2011, proposal; will result in the required emissions designed for implementation in 3. Requires the State to submit reductions. As discussed in Section III, nonattainment areas, but rather for revisions to the SIP within 18 months of above, the date for implementation of implementation after areas have been the effective date of this rule; controls should be two years after the redesignated to attainment. In other 4. Requires that all adopted measures effective date of this final rule (in 2013), contexts as well, EPA has looked to to achieve reductions determined and the date for attainment will be the section 175A as a guide for attainment necessary to attain and maintain the first full calendar year following the area maintenance plan contingency 2006 24-hour PM2.5 standard be required implementation of controls, i.e. measures. For example, EPA used implemented no later than two years 2014. For clarification, the calculation section 175A(d) as a model for after the issuance of this rule; of this value would only consider the air maintenance plan contingency measures 5. Requires that the SIP provide for quality data in the calendar year after for certain areas designated attainment attainment and maintenance of the 2006 the controls are fully implemented, and for the 1997 8-hour ozone standard, see 24-hour PM2.5 NAAQS in the Muscatine thus would not include the data from Memorandum from Lydia N. Wegman to County, Iowa area as expeditiously as the previous two years (prior to Air Division Directors, Maintenance practicable, beginning (as described in controls, i.e. 2012 and 2013). In other Plan Guidance Document for Certain response to Comment 7) no later than words, in the year after implementation 8-hour Ozone Areas Under Section the calendar year after the of controls (2014), the 98th percentile of 110(a)(1) of Clean Air Act, May 20, 2005 implementation of controls necessary 24-hour concentrations should be equal and attainment area section 110(a)(1) for attainment (two years after the to or less than 35 μg/m3. maintenance plans following this effective date of this rule). This action is a SIP Call under section guidance. Thus EPA’s invocation of Statutory and Executive Order Reviews 110(k)(5). The area has not yet been section 175A(d) with respect to the designated as nonattainment and Muscatine area is consistent with the Under the CAA, a finding of therefore, there is no statutory process purpose of that section and EPA’s past substantial inadequacy and subsequent for extending the ‘‘attainment date.’’ practice. EPA did not receive comments obligation for a State to revise its SIP Through this action, EPA is setting forth on whether any additional contingency arise out of section 110(a) and 110(k)(5). a date by which the area must meet the measure triggers would be appropriate, The finding and State obligation do not NAAQS standard. or whether contingency measures directly impose any new regulatory Comment 8: IDNR commented that should be adopted in advance and requirements. In addition, the State because Muscatine is not currently implemented automatically once obligation is not legally enforceable by designated as a nonattainment area, triggered. Therefore, EPA is adopting its a court of law. EPA would review its therefore, it is not clear why proposed approach and requiring that intended action on any SIP submittal in contingency measures analogous to the SIP submission include contingency response to the finding in light of those specified in CAA section 175A(d) measures using 175A(d) as a guide in applicable statutory and Executive are appropriate for the area. developing the measures. The specific Order requirements, in subsequent Response: Although this area is not requirements for contingency measures rulemaking acting on such SIP designated as a nonattainment area, the for this plan are described in section III, submittal. For those reasons, this rule: area currently is not attaining the above. • Is not a ‘‘significant regulatory NAAQS, and appears in the past to have Comment 9: The Iowa Environmental action’’ subject to review by the Office gone in and out of attainment. EPA is Council (IEC) commented that EPA of Management and Budget under taking this action to call for a SIP which should issue its final SIP call at the Executive Order 12866 (58 FR 51735, includes a control strategy to ensure that earliest possible date so that corrective October 4, 1993); the area attains and then continues to actions can be put into practice quickly. • Does not impose an information maintain the standard. To ensure that IEC also commented on the health collection burden under the provisions the area continues to maintain the effects of high levels of PM2.5 in the of the Paperwork Reduction Act (44 standard in the future, EPA has Muscatine area. Finally, the commenter U.S.C. 3501 et seq.); concluded that the State must develop stated that it is imperative that IDNR • Is certified as not having a contingency measures which would assure that Muscatine reduces its PM2.5 significant economic impact on a address any future violations after the concentrations and prove that these substantial number of small entities control strategy to achieve attainment reductions can at last be maintained in under the Regulatory Flexibility Act has been successfully implemented. The the long run. (5 U.S.C. 601 et seq.); proposed rule states that the SIP Response: See responses to comments • Does not contain any unfunded submission must contain an enforceable 1, 3, and 8 above. mandate or significantly or uniquely commitment to adopt and implement affect small governments, as described sufficient contingency measures, once V. What actions is EPA taking? in the Unfunded Mandates Reform Act triggered (i.e., once the 98th percentile EPA is taking the following actions of 1995 (Pub. L. 104–4); of 24-hour concentrations for a relating to the Iowa SIP for PM2.5 for • Does not have Federalism particular year exceeds 35 μg/m3), in an Muscatine County. EPA: implications as specified in Executive

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Order 13132 (64 FR 43255, August 10, substantial direct costs on tribal Administrator of this final rule does not 1999); governments or preempt tribal law. affect the finality of this action for the • Is not an economically significant The Congressional Review Act, 5 purposes of judicial review nor does it regulatory action based on health or U.S.C. 801 et seq., as added by the Small extend the time within which a petition safety risks subject to Executive Order Business Regulatory Enforcement for judicial review may be filed, and 13045 (62 FR 19885, April 23, 1997); shall not postpone the effectiveness of • Fairness Act of 1996, generally provides Is not a significant regulatory action that before a rule may take effect, the such rule or action. This action may not subject to Executive Order 13211 (66 FR agency promulgating the rule must be challenged later in proceedings to 28355, May 22, 2001); submit a rule report, which includes a enforce its requirements. (See section • Is not subject to requirements of copy of the rule, to each House of the 307(b)(2)). section 12(d) of the National Congress and to the Comptroller General Technology Transfer and Advancement Statutory Authority of the United States. EPA will submit a Act of 1995 (15 U.S.C. 272 note) because application of those requirements would report containing this action and other The statutory authority for this action be inconsistent with the CAA; and required information to the U.S. Senate, is provided by sections 110 and 301 of • Does not provide EPA with the the U.S. House of Representatives, and the CAA, as amended (42 U.S.C. 7410 discretionary authority to address, as the Comptroller General of the United and 7601). States prior to publication of the rule in appropriate, disproportionate human List of Subjects in 40 CFR Part 52 health or environmental effects, using the Federal Register. A major rule practicable and legally permissible cannot take effect until 60 days after it Environmental protection, Air methods, under Executive Order 12898 is published in the Federal Register. pollution control, Incorporation by (59 FR 7629, February 16, 1994). This action is not a ‘‘major rule’’ as reference, Iowa, Particulate matter, State In addition, this rule does not have defined by 5 U.S.C. 804(2). implementation plan. tribal implications as specified by Under section 307(b)(1) of the CAA, Dated: June 28, 2011. Executive Order 13175 (65 FR 67249, petitions for judicial review of this November 9, 2000), because the finding action must be filed in the United States Karl Brooks, of SIP inadequacy would not apply in Court of Appeals for the appropriate Regional Administrator, Region 7. Indian country located in the State, and circuit by September 12, 2011. Filing a [FR Doc. 2011–17235 Filed 7–13–11; 8:45 am] EPA notes that it will not impose petition for reconsideration by the BILLING CODE 6560–50–P

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Proposed Rules Federal Register Vol. 76, No. 135

Thursday, July 14, 2011

This section of the FEDERAL REGISTER Examining the AD Docket This condition, if not corrected, could contains notices to the public of the proposed You may examine the AD docket on result in engine failure and damage to issuance of rules and regulations. The the airplane. purpose of these notices is to give interested the Internet at http:// persons an opportunity to participate in the www.regulations.gov; or in person at the FAA’s Determination Docket Management Facility between rule making prior to the adoption of the final We are proposing this AD because we 9 a.m. and 5 p.m., Monday through rules. evaluated all the relevant information Friday, except Federal holidays. The AD and determined the unsafe condition docket contains this proposed AD, the DEPARTMENT OF TRANSPORTATION regulatory evaluation, any comments described previously is likely to exist or received, and other information. The develop in other products of the same Federal Aviation Administration street address for the Docket Office type design. (phone: 800–647–5527) is in the Proposed AD Requirements 14 CFR Part 39 ADDRESSES section. Comments will be This proposed AD would require available in the AD docket shortly after removing the HPT stage 1 airseal, P/N [Docket No. FAA–2011–0733; Directorate receipt. 50L879; the HPT stage 2 airseal, P/N Identifier 2010–NE–36–AD] FOR FURTHER INFORMATION CONTACT: 53L030; and the HPT airseal ring, P/N James Gray, Aerospace Engineer, Engine 50L664, prior to their published life RIN 2120–AA64 Certification Office, FAA, 12 New limits, using a drawdown plan. England Executive Park, Burlington, MA Airworthiness Directives; Pratt & 01803; phone: 781–238–7742; fax: 781– Costs of Compliance Whitney Division (PW) PW4000 Series 238–7199; e-mail: [email protected]. We estimate that this proposed AD Turbofan Engines SUPPLEMENTARY INFORMATION: would affect 869 engines installed on airplanes of U.S. registry. We also AGENCY: Federal Aviation Comments Invited Administration (FAA), DOT. estimate that, because the removals We invite you to send any written would be performed at piece-part level, ACTION: Notice of proposed rulemaking relevant data, views, or arguments about (NPRM). no additional work-hours would be this proposal. Send your comments to required. Prorated life for the HPT SUMMARY: We propose to adopt a new an address listed under the ADDRESSES would be about $46,835 per engine. airworthiness directive (AD) for certain section. Include ‘‘Docket No. FAA– Based on these figures, we estimate the PW4000 turbofan engines. This 2011–0733; Directorate Identifier 2010– total cost of the proposed AD to U.S. proposed AD was prompted by an NE–36–AD’’ at the beginning of your operators to be $40,699,615. comments. We specifically invite updated low-cycle fatigue (LCF) life Authority for This Rulemaking analysis performed by Pratt & Whitney. comments on the overall regulatory, This proposed AD would require economic, environmental, and energy Title 49 of the United States Code removing certain part number (P/N) aspects of this proposed AD. We will specifies the FAA’s authority to issue high-pressure turbine (HPT) stage 1 and consider all comments received by the rules on aviation safety. Subtitle I, HPT stage 2 airseals and HPT stage 1 closing date and may amend this section 106, describes the authority of airseal rings before their published life proposed AD because of those the FAA Administrator. Subtitle VII: limit, and establishes a new lower life comments. Aviation Programs, describes in more limit for these parts. We are proposing We will post all comments we detail the scope of the Agency’s this AD to correct the unsafe condition receive, without change, to http:// authority. on these products. www.regulations.gov, including any We are issuing this rulemaking under personal information you provide. We the authority described in Subtitle VII, DATES: We must receive comments on will also post a report summarizing each Part A, Subpart III, Section 44701: this proposed AD by August 29, 2011. substantive verbal contact we receive ‘‘General requirements.’’ Under that ADDRESSES: You may send comments, about this proposed AD. section, Congress charges the FAA with using the procedures found in 14 CFR promoting safe flight of civil aircraft in Discussion 11.43 and 11.45, by any of the following air commerce by prescribing regulations methods: A PW2000 field event led Pratt & for practices, methods, and procedures • Federal eRulemaking Portal: Go to Whitney to re-evaluate the low-cycle the Administrator finds necessary for http://www.regulations.gov. Follow the fatigue (LCF) lives of its PW2000 engine, safety in air commerce. This regulation instructions for submitting comments. and similar engines models, including is within the scope of that authority • Fax: 202–493–2251. the PW4000 engine and its high- because it addresses an unsafe condition • Mail: U.S. Department of pressure turbine (HPT). Pratt and that is likely to exist or develop on Transportation, Docket Operations, Whitney’s updated analysis indicated products identified in this rulemaking M–30, West Building Ground Floor, that the current certified life limits for action. Room W12–140, 1200 New Jersey the PW4000 HPT stage 1 and stage 2 air Avenue, SE., Washington, DC 20590. seals and air seal rings should be Regulatory Findings • Hand Delivery: Deliver to Mail reduced to prevent failure of those life We determined that this proposed AD address above between 9 a.m. and limited parts. The current certified life would not have federalism implications 5 p.m., Monday through Friday, except limits, if not reduced, present an under Executive Order 13132. This Federal holidays. unacceptable level of risk of part failure. proposed AD would not have a

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substantial direct effect on the States, on PART 39—AIRWORTHINESS PW4156A, PW4158, PW4160, PW4460, and the relationship between the national DIRECTIVES PW4462 engines that have incorporated Pratt Government and the States, or on the & Whitney Service Bulletins (SBs) PW4ENG 1. The authority citation for part 39 72–490, or PW4ENG 72–504, or PW4ENG 72– distribution of power and continues to read as follows: 512, or PW4ENG 72–572, or PW4ENG 72– responsibilities among the various 588, or PW4ENG 73–150, or Engineering Authority: 49 U.S.C. 106(g), 40113, 44701. levels of government. Change Number EC92KK322G, H, I, J, and K, For the reasons discussed above, I § 39.13 [Amended] as indicated with a (–3), or (–3A), or (–3B) certify this proposed regulation: suffix on the engine data plate. 2. The FAA amends § 39.13 by adding (ii) PW4000–94’’ engines models PW4050, (1) Is not a ‘‘significant regulatory the following new airworthiness PW4052, PW4056, PW4152, PW4156, and action’’ under Executive Order 12866, directive (AD): PW4650 engines that have incorporated Pratt (2) Is not a ‘‘significant rule’’ under Pratt & Whitney Division: Docket No. FAA– & Whitney SBs PW4ENG 72–490, or PW4ENG 72–504, or PW4ENG 72–512, or the DOT Regulatory Policies and 2011–0733; Directorate Identifier 2010– NE–36–AD. PW4ENG 72–572, or PW4ENG 72–588, or Procedures (44 FR 11034, February 26, PW4ENG 73–150, or Engineering Change 1979), (a) Comments Due Date Number EC92KK322G, H, I, J, and K, as (3) Will not affect intrastate aviation We must receive comments by August 29, indicated with a (–3), or (–3A), or (–3B) suffix on the engine data plate. in Alaska, and 2011. (4) Will not have a significant (b) Affected ADs (d) Unsafe Condition economic impact, positive or negative, None. This AD was prompted by an updated low- on a substantial number of small entities cycle fatigue (LCF) life analysis performed by (c) Applicability Pratt & Whitney. We are issuing this AD to under the criteria of the Regulatory This AD applies to the following Pratt & correct the unsafe condition on these Flexibility Act. Whitney Division (PW) turbofan engines, products. with high-pressure turbine (HPT) stage 1 (e) Compliance List of Subjects in 14 CFR Part 39 airseal, part number (P/N) 50L879; HPT stage Comply with this AD within the Air transportation, Aircraft, Aviation 2 airseal, P/N 53L030; or HPT stage 1 airseal ring, P/N 50L664, installed: compliance times specified, unless already safety, Safety. done. (1) PW4000–100’’ Engines The Proposed Amendment (f) Removing From Service, the Stage 1 HPT PW4000–100’’ engine models PW4164, Airseal, P/N 50L879 Accordingly, under the authority PW4164C, PW4164C/B, PW4168, and PW4168A. Remove the stage 1 HPT airseal, P/N delegated to me by the Administrator, 50L879, at the next piece-part exposure after the FAA proposes to amend 14 CFR part (2) PW4000–94’’ Engines the effective date of this AD, or before 39 as follows: (i) PW4000–94’’ engine models PW4060, accumulating the number of cycles listed in PW4060A, PW4060C, PW4062, PW4062A, Table 1 of this AD, whichever occurs later.

TABLE 1—REMOVAL OF STAGE 1 HPT AIRSEALS, P/N 50L879, BY CYCLES-SINCE-NEW

Remove stage 1 HPT Airseal For engine model . . . by . . .

(1) Listed in paragraph (c)(1) of the Applicability Section of this AD ...... 12,600 cycles-since-new (CSN). (2) Listed in paragraph (c)(2)(i) of the Applicability Section of this AD ...... 13,900 CSN. (3) Listed in paragraph (c)(2)(ii) of the Applicability Section of this AD ...... 18,900 CSN.

(g) Removing From Service, the Stage 2 HPT the effective date of this AD, or before Airseal, P/N 53L030 accumulating the number of cycles listed in Remove the stage 2 HPT airseal, P/N Table 2 of this AD, whichever occurs later. 53L030, at the next piece-part exposure after

TABLE 2—REMOVAL OF STAGE 2 HPT AIRSEALS, P/N 53L030, BY CYCLES-SINCE-NEW

Remove stage 2 For engine model . . . HPT Airseal by . . .

(1) Listed in paragraph (c)(1) of the Applicability Section of this AD ...... 13,900 CSN. (2) Listed in paragraph (c)(2)(i) of the Applicability Section of this AD ...... 13,800 CSN. (3) Listed in paragraph (c)(2)(ii) of the Applicability Section of this AD ...... 15,900 CSN.

(h) Removing From Service, the Stage 1 HPT the effective date of this AD, or before Airseal Ring, P/N 50L664 accumulating the number of cycles listed in Remove the stage 1 HPT airseal ring, P/N Table 3 of this AD, whichever occurs later. 50L664, at the next piece-part exposure after

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TABLE 3—REMOVAL OF STAGE 1 HPT AIRSEAL RING, P/N 50L664, BY CYCLES-SINCE-NEW

Remove stage 1 For engine model . . . HPT Airseal Ring by . . .

(1) Listed in paragraph (c)(2)(i) of the Applicability Section of this AD ...... 14,800 CSN. (2) Listed in paragraph (c)(2)(ii) of the Applicability Section of this AD ...... 16,800 CSN.

(i) Installation Prohibition AD results from mandatory continuing this material at the FAA, call 425–227– After the effective date of this AD, do not airworthiness information (MCAI) 1221. install any stage 1 HPT airseal, P/N 50L879, originated by an aviation authority of Examining the AD Docket stage 2 HPT airseal, P/N 53L030, or stage 1 another country to identify and correct HPT airseal ring, P/N 50L664, that is at piece- an unsafe condition on an aviation You may examine the AD docket on part exposure and exceeds the new life limit product. The MCAI describes the unsafe the Internet at http:// listed in Table 1, Table 2, or Table 3, condition as: www.regulations.gov; or in person at the respectively, of this AD. A broken aileron servo actuator centering Docket Operations office between 9 a.m. (j) Definitions spring rod was discovered on a model G100 and 5 p.m., Monday through Friday, For the purpose of this AD, piece-part aircraft during a routine scheduled except Federal holidays. The AD docket exposure means that the part is completely maintenance inspection. * * * This latent contains this proposed AD, the disassembled and removed from the engine. failure of a centering spring rod, if not regulatory evaluation, any comments detected and corrected, in conjunction with received, and other information. The (k) Alternative Methods of Compliance the disconnection of the normal mechanical (AMOCs) street address for the Docket Operations control system of the same servo actuator office (telephone (800) 647–5527) is in The Manager, Engine Certification Office, would lead to loss [of] control of the flight ADDRESSES FAA, has the authority to approve AMOCs control surface [aileron or elevator]. This the section. Comments will for this AD, if requested, using the condition would reduce the control be available in the AD docket shortly procedures found in 14 CFR 39.19. capability of the airplane and imposes a after receipt. (l) Related Information higher workload on the flight crew reducing FOR FURTHER INFORMATION CONTACT: their ability to cope with adverse operating Mike Borfitz, Aerospace Engineer, For more information about this AD, conditions. contact James Gray, Aerospace Engineer, International Branch, ANM–116, Engine Certification Office, FAA, 12 New The proposed AD would require actions Transport Airplane Directorate, FAA, England Executive Park, Burlington, MA that are intended to address the unsafe 1601 Lind Avenue, SW., Renton, 01803; phone: 781–238–7742; fax: 781–238– condition described in the MCAI. Washington 98057–3356; telephone 7199; e-mail: [email protected]. DATES: We must receive comments on (425) 227–2677; fax (425) 227–1149. Issued in Burlington, Massachusetts, on this proposed AD by August 29, 2011. SUPPLEMENTARY INFORMATION: July 8, 2011. ADDRESSES: You may send comments by Comments Invited Peter A. White, any of the following methods: Acting Manager, Engine & Propeller • Federal eRulemaking Portal: Go to We invite you to send any written Directorate, Aircraft Certification Service. http://www.regulations.gov. Follow the relevant data, views, or arguments about [FR Doc. 2011–17648 Filed 7–13–11; 8:45 am] instructions for submitting comments. this proposed AD. Send your comments BILLING CODE 4910–13–P • Fax: (202) 493–2251. to an address listed under the • Mail: U.S. Department of ADDRESSES section. Include ‘‘Docket No. Transportation, Docket Operations, FAA–2011–0716; Directorate Identifier DEPARTMENT OF TRANSPORTATION M–30, West Building Ground Floor, 2011–NM–013–AD’’ at the beginning of Room W12–140, 1200 New Jersey your comments. We specifically invite Federal Aviation Administration Avenue, SE., Washington, DC 20590. comments on the overall regulatory, • Hand Delivery: U.S. Department of economic, environmental, and energy 14 CFR Part 39 Transportation, Docket Operations, aspects of this proposed AD. We will [Docket No. FAA–2011–0716; Directorate M–30, West Building Ground Floor, consider all comments received by the Identifier 2011–NM–013–AD] Room W12–40, 1200 New Jersey closing date and may amend this Avenue, SE., Washington, DC, between proposed AD based on those comments. RIN 2120–AA64 9 a.m. and 5 p.m., Monday through We will post all comments we Airworthiness Directives; Gulfstream Friday, except Federal holidays. receive, without change, to http:// Aerospace LP (Type Certificate For service information identified in www.regulations.gov, including any Previously Held by Israel Aircraft this proposed AD, contact Gulfstream personal information you provide. We Industries, Ltd.) Model Galaxy, Aerospace Corporation, P.O. Box 2206, will also post a report summarizing each Gulfstream G150, and Gulfstream 200 Mail Station D–25, Savannah, Georgia substantive verbal contact we receive Airplanes 31402–2206; telephone 800–810–4853; about this proposed AD. fax 912–965–3520; e-mail pubs@ Discussion AGENCY: Federal Aviation gulfstream.com; Internet http:// Administration (FAA), DOT. www.gulfstream.com/product_support/ The Civil Aviation Authority (CAA), _ ACTION: Notice of proposed rulemaking technical pubs/pubs/index.htm. You which is the aviation authority for (NPRM). may review copies of the referenced Israel, has issued Airworthiness service information at the FAA, Directives 27–10–11–03, dated SUMMARY: We propose to adopt a new Transport Airplane Directorate, 1601 December 6, 2010; and 27–10–12–29, airworthiness directive (AD) for the Lind Avenue, SW., Renton, Washington. dated January 4, 2011 (referred to after products listed above. This proposed For information on the availability of this as ‘‘the MCAI’’); to correct an unsafe

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condition for the specified products. these changes, we do not intend to differ the relationship between the national The MCAI states: substantively from the information Government and the States, or on the A broken aileron servo actuator centering provided in the MCAI and related distribution of power and spring rod was discovered on a model G100 service information. responsibilities among the various aircraft during a routine scheduled We might also have proposed levels of government. maintenance inspection. This centering different actions in this AD from those For the reasons discussed above, I spring rod is common to all Gulfstream Mid in the MCAI in order to follow FAA certify this proposed regulation: Cabin model (G100, G150 and G200) aileron policies. Any such differences are 1. Is not a ‘‘significant regulatory control servo actuators and the G200 elevator highlighted in a NOTE within the control servo actuator too. The function of action’’ under Executive Order 12866; the centering spring rod is to maintain the proposed AD. 2. Is not a ‘‘significant rule’’ under the affected servo actuator and its associated Costs of Compliance DOT Regulatory Policies and Procedures flight control surface in a centered position (44 FR 11034, February 26, 1979); and Based on the service information, we in the event of a disconnect of the normal 3. Will not have a significant estimate that this proposed AD would mechanical control system input from the economic impact, positive or negative, flight crew to the same servo actuator. This affect about 200 products of U.S. on a substantial number of small entities latent failure of a centering spring rod, if not registry. We also estimate that it would under the criteria of the Regulatory detected and corrected, in conjunction with take about 19 work-hours per product to Flexibility Act. the disconnection of the normal mechanical comply with the basic requirements of control system of the same servo actuator We prepared a regulatory evaluation would lead to loss [of] control of the flight this proposed AD. The average labor rate is $85 per work-hour. Based on of the estimated costs to comply with control surface/aileron. This condition would this proposed AD and placed it in the reduce the control capability of the airplane these figures, we estimate the cost of the and imposes a higher workload on the flight proposed AD on U.S. operators to be AD docket. crew reducing their ability to cope with $323,000, or $1,615 per product. List of Subjects in 14 CFR Part 39 adverse operating conditions. In addition, we estimate that any Air transportation, Aircraft, Aviation The required actions include a detailed necessary follow-on actions would take safety, Incorporation by reference, inspection of the servo actuator up to 20 work-hours per product, and Safety. centering spring rods for the aileron and require parts costing $0, for a cost of elevator to detect fractured or broken $1,700 per product. We have no way of The Proposed Amendment rods, and replacing the rods if determining the number of products Accordingly, under the authority necessary. You may obtain further that may need these actions. Where the delegated to me by the Administrator, information by examining the MCAI in service information lists required parts the FAA proposes to amend 14 CFR part the AD docket. costs that are covered under warranty, we have assumed that there will be no 39 as follows: Relevant Service Information charge for these costs. As we do not PART 39—AIRWORTHINESS Gulfstream Aerospace LP has issued control warranty coverage for affected DIRECTIVES Gulfstream Service Bulletins 150–27– parties, some parties may incur costs 123; and 200–27–374; both Revision 1, higher than estimated here. 1. The authority citation for part 39 both dated January 27, 2011. The Authority for This Rulemaking continues to read as follows: actions described in this service Authority: 49 U.S.C. 106(g), 40113, 44701. information are intended to correct the Title 49 of the United States Code unsafe condition identified in the specifies the FAA’s authority to issue § 39.13 [Amended] MCAI. rules on aviation safety. Subtitle I, 2. The FAA amends § 39.13 by adding section 106, describes the authority of the following new AD: FAA’s Determination and Requirements the FAA Administrator. ‘‘Subtitle VII: of This Proposed AD Aviation Programs,’’ describes in more Gulfstream Aerospace LP (Type Certificate This product has been approved by detail the scope of the Agency’s Previously Held by Israel Aircraft the aviation authority of another authority. Industries, Ltd.): Docket No. FAA–2011– We are issuing this rulemaking under 0716; Directorate Identifier 2011–NM– country, and is approved for operation 013–AD. in the United States. Pursuant to our the authority described in ‘‘Subtitle VII, bilateral agreement with the State of Part A, Subpart III, Section 44701: Comments Due Date Design Authority, we have been notified General requirements.’’ Under that (a) We must receive comments by August of the unsafe condition described in the section, Congress charges the FAA with 29, 2011. MCAI and service information promoting safe flight of civil aircraft in Affected ADs referenced above. We are proposing this air commerce by prescribing regulations (b) None. AD because we evaluated all pertinent for practices, methods, and procedures information and determined an unsafe the Administrator finds necessary for Applicability condition exists and is likely to exist or safety in air commerce. This regulation (c) This AD applies to the products develop on other products of the same is within the scope of that authority identified in paragraphs (c)(1) and (c)(2) of type design. because it addresses an unsafe condition this AD, certificated in any category. that is likely to exist or develop on (1) Gulfstream Aerospace LP (Type Differences Between This AD and the products identified in this rulemaking Certificate previously held by Israel Aircraft MCAI or Service Information action. Industries, Ltd.) Model Gulfstream G150 We have reviewed the MCAI and airplanes, serial numbers 201 through 286 related service information and, in Regulatory Findings inclusive. (2) Gulfstream Aerospace LP (Type general, agree with their substance. But We determined that this proposed AD Certificate previously held by Israel Aircraft we might have found it necessary to use would not have federalism implications Industries, Ltd.) Model Galaxy airplanes; and different words from those in the MCAI under Executive Order 13132. This Gulfstream Aerospace LP Model Gulfstream to ensure the AD is clear for U.S. proposed AD would not have a 200 airplanes; serial numbers 004 through operators and is enforceable. In making substantial direct effect on the States, on 231 inclusive.

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Subject for fractured or broken rods; however, DEPARTMENT OF HEALTH AND (d) Air Transport Association (ATA) of paragraph (h) of this AD requires corrective HUMAN SERVICES America Code 27: Flight controls. action. Food and Drug Administration Reason Other FAA AD Provisions (e) The mandatory continuing (j) The following provisions also apply to 21 CFR Part 203 airworthiness information (MCAI) states: this AD: A broken aileron servo actuator centering (1) Alternative Methods of Compliance [Docket No. FDA–2011–N–0446] spring rod was discovered on a model G100 (AMOCs): The Manager, International aircraft during a routine scheduled Branch, ANM–116, Transport Airplane maintenance inspection. * * * This latent Removal of Certain Requirements failure of a centering spring rod, if not Directorate, FAA, has the authority to Related to the Prescription Drug detected and corrected, in conjunction with approve AMOCs for this AD, if requested Marketing Act; Opportunity for Public the disconnection of the normal mechanical using the procedures found in 14 CFR 39.19. Comment control system of the same servo actuator In accordance with 14 CFR 39.19, send your would lead to loss [of] control of the flight request to your principal inspector or local AGENCY: Food and Drug Administration, control surface [aileron or elevator]. This Flight Standards District Office, as HHS. condition would reduce the control appropriate. If sending information directly ACTION: Proposed rule. capability of the airplane and imposes a to the International Branch, send it to ATTN: higher workload on the flight crew reducing Mike Borfitz, Aerospace Engineer, SUMMARY: The Food and Drug their ability to cope with adverse operating International Branch, ANM–116, Transport conditions. Administration (FDA) is proposing to Airplane Directorate, FAA, 1601 Lind remove a section of the Prescription Compliance Avenue, SW., Renton, Washington 98057– Drug Marketing Act (PDMA) regulations (f) You are responsible for having the 3356; telephone (425) 227–2677; fax (425) requiring that prior to the completion of actions required by this AD performed within 227–1149. Information may be e-mailed to: any wholesale distribution of a the compliance times specified, unless the [email protected]. prescription drug, an unauthorized actions have already been done. Before using any approved AMOC, notify distributor must provide to the Inspection your appropriate principal inspector, or purchaser ‘‘a statement identifying each lacking a principal inspector, the manager of (g) Within 12 months after the effective prior sale, purchase, or trade of such date of this AD, do the actions specified by the local flight standards district office/ drug,’’ starting with the manufacturer, paragraph (g)(1) or (g)(2) of this AD, as certificate holding district office. The AMOC and that the identifying statement (also applicable. approval letter must specifically reference known as the ‘‘pedigree’’) must include (1) For Model Gulfstream G150 airplanes: this AD. certain information about the drug and Do a one-time detailed inspection of the (2) Airworthy Product: For any requirement each prior sale, purchase, or trade. This aileron control servo actuators to detect in this AD to obtain corrective actions from action is being taken in response to fractured or broken centering spring rods, in a manufacturer or other source, use these longstanding issues, including an accordance with the Accomplishment actions if they are FAA-approved. Corrective Instructions of Gulfstream Service Bulletin injunction currently in effect, regarding actions are considered FAA-approved if they the application of and compliance with 150–27–123, Revision 1, dated January 27, are approved by the State of Design Authority 2011. this requirement. FDA is also (or their delegated agent). You are required (2) For Model Galaxy and Gulfstream 200 announcing that it intends to exercise to assure the product is airworthy before it airplanes: Do a one-time detailed inspection enforcement discretion with respect to is returned to service. of the aileron and elevator control servo certain requirements of the regulation actuators to detect fractured or broken Related Information while the rulemaking is pending and centering spring rods, in accordance with the with respect to the statutory pedigree Accomplishment Instructions of Gulfstream (k) Refer to MCAI Civil Aviation Authority Service Bulletin 200–27–374, Revision 1, of Israel Airworthiness Directives 27–10–11– requirements of the PDMA, as long as dated January 27, 2011. 03, dated December 6, 2010, and 27–10–12– the pedigree identifies the names and 29, dated January 4, 2011; and Gulfstream addresses of the last authorized Corrective Actions Service Bulletins 150–27–123 and 200–27– distributor of record that handled the (h) If any centering spring rod is found 374, both Revision 1, both dated January 27, drug and the associated dates of fractured or broken during any inspection 2011; for related information. transactions involving that last required by this AD: Before further flight, authorized distributor of record and the replace the centering spring rod in Issued in Renton, Washington, on July 6, drug, as well as the names and accordance with a method approved by the 2011. Manager, International Branch, ANM 116, addresses of all subsequent Transport Airplane Directorate, FAA, or the Kalene C. Yanamura, unauthorized distributors that handled Civil Aviation Authority of Israel (CAAI) (or Acting Manager, Transport Airplane the drug and the corresponding dates of its delegated agent). Directorate, Aircraft Certification Service. those transactions. Credit for Actions Accomplished in [FR Doc. 2011–17697 Filed 7–13–11; 8:45 am] DATES: Submit either electronic or Accordance With Previous Service BILLING CODE 4910–13–P written comments on the proposed rule Information by September 12, 2011. (i) Actions done before the effective date of ADDRESSES: You may submit comments, this AD in accordance with Gulfstream identified by Docket No. FDA–2011–N– Service Bulletin 150–27–123 or 200–27–374, 0446, by any of the following methods: both dated October 27, 2010, are considered acceptable for the actions required by Electronic Submissions paragraph (g) of this AD. Submit electronic comments in the FAA AD Differences following way: Note 1: This AD differs from the MCAI • Federal eRulemaking Portal: http:// and/or service information as follows: The www.regulations.gov. Follow the MCAI AD does not specify a corrective action instructions for submitting comments.

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Written Submissions PDMA for industry pending the authorized distributor of record and did Submit written submissions in the issuance of implementing regulations not provide any pedigree for the drug. following ways: (the 1988 guidance letter) (see The comment recommended revising • FAX: 301–827–6870. attachment E of FDA’s 2001 Report to the proposed rule to require that the • Mail/Hand delivery/Courier (for Congress (http://www.fda.gov/ pedigree only go back to the last paper, disk, or CD–ROM submissions): downloads/RegulatoryInformation/ authorized distributor of record (64 FR Division of Dockets Management (HFA– Legislation/FederalFoodDrugand 67720 at 67747). FDA declined to revise 305), Food and Drug Administration, CosmeticActFDCAct/Significant the rule, explaining that the statute 5630 Fishers Lane, rm. 1061, Rockville, AmendmentstotheFDCAct/Prescription requires that the pedigree identify ‘‘each MD 20852. DrugMarketingActof1987/UCM203186. prior sale, purchase, or trade of the Instructions: All submissions received pdf)). Among other issues, the 1988 drug’’ and ‘‘[t]here is no indication in must include the Agency name and guidance letter discussed drug [the] PDMA that Congress intended that Docket No. for this rulemaking. All pedigrees. The 1988 guidance letter the statement include only those sales, comments received may be posted stated that the necessary identifying purchases, or trades since the drug was without change to http:// information regarding all sales in the last handled by an authorized www.regulations.gov, including any chain of distribution may start with the distributor.’’ (64 FR 67720 at 67747). personal information provided. For manufacturer or authorized distributor The December 1999 final rule thus additional information on submitting of record. As explained in an FDA 2001 codified § 203.50(a) (21 CFR 203.50(a)), comments, see the ‘‘Comments’’ heading Prescription Drug Marketing Act Report which follows section 503(e)(1)(A) of of the SUPPLEMENTARY INFORMATION to Congress (2001 Report to Congress) the FD&C Act, requiring that, before the section of this document. (see http://www.fda.gov/downloads/ completion of any wholesale Docket: For access to the docket to RegulatoryInformation/Legislation/ distribution by a wholesale distributor read background documents or FederalFoodDrugandCosmeticAct of a prescription drug for which the comments received, go to http:// FDCAct/SignificantAmendments seller is not a manufacturer or an www.regulations.gov and insert the totheFDCAct/PrescriptionDrug authorized distributor of record, the docket number(s), found in brackets in MarketingActof1987/UCM203186.pdf), seller must provide to the purchaser a the heading of this document, into the it was the Agency’s understanding at the statement (also referred to as a pedigree) ‘‘Search’’ box and follow the prompts time that the authorized distributor of identifying each prior sale, purchase, or and/or go to the Division of Dockets record would be the distributor to trade of the drug. According to Management, 5630 Fishers Lane, rm. whom the manufacturer first sold the § 203.50(a), the identifying statement 1061, Rockville, MD 20852. drugs, not just any authorized must include: The proprietary and established name of the drug; dosage; FOR FURTHER INFORMATION CONTACT: distributor who happened to purchase container size; number of containers; Karen Rothschild, Center for Drug the drugs somewhere along the the lot or control numbers of the drug Evaluation and Research, Food Drug distribution chain. being distributed; the business name Administration, 10903 New Hampshire In the Federal Register of March 14, and address of all parties to each prior Ave., Silver Spring, MD 20993, 301– 1994 (59 FR 11842), we issued a transaction involving the drug, starting 796–3689, e-mail: proposed rule related to certain with the manufacturer; and the date of [email protected]. provisions of the PDMA. With respect to each previous transaction. SUPPLEMENTARY INFORMATION: prescription drug pedigrees, the After publication of the December proposed rule provided in relevant part 1999 final rule, we received many I. Background that the identifying statement for sales comments on, and held several meetings The PDMA (Pub. L. 100–293) was by unauthorized distributors must to discuss, the implications of the final enacted on April 22, 1988, and was include ‘‘the business name and address regulations regarding, among other modified by the PDA (Pub. L. 102–353) of all parties to each prior transaction things, the pedigree provisions at on August 26, 1992. The PDMA, as involving the drug, starting with the § 203.50(a) requiring unauthorized modified, amended the Federal Food, manufacturer.’’ (59 FR 11865). A final distributors to provide a pedigree Drug, and Cosmetic Act (the FD&C Act) rule was issued in the Federal Register showing all prior sales going back to the to establish restrictions and of December 3, 1999 (64 FR 67720) (the manufacturer. Industry representatives requirements relating to various aspects December 1999 final rule), with an of unauthorized distributors represented of human prescription drug marketing effective date of December 4, 2000. The that they could not obtain the required and distribution. The primary purpose final rule contained provisions on pedigree showing all prior sales of the of the PDMA was to increase safeguards prescription drug reimportation; drugs they purchase because a large to prevent the introduction and retail wholesale distribution of prescription portion of these drugs are purchased sale of substandard, ineffective, and drugs by unauthorized distributors; the from authorized distributors who are counterfeit drugs into the U.S. drug resale of prescription drugs by hospitals, not required to provide pedigrees and supply chain. Among other things, the health care entities, and charitable who are unwilling to voluntarily PDMA, in section 503(e)(1)(A) of the institutions; and distribution of provide them.1 Industry representatives FD&C Act (21 U.S.C. 353), requires a prescription drug samples. In the also claimed that implementation of this wholesale distributor ‘‘who is not the December 1999 final rule, FDA requirement could prevent as many as manufacturer or authorized distributor responded to a comment objecting to the 4,000 smaller, unauthorized distributors of record’’ to provide drug pedigrees to pedigree requirement as proposed from distributing many drugs to their purchasers ‘‘identifying each prior sale, because it would require an purchase or trade of such drug unauthorized distributor to provide 1 FDA, The Prescription Drug Marketing Act (including the date of the transaction information about all prior sales, Report to Congress, 2001 (http://www.fda.gov/ and the names and addresses of all purchases, or trades of the drug, starting downloads/RegulatoryInformation/Legislation/ FederalFoodDrugandCosmeticActFDCAct/ parties to the transaction).’’ with the manufacturer, even in cases SignificantAmendmentstotheFDCAct/ On August 1, 1988, the Agency issued where the seller from whom the PrescriptionDrugMarketingActof1987/ a letter that provided guidance on the distributor received the drug was an UCM203186.pdf).

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customers, putting the unauthorized Human Servs., 467 F. Supp.2d 285 by authorized distributors’’ and the distributors out of business.2 (E.D.N.Y. 2006)). On November 22, regulation is ‘‘inconsistent with the In the 2001 Report to Congress, we 2006, the plaintiffs moved for a position taken by the agency in its noted that we would be able to address preliminary injunction against original 1988 guidance letter, and it some, but not all of the concerns raised implementation of the regulation, runs directly counter to the 20-year by unauthorized distributors. We stated which, as noted previously, was history of industry reliance on the that we believed that ‘‘the concerns scheduled to become effective on FDA’s initial position.’’ (285 Fed. Appx. related to continuing to exempt December 1, 2006. On December 8, at 811). authorized distributors from the 2006, the district court issued a The district court’s preliminary pedigree requirement and the exact preliminary injunction enjoining FDA injunction, as affirmed by the circuit meaning of the phrase ‘each prior sale’ from implementing § 203.50(a) (467 court, halted FDA’s implementation of can be addressed only through statutory F.Supp. 2d at 292). The court concluded the requirements of § 203.50(a). remedies.’’ 3 that the statute, unlike § 203.50(a), does Specifically, the order enjoins FDA from As a result of these comments, other not ‘‘specifically or expressly require[] implementing the requirement in informal communications that FDA had unauthorized distributors to provide § 203.50(a) that a pedigree identify each with industry, industry associations, pedigree information all the way back to prior sale or trade of a drug back to the and Congress, and the Agency’s the manufacturer.’’ 467 F. Supp. 2d at drug’s original manufacturer and the consideration of a petition for stay of 290 (emphasis in original). The court requirement that specifies the types of action received on May 3, 2000, FDA stated that ‘‘[u]nauthorized distributors information that must be included in delayed the effective date of several would be unable to comply with’’ the the pedigree, including lot numbers and provisions of the December 1999 final December 1999 final rule requirement to container sizes. rule until October 1, 2001, and reopened ‘‘provide complete pedigree information Under the district court’s order, the administrative record to receive for all prior sales up to the unauthorized distributors are only additional comments (65 FR 25639, May manufacturer’’ because unauthorized required to provide pedigrees that 3, 2000). In the Federal Register of distributors purchase drugs from include information regarding March 1, 2001 (66 FR 12850), we authorized distributors ‘‘who do not transactions going back to either the announced our decision to further delay provide pedigree information.’’ (467 F. manufacturer or the last authorized until April 1, 2002, the applicability of Supp. 2d at 291). The district court distributor of record that handled the § 203.50, among other provisions. concluded that plaintiffs had shown a drugs. In addition, as specified in the Further delays of the effective dates likelihood of success on the merits of FD&C Act, all pedigrees must include followed until December 1, 2006, to give their claim because, in the court’s view, the dates of the listed transactions and the names and addresses of all parties us additional time to consider whether the pedigree regulation undermined the to those transactions. We recognized regulatory changes were appropriate purpose of the statute and was therefore that these circumstances resulting from and, if so, to initiate such changes (67 arbitrary and capricious. (467 F. Supp. the court’s order could lead to confusion FR 6645, February 13, 2002; 69 FR 4912, 2d at 291). The court also found that and possible disruptions or delays in January 23, 2003; 69 FR 8105, February issuance of the preliminary injunction the nation’s drug distribution system for 23, 2004). would benefit the public interest by While § 203.50 was stayed, the wholesale distributors operating outside preserving ‘‘the status quo and the industry followed the advice given in of the court’s jurisdiction and could current practice in the industry.’’ (467 F. the 1988 guidance letter, which, as provide an undue advantage to certain Supp. 2d at 292). noted previously, stated that the wholesaler distributors. Therefore, we pedigree should include ‘‘all necessary The Agency appealed the district announced that we would exercise identifying information regarding all court’s preliminary injunction order, but enforcement discretion in a manner sales in the chain of distribution of the the district court’s order was affirmed consistent with the court’s opinion product, starting with the manufacturer on July 10, 2008, by the U.S. Court of throughout the rest of the country. Appeals for the Second Circuit. (See or the authorized distributor.’’ II. Proposed Regulation In the Federal Register of June 14, RxUSA Wholesale, Inc., v. Dept. of 2006 (71 FR 34249), we announced that Health and Human Servs., 285 Fed. FDA is now proposing to remove FDA did not intend to further delay the Appx. 809 (2d Cir. 2008)). The appellate § 203.50(a). Over the past 20 years, we effective date of certain regulations court explained that the PDMA ‘‘does have endeavored to ensure that the related to the PDMA, including not specifically state whether’’ a pedigree requirements in our § 203.50, and that the regulation would pedigree must ‘‘extend back to the regulations are consistent with go into effect on December 1, 2006. manufacturer, or whether it must only congressional intent and provide On September 20, 2006, a group of extend to the last authorized distributor. appropriate accountability to protect our unauthorized wholesalers of The parties offer differing textual nation’s drug supply. We have made a prescription drugs filed a lawsuit interpretations, but we agree with the good faith effort to implement the against FDA in the U.S. District Court district court that for purposes of requirements in § 203.50(a) consistent for the Eastern District of New York, preliminary injunction the statute’s with the language of the PDMA through seeking, among other things, a language does not unambiguously public meetings, Federal Register declaratory judgment that § 203.50(a) compel one interpretation over documents requesting comments, erroneously interprets the statutory another.’’ (285 Fed. Appx. at 811). meetings with the wholesale industry, requirement for pedigrees (21 U.S.C. Moreover, the second circuit concluded Members of Congress, and others, a 353(e)(1)(A)), and violates the U.S. that the district court had not abused its Report to Congress, and other actions. Constitution’s guarantees of equal discretion in determining that the For the various reasons discussed protection and due process. (RxUSA plaintiffs had shown a likelihood of earlier, § 203.50(a) has been effective for Wholesale, Inc. v. Dept. of Health and success on the merits because only a total of 7 days since the § 203.50(a) requires unauthorized finalization of the rule in 1999. As 2 (See footnote 1 of this document.) distributors to ‘‘provide pedigree explained previously, there have been 3 (See footnote 1 of this document.) information that is currently held only serious ongoing concerns about the

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effect that full implementation of the to include the drug, dosage, container previously issued a final rule statutory pedigree requirements, as size, number of containers, and the establishing certain requirements for codified in § 203.50(a), would have on drug’s lot or control number(s) in the section 503(e)(1)(a). Similarly, under its the nation’s drug supply and on pedigree as well. rulemaking authority, FDA can propose wholesaler distributors. Therefore, in FDA continues to believe that drug to remove those specific requirements light of the courts’ opinions, we are supply chain security is of the utmost that have been established by proposing to remove § 203.50(a). importance and that transparency of regulation. FDA is basing the proposed By proposing to remove § 203.50(a), transactions and accountability are removal of § 203.50(a) on the grounds we would remove the requirement in essential to further secure our nation’s described in section II of this document. the regulation that the pedigree identify drug supply. Counterfeit and diverted As explained earlier, the statutory each prior sale or trade of a drug back drugs continue to be found in our drug provisions of section 503(e) of the FD&C to the drug’s manufacturer. In addition, supply chain and the action proposed in Act, as well as the other provisions of this proposal would remove the this document should not be interpreted § 203.50 that would not be removed by requirement in the regulation that the to mean that there is not a problem with this proposed rule, would remain identifying statement include certain counterfeit and diverted drugs. Rather, legally effective. information, such as the proprietary and FDA remains committed to the established name of the drug, the framework set forth in the 2004 FDA IV. Analysis of Impacts dosage, container size, number of Counterfeit Drug Task Force Report FDA has examined the impacts of the containers, the drug’s lot or control (Task Force Report) and subsequent proposed rule under Executive Order number(s), the business name and updates to that Task Force Report 12866, Executive Order 13563, the address of all parties for each prior (http://www.fda.gov/Drugs/DrugSafety/ Regulatory Flexibility Act (5 U.S.C. transaction, starting with the ucm169825.htm) and will continue to 601–612), and the Unfunded Mandates manufacturer, and the date of each move forward, working with the private Reform Act of 1995 (Pub. L. 104–4). previous transaction. While the and public sectors to improve the Executive Orders 12866 and 13563 rulemaking to remove the regulation is security of the drug supply chain and direct Agencies to assess all costs and pending, we intend to exercise implement measures to further protect benefits of available regulatory enforcement discretion with respect to Americans from counterfeit and alternatives and, when regulation is all of these requirements in § 203.50(a). diverted drugs. We also will continue necessary, to select regulatory We note that even with the removal our efforts to implement the approaches that maximize net benefits of § 203.50(a), the pedigree requirements pharmaceutical security provisions (including potential economic, of section 503(e)(1)(A) of the FD&C Act contained in section 913 of the Food environmental, public health and safety, would still be in effect. However, with and Drug Administration Amendments and other advantages; distributive respect to these statutory pedigree Act of 2007. impacts; and equity). The Agency requirements, the Agency intends to As stated in the Task Force Report, believes that this proposed rule is not a exercise enforcement discretion and not such measures include implementation significant regulatory action as defined initiate an enforcement action against of tracking and tracing, which would by Executive Order 12866. any wholesalers for failing to provide a help secure the integrity of the supply The Regulatory Flexibility Act pedigree that goes back to the chain by providing an accurate requires Agencies to analyze regulatory manufacturer or for failing to include electronic record of transactions in the options that would minimize any the specific information listed in the drug supply chain. Such electronic significant impact of a rule on small regulation, as long as the pedigree records documenting the movement of a entities. Because the removal of the otherwise identifies the last authorized drug product from the manufacturer to specified pedigree requirements for distributor of record that handled the the dispenser would be an important prescription drug distribution in drugs and the associated dates of the step in preventing counterfeit and § 203.50(a) would not measurably transactions, as well as the names and diverted drugs from entering the drug decrease the estimated compliance costs addresses of all unauthorized supply chain. FDA will continue to of the December 1999 final rule, the distributors that handled the drug after develop standards for the purpose of Agency proposes to certify that the final the last authorized distributor, and the securing the drug supply chain against rule will not have a significant corresponding dates of those counterfeit, diverted, subpotent, economic impact on a substantial transactions. substandard, adulterated, misbranded, number of small entities. In summary, unauthorized or expired drugs, including standards Section 202(a) of the Unfunded distributors need to be aware that their for the identification, validation, Mandates Reform Act of 1995 requires pedigree(s) must: (1) Include authentication, and tracking and tracing that Agencies prepare a written information regarding transactions going of prescription drugs. We are not statement, which includes an back to either the manufacturer or the proposing any new provisions in lieu of assessment of anticipated costs and last authorized distributor of record that § 203.50(a) at this time. benefits, before proposing ‘‘any rule that handled the drugs, consistent with the includes any Federal mandate that may preliminary injunction order previously III. Legal Authority result in the expenditure by State, local, referenced and (2) include the date of FDA is issuing this proposed rule to and tribal governments, in the aggregate, the transaction and the names and remove the provisions in § 203.50(a) or by the private sector, of $100,000,000 addresses of all parties to the under its rulemaking authority under or more (adjusted annually for inflation) transaction as explicitly required under section 701(a) of the FD&C Act (21 in any one year.’’ The current threshold section 503(e)(1)(A) of the FD&C Act. U.S.C. 371) and based on those reasons after adjustment for inflation is $136 Furthermore, while FDA is proposing to provided in section II of this document. million, using the most current (2010) remove § 203.50(a) and intends to Specifically, FDA can issue regulations Implicit Price Deflator for the Gross exercise enforcement discretion under through its rulemaking authority to Domestic Product. FDA does not expect these described circumstances with establish requirements for section 503(e) this proposed rule to result in any 1- respect to the statutory requirements for of the FD&C Act. As described in year expenditure that would meet or a pedigree, FDA encourages wholesalers section I of this document, FDA exceed this amount.

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The Agency published a final rule on forth in Executive Order 13132. FDA DEPARTMENT OF STATE December 3, 1999, codified in has determined that the proposed rule, § 203.50(a), that contained certain if finalized, would not contain policies 22 CFR Part 123 requirements concerning prescription that would have substantial direct RIN 1400–AC85 drug distribution. Specifically, it effects on the States, on the relationship required that before the wholesale between the National Government and [Public Notice 7524] distribution of any prescription drug to the States, or on the distribution of another wholesale distributor or retail power and responsibilities among the International Traffic in Arms pharmacy for which the seller is not an various levels of government. Regulations: International Import authorized distributor of record, the Accordingly, the Agency tentatively Certificate wholesale distributor must provide to concludes that the proposed rule does AGENCY: Department of State. the purchaser a statement identifying not contain policies that have each prior sale, purchase or trade. ACTION: Proposed rule. federalism implications as defined in Further, it contained a list of specific the Executive order and, consequently, SUMMARY: The Department of State information to be contained in the proposes to amend the International identifying statement. As explained a federalism summary impact statement previously, this regulation is the subject is not required. Traffic in Arms Regulations (ITAR) to remove reference to the International of a preliminary injunction. In the VIII. Proposed Effective Date December 1999 final rule, the Agency Import Certificate. This amendment will estimated that the wholesale The Agency is proposing that any effectively cease the Department’s distribution requirements, including the final rule that may issue based upon this current practice of accepting DSP–53 drug identifying (or origin) statement proposed rule become effective upon its submissions, as there is no statutory, and a separate distributor list to be publication in the Federal Register. regulatory, or other authoritative basis provided by manufacturers, would for the Department to do so. together impose $258,000 in annual IX. Comments DATES: The Department of State will accept comments on this proposed rule recordkeeping costs. In making this Interested persons may submit to the until August 29, 2011. estimate, the Agency judged that the Division of Dockets Management (see ADDRESSES: marginal costs for the inclusion of the ADDRESSES) either electronic or written additional information that § 203.50(a) comments regarding this document. It is Interested parties may submit would have required beyond that comments within 45 days of the date of only necessary to send one set of information that would be required in the publication by any of the following comments. It is no longer necessary to the PDMA pedigree provision would be methods: send two copies of mailed comments. negligible, and did not increase its cost • E-mail: Identify comments with the docket estimate to reflect this additional effort. [email protected] with the number found in brackets in the The removal of § 203.50(a), therefore, is subject line, ‘‘International Import expected to reduce compliance costs by heading of this document. Received Certificate, ITAR Section 123.4.’’ only that negligible amount that the comments may be seen in the Division • Internet: View this notice by Agency did not separately estimate for of Dockets Management between 9 a.m. searching for its RIN number on the U.S. the final rule, as the pedigree provision and 4 p.m., Monday through Friday. Government regulations Web site at of the PDMA still requires its own, List of Subjects in 21 CFR Part 203 http://www.regulations.gov. slightly less expansive, pedigree FOR FURTHER INFORMATION CONTACT: provision. This regulatory action that Labeling, Prescription drugs, Samuel C. Harmon, Office of Defense removes a provision of the December Reporting and recordkeeping Trade Controls Policy, Department of 1999 final rule is expected to reduce the requirements, Warehouses. State, by telephone: (202) 663–2728; fax: previously estimated annual compliance Therefore, under the Federal Food, (202) 261–8199; or e-mail: costs of $258,000 for this provision by Drug, and Cosmetic Act and under [email protected]. ATTN: a negligible, but unquantified, amount. authority delegated to the Commissioner International Import Certificate, ITAR V. Paperwork Reduction Act of 1995 of Food and Drugs, it is proposed that Section 123.4. FDA tentatively concludes that this 21 CFR part 203 be amended as follows: SUPPLEMENTARY INFORMATION: The Arms proposed rule contains no collection of Export Control Act authorizes the information. Therefore, clearance by the PART 203—PRESCRIPTION DRUG President to control the import and Office of Management and Budget under MARKETING export of defense articles. Executive the Paperwork Reduction Act of 1995 is Order 11958, as amended, delegated the not required. 1. The authority citation for 21 CFR authority to regulate permanent exports part 203 continues to read as follows: and temporary imports and exports of VI. Environmental Impact defense articles to the Department of The Agency has determined under 21 Authority: 21 U.S.C. 331, 333, 351, 352, State, and delegated the authority to CFR 25.30 this action is of a type that 353, 360, 371, 374, 381. regulate permanent imports to the does not individually or cumulatively § 203.50 [Amended] Attorney General. The International have a significant effect on the human Import Certificate (IIC), Form BIS–645P/ environment. Therefore, neither an 2. Section 203.50 is amended by ATF–4522/DPS–53, is identified as a environmental assessment nor an removing and reserving paragraph (a). form issued by the Department of environmental impact statement is Dated: July 1, 2011. Commerce’s Bureau of Industry & required. Security; the Department of Justice’s Leslie Kux, Bureau of Alcohol, Tobacco, Firearms VII. Federalism Acting Assistant Commissioner for Policy. and Explosives; and the Department of FDA has analyzed this proposed rule [FR Doc. 2011–17696 Filed 7–13–11; 8:45 am] State’s Directorate of Defense Trade in accordance with the principles set BILLING CODE 4160–01–P Controls (DDTC). It is meant to

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standardize procedures used to facilitate expenditure by State, local, and tribal this regulation is consistent with the international trade. However, while governments, in the aggregate, or by the guidance therein. DDTC typically receives approximately private sector, of $100 million or more Executive Order 12988 600 IIC submissions a year, there is no in any year and it will not significantly statutory, regulatory, or other or uniquely affect small governments. The Department of State has reviewed authoritative basis for the Department of Therefore, no actions were deemed this proposed amendment in light of State to receive submission or pursue necessary under the provisions of the sections 3(a) and 3(b)(2) of Executive enforcement of the IIC. The Department Unfunded Mandates Reform Act of Order 12988 to eliminate ambiguity, of State’s DSP–61 Application/License 1995. minimize litigation, establish clear legal for Temporary Import of Unclassified standards, and reduce burden. Executive Order 13175 Defense Articles and DSP–85 Paperwork Reduction Act Application/License for Permanent/ The Department has determined that Temporary Export or Temporary Import this proposed rule will not have tribal This proposed rule does not impose of Classified Defense Articles and implications, will not impose any new reporting or recordkeeping Related Classified Technical Data substantial direct compliance costs on requirements subject to the Paperwork account for its authority to control Indian tribal governments, and will not Reduction Act, 44 U.S.C. chapter 35. temporary imports of defense articles. pre-empt tribal law. Accordingly, the List of Subjects in 22 CFR Parts 120 and The Department of State’s retention of requirements of Section 5 of Executive 123 the IIC is duplicative and unnecessary. Order 13175 do not apply to this rule. Therefore, DDTC proposes to revise Arms and munitions, Exports. Small Business Regulatory Enforcement Accordingly, for the reasons set forth § 123.4 to reflect its decision to no Fairness Act of 1996 longer to accept submissions of the above, Title 22, chapter I, subchapter M, International Import Certificate (DSP– This proposed amendment has been parts 120 and 123 are proposed to be 53). DDTC will also make conforming found not to be a major rule within the amended as follows: changes to § 120.28 to remove reference meaning of the Small Business PART 120—PURPOSE AND to the DSP–53. For temporary import Regulatory Enforcement Fairness Act of DEFINITIONS exemptions in which the foreign 1996. exporter requires documentation, the Executive Orders 12372 and 13132 1. The authority citation for part 120 U.S. importer will be required to obtain This proposed amendment will not continues to read as follows: a DSP–61 or a DSP–85. The Bureau of have substantial direct effects on the Authority: Secs. 2, 38, and 71, Public Law Industry & Security and the Bureau of States, on the relationship between the 90–629, 90 Stat. 744 (22 U.S.C. 2752, 2778, Alcohol, Tobacco, Firearms and national government and the States, or 2797); 22 U.S.C. 2794; E.O. 11958, 42 FR Explosives will continue to adjudicate on the distribution of power and 4311; E.O. 13284, 68 FR 4075; 3 CFR, 1977 International Import Certificate Comp. p. 79; 22 U.S.C. 2651a; Public Law responsibilities among the various submissions for items under their 105–261, 112 Stat. 1920. levels of government. Therefore, in jurisdiction. accordance with Executive Order 13132, 2. Section 120.28 is amended by Regulatory Analysis and Notices it is determined that this proposed redesignating paragraph (b)(3) as amendment does not have sufficient paragraph (c) and by revising paragraph Administrative Procedure Act federalism implications to require (b)(1) to read as follows: The Department of State is of the consultations or warrant the preparation § 120.28 Listing of forms referred to in this opinion that controlling the import and of a federalism summary impact subchapter. export of defense articles and services is statement. The regulations * * * * * a foreign affairs function of the United implementing Executive Order 12372 (b) * * * States Government and that rules regarding intergovernmental (1) International Import Certificate implementing this function are exempt consultation on Federal programs and (Form BIS–645P/ATF–4522). from § 553 (Rulemaking) and § 554 activities do not apply to this proposed * * * * * (Adjudications) of the Administrative amendment. Procedure Act. Although the Executive Order 12866 PART 123—LICENSES FOR THE Department is of the opinion that this EXPORT OF DEFENSE ARTICLES proposed rule is exempt from the The Department of State does not rulemaking provisions of the APA, the consider this proposed rule to be a 3. The authority citation for part 123 Department is publishing this proposed ‘‘significant regulatory action’’ under continues to read as follows: rule with a 45-day provision for public Executive Order 12866, section 3(f), Authority: Secs. 2, 38, and 71, Public Law comment and without prejudice to its Regulatory Planning and Review. The 90–629, 90 Stat. 744 (22 U.S.C. 2752, 2778, determination that controlling the Department is of the opinion that 2797); 22 U.S.C. 2753; E.O. 11958, 42 FR import and export of defense services is controlling the import and export of 4311; 3 CFR, 1977 Comp. p. 79; 22 U.S.C. a foreign affairs function. defense articles and services is a foreign 2651a; 22 U.S.C. 2776; Pub. L. 105–261, 112 affairs function of the United States Stat. 1920; Sec 1205(a), Public Law 107–228. Regulatory Flexibility Act Government and that rules governing 4. Section 123.4 is amended by Since this proposed amendment is not the conduct of this function are exempt adding paragraph (c)(4) to read as subject to the notice-and-comment from the requirements of Executive follows: procedures of 5 U.S.C. 553, it does not Order 12866. require analysis under the Regulatory § 123.4 Temporary import license Flexibility Act. Executive Order 13563 exemptions. The Department of State has * * * * * Unfunded Mandates Reform Act of 1995 considered this proposed rule in light of (c) * * * This proposed amendment does not Section 1(b) of Executive Order 13563, (4) If the foreign exporter requires involve a mandate that will result in the dated January 18, 2011, and affirms that documentation for a temporary import

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that qualifies for an exemption under § 123.22(c) to institute changes in the private sector, of $100 million or more this subchapter, the U.S. importer will requirements for the return of licenses. in any year and it will not significantly not be able to claim the exemption and With this proposed change, applicants or uniquely affect small governments. is required to obtain a DSP–61 with DSP–5 licenses that have been Therefore, no actions were deemed Application/License for Temporary issued electronically by the Directorate necessary under the provisions of the Import of Unclassified Defense Articles of Defense Trade Controls (DDTC) and Unfunded Mandates Reform Act of or, for classified defense articles, a DSP– decremented electronically by the U.S. 1995. 85 Application for Permanent/ Customs and Border Protection through Executive Order 13175 Temporary Export or Temporary Import the Automated Export System (AES) of Classified Defense Articles and will no longer need to return them to The Department has determined that Related Classified Technical Data. DDTC. The return of these licenses is this rule will not have tribal * * * * * redundant and unnecessary as all of the implications, will not impose export information has been captured substantial direct compliance costs on Dated: July 6, 2011. and saved electronically. Indian tribal governments, and will not Ellen O. Tauscher, All other DSP–5 licenses that do not pre-empt tribal law. Accordingly, the Under Secretary, Arms Control and meet the criteria described above must requirements of Executive Order 13175 International Security, Department of State. be returned by the applicant to DDTC. do not apply to this rule. [FR Doc. 2011–17804 Filed 7–13–11; 8:45 am] All DSP–61, DSP–73, and DSP–85 Small Business Regulatory Enforcement BILLING CODE 4710–25–P licenses, and DSP–94 authorizations, are Fairness Act of 1996 to be returned by the applicant to DDTC as these licenses and authorizations are This amendment has been found not DEPARTMENT OF STATE not decremented electronically, even if to be a major rule within the meaning of the Small Business Regulatory 22 CFR Part 123 an Electronic Export Information is filed via AES. Enforcement Fairness Act of 1996. RIN 1400–AC91 Proposed § 123.22(c)(4) provides that Executive Orders 12372 and 13132 [Public Notice 7523] licenses issued but not used by the applicant do not need to be returned to This amendment will not have substantial direct effects on the States, International Traffic in Arms DDTC on the relationship between the national Regulations: Filing, Retention, and Proposed § 123.22(c)(5) provides that government and the States, or on the Return of Export Licenses and Filing of licenses which have been revoked by distribution of power and Export Information DDTC are considered expired. Section 123.21(b) is to be amended to responsibilities among the various AGENCY: Department of State. conform to the proposed changes to levels of government. Therefore, in ACTION: Proposed rule. § 123.22(c). accordance with Executive Order 13132, it is determined that this amendment SUMMARY: The Department of State Regulatory Analysis and Notices does not have sufficient federalism proposes to amend the International Administrative Procedure Act implications to require consultations or Traffic in Arms Regulations (ITAR) to warrant the preparation of a federalism reflect changes in the requirements for The Department of State is of the summary impact statement. The the return of licenses. Applicants will opinion that controlling the import and regulations implementing Executive no longer be required to return certain export of defense articles and services is Order 12372 regarding expired or exhausted DSP–5s. This a foreign affairs function of the United intergovernmental consultation on change will reduce administrative States Government and that rules Federal programs and activities do not burden on applicants. implementing this function are exempt apply to this amendment. from § 553 (Rulemaking) and § 554 DATES: Effective Date: The Department Executive Order 12866 of State will accept comments on this (Adjudications) of the Administrative proposed rule until August 29, 2011. Procedure Act. Although the The Department of State does not Department is of the opinion that this consider this rule to be a ‘‘significant ADDRESSES: Interested parties may rule is exempt from the rulemaking submit comments within 45 days of the regulatory action’’ under Executive provisions of the APA, the Department date of the publication by any of the Order 12866, section 3(f), Regulatory is publishing this rule with a 45-day following methods: Planning and Review. The Department provision for public comment and • E-mail: is of the opinion that controlling the without prejudice to its determination [email protected] with the import and export of defense articles that controlling the import and export of subject line, ‘‘ITAR Amendment— and services is a foreign affairs function defense services is a foreign affairs License Return.’’ of the United States Government and • Internet: View this notice by function. that rules governing the conduct of this searching for its RIN on the U.S. Regulatory Flexibility Act function are exempt from the Government regulations Web site at requirements of Executive Order 12866. Since this amendment is not subject http://www.regulations.gov. to the notice-and-comment procedures Executive Order 13563 FOR FURTHER INFORMATION CONTACT: of 5 U.S.C. 553, it does not require The Department of State has Nicholas Memos, Office of Defense analysis under the Regulatory considered this rule in light of Trade Controls Policy, Bureau of Flexibility Act. Executive Order 13563, dated January Political-Military Affairs, Department of 18, 2011, and affirms that this regulation Unfunded Mandates Reform Act of 1995 State, (202) 663–2804 or FAX (202) 261– is consistent with the guidance therein. 8199; E-mail [email protected], Attn: This amendment does not involve a ITAR Amendment—License Return. mandate that will result in the Executive Order 12988 SUPPLEMENTARY INFORMATION: The expenditure by State, local, and tribal The Department of State has reviewed Department of State proposes to amend governments, in the aggregate, or by the the amendment in light of sections 3(a)

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and 3(b)(2) of Executive Order 12988 to accordance with paragraph (a)(2) of this compliance with the statutory mandate, eliminate ambiguity, minimize section), must be returned by the the regulations reflect outdated prior litigation, establish clear legal applicant to DDTC upon expiration, to policy of permitting state-licensed standards, and reduce burden. include when the total value or quantity appraisers to be listed on the FHA has been shipped. A copy must be Appraiser Roster. In addition, HUD has Paperwork Reduction Act maintained by the applicant in taken this opportunity to update the This rule does not impose any new accordance with § 122.5 of this FHA Appraiser Roster by replacing the reporting or recordkeeping requirements subchapter. AES does not decrement the obsolete references to the Credit Alert subject to the Paperwork Reduction Act, DSP–61, DSP–73, and DSP–85 licenses. Interactive Voice Response System with 44 U.S.C. Chapter 35. Submitting the Electronic Export references to its successor, the online- List of Subjects in 22 CFR Part 123 Information is not considered to be based Credit Alert Verification decremented electronically for these Reporting System. Arms and munitions, Exports. licenses. DATES: Comment Due Date: September Accordingly, for the reasons set forth (3) A DSP–94 authorization filed with 12, 2011. above, Title 22, Chapter I, Subchapter the U.S. Customs and Border Protection ADDRESSES: Interested persons are M, part 123 is proposed to be amended must be returned by the applicant to invited to submit comments regarding as follows: DDTC upon expiration, to include when this proposed rule to the Regulations the total value or quantity has been Division, Office of General Counsel, PART 123—LICENSES FOR THE shipped. AES does not decrement the EXPORT OF DEFENSE ARTICLES Department of Housing and Urban DSP–94 authorization. Submitting the Development, 451 7th Street, SW., 1. The authority citation for part 123 Electronic Export Information is not Room 10276, Washington, DC 20410– continues to read as follows: considered to be decremented 0500. Communications must refer to the electronically for the DSP–94. A copy of Authority: Secs. 2, 38, and 71, Pub. L. 90– above docket number and title. There 629, 90 Stat. 744 (22 U.S.C. 2752, 2778, the DSP–94 must be maintained by the are two methods for submitting public 2797); 22 U.S.C. 2753; E.O. 11958, 42 FR applicant in accordance with § 122.5 of comments. All submissions must refer 4311; 3 CFR, 1977 Comp. p. 79; 22 U.S.C. this subchapter. to the above docket number and title. 2651a; 22 U.S.C. 2776; Pub. L. 105–261, 112 (4) Licenses issued but not used by 1. Submission of Comments by Mail. Stat. 1920; Sec 1205(a), Pub. L. 107–228. the applicant do not need to be returned Comments may be submitted by mail to 2. Section 123.21 is amended by to DDTC, even when expired. the Regulations Division, Office of (5) Licenses which have been revoked revising the heading and paragraph (b) General Counsel, Department of by DDTC are considered expired and to read as follows: Housing and Urban Development, 451 must be handled in accordance with 7th Street, SW., Room 10276, paragraphs (c)(1) and (2) of this section. § 123.21 Duration, renewal, and Washington, DC 20410–0001. disposition of licenses. Dated: July 7, 2011. 2. Electronic Submission of * * * * * Ellen O. Tauscher, Comments. Interested persons may (b) Unused, expired, suspended, or Under Secretary, Arms Control and submit comments electronically through revoked licenses must be handled in International Security, Department of State. the Federal eRulemaking Portal at accordance with § 123.22(c) of this [FR Doc. 2011–17806 Filed 7–13–11; 8:45 am] http://www.regulations.gov. HUD subchapter. BILLING CODE 4710–25–P strongly encourages commenters to 3. Section 123.22 is amended by submit comments electronically. revising paragraph (c) to read as follows: Electronic submission of comments § 123.22 Filing, retention, and return of DEPARTMENT OF HOUSING AND allows the commenter maximum time to export licenses and filing of export URBAN DEVELOPMENT prepare and submit a comment, ensures information. timely receipt by HUD, and enables * * * * * 24 CFR Part 200 HUD to make them immediately available to the public. Comments (c) Return of licenses. Per § 123.21 of [Docket No. FR–5458–P–01] this subchapter, all DSP licenses issued submitted electronically through the by the Directorate of Defense Trade RIN 2502–AI96 http://www.regulations.gov Web site can Controls (DDTC) must be disposed of in be viewed by other commenters and Federal Housing Administration (FHA) accordance with the following: interested members of the public. (1) DSP–5 licenses issued Appraiser Roster: Appraiser Commenters should follow the electronically by DDTC and Qualifications for Placement on the instructions provided on that site to decremented electronically by the U.S. FHA Appraiser Roster submit comments electronically. Customs and Border Protection through AGENCY: Office of the Assistant Note: To receive consideration as public the Automated Export System (AES) are Secretary of Housing—Federal Housing comments, comments must be submitted not required to be returned to DDTC. Commissioner, HUD. through one of the two methods specified The DSP–5 licenses, when fully ACTION: Proposed rule. above. Again, all submissions must refer to decremented or expired, must be the docket number and title of the rule. No maintained by the applicant in SUMMARY: This proposed rule updates Facsimile Comments. Facsimile (FAX) accordance with § 122.5 of this HUD’s regulations to conform to the comments are not acceptable. subchapter. statutory requirement that appraisers Public Inspection of Public (2) DSP–5, DSP–61, DSP–73, and must be certified, rather than licensed, Comments. All properly submitted DSP–85 licenses issued by DDTC but by a state appraisal licensing board in comments and communications not decremented electronically by the order to appear on the FHA Appraiser submitted to HUD will be available for U.S. Customs and Border Protection Roster. This requirement was public inspection and copying between through AES (e.g., oral or visual established by the Housing and 8 a.m. and 5 p.m. weekdays at the above technical data releases or temporary Economic Recovery Act of 2008. address. Due to security measures at the import and export licenses retained in Although current HUD practice is in HUD Headquarters building, an advance

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appointment to review the public that all appraisers chosen or approved HUD to decide upon which nationally comments must be scheduled by calling to conduct appraisals of properties that recognized professional appraisal the Regulations Division at 202–708– will be security for FHA-insured organizations HUD would designate as 3055 (this is not a toll-free number). mortgages must be ‘‘certified’’: (1) By organizations acceptable for certification Individuals with speech or hearing the state in which the property to be of appraisers who would be approved impairments may access this number appraised is located, or by a nationally for the FHA Appraiser Roster. HUD via TTY by calling the toll-free Federal recognized professional appraisal would need to review the organization’s Relay Service at 800–877–8339. Copies organization; and (2) have demonstrated appraiser approval criteria and ensure of all comments submitted are available verifiable education in the appraisal that the organization, in fact, issues for inspection and downloading at requirements established by FHA. certifications. Since HERA allowed for http://www.regulations.gov. Under amended section 202(g) of the FHA-approved appraisers to be state- FOR FURTHER INFORMATION CONTACT: National Housing Act, licensed certified appraisers, HUD determined, Karin Hill, Director, Office of Single appraisers are no longer authorized to as is more fully discussed in the next Family Program Development, Office of conduct appraisals of properties section, that state-certified appraisers Housing, Department of Housing and securing an FHA-insured mortgage. not only meet the higher education and Urban Development, 451 7th Street, In order to comply with HERA’s experience standards that HERA sought SW., Room 9278, Washington, DC requirements governing who qualifies as to be used for FHA-insured transactions 20410–8000; telephone number 202– an FHA-approved appraiser, HUD (all states provide for higher education 708–2121 (this is not a toll-free issued a Mortgagee Letter, ML 2008–39, and experience standards for state- on December 17, 2008. The mortgagee number). Persons with hearing or certified appraisers than are provided letter advised appraisers of the revised speech impairments may access this for state-licensed appraisers) but also eligibility requirements to qualify for number via TTY by calling the Federal that utilizing only state-certified placement on the FHA Appraiser Roster Relay Service at 1–800–877–8339. appraisers is a more efficient and and provided a timeline for expedient approach to ensure the SUPPLEMENTARY INFORMATION: implementation of those requirements. availability of highly qualified I. Background Despite the fact that HERA’s provisions appraisers to serve as FHA-approved were made effective upon enactment, appraisers. A. The FHA Appraiser Roster FHA determined that the loss of available FHA Roster appraisers in C. Nationally Recognized Professional To qualify for FHA insurance for a Appraiser Organizations single-family mortgage, a lender must certain locations would impede its obtain an appraisal of the property that ability to support affordable mortgage HERA provides that appraisers may is to be the security for the loan. Only financing in those areas and hinder use either be state-certified or certified by a an appraiser listed on HUD’s FHA of FHA single-family programs at a time ‘‘nationally recognized professional Appraiser Roster may perform the when use of those programs has appraisal organization’’ in order to appraisal. Under HUD’s current increased significantly. Therefore, in appear on the Roster. FHA recognizes regulation in 24 CFR 200.202(b), an order to implement this change in the potential benefits of the flexibility of applicant who wishes to be included on appraiser eligibility requirements in a accepting either form of certification. the FHA Appraiser Roster must be a manner that was not disruptive to the However, FHA has determined that in state-licensed or state-certified appraiser FHA mortgage lending process, ML order to prevent disruption and to under the minimum criteria issued by 2008–39 provided a deadline of October ensure efficient processing of mortgage the Appraiser Qualifications Board 1, 2009, for all FHA appraisers on the insurance, FHA will accept only state (AQB) of the Appraisal Foundation, a Appraisal Roster to become state- certification and not the certification of not-for-profit, private educational certified. In addition, the mortgage letter a ‘‘nationally recognized professional foundation. The applicant must not be indicated that FHA had ceased to accept appraisal organization.’’ Currently, there are approximately listed on the General Services applications by state-licensed appraisers 55,000 appraisers on the Roster, and all Administration’s Suspension and on October 1, 2008, in order to comply 2 of these appraisers are state-certified Debarment list, on HUD’s Limited with HERA. and would already be in compliance Denial of Participation list, or in HUD’s Given the need to implement the new with the changes this proposed rule Credit Alert Interactive Voice Response HERA requirements as quickly as would make. Accordingly, choice of System (CAIVRS). HUD’s regulations for possible, HUD chose the HERA option appraisers who are state-certified would the Appraiser Roster are codified in that FHA appraisers must be state- mean no interruption of processing subpart G of 24 CFR part 200 (consisting certified rather than the option that would permit appraisers to be certified mortgage insurance. FHA recognizes of §§ 200.200–200.206). by appraisal organizations. HUD that in ML 2008–39 it was announced B. The Housing and Economic Recovery recognized that it would take time for that FHA considered the Appraisal Act of 2008 Foundation to be a nationally recognized professional appraisal Section 1404 of the Housing and National Housing Act. Besides amending the FHA appraiser qualifications, HERA, in section 2116, organization and that FHA would Economic Recovery Act of 2008 (HERA) redesignated section 202(e) as 202(f). Section 203(b) publish a notice in the Federal Register (Pub. L. 110–289, approved July 30, of the Helping Families Save Their Homes Act of requesting comments on what FHA 2008) amended section 202 of the 2009 (Pub. L. 111–22, approved May 20, 2009) added a new subsection (d) to section 202 of the should consider in examining nationally National Housing Act (12 U.S.C. 1708) National Housing Act entitled ‘‘Limitations on recognized professional appraisal to revise qualification standards for Participation in Origination and Mortgagee organizations. Upon further FHA-approved appraisers. HERA Approval.’’ Consequently, the provision regarding consideration, FHA has determined that amended what is now section 202(g) of FHA appraisers was redesignated as section 202(g) of the National Housing Act, the section where the while the Appraisal Foundation may be the National Housing Act 1 to mandate provision is contained at the time of this writing. a nationally recognized professional 2 Copies of the mortgagee letters referenced in this appraisal organization, it does not issue 1 Before HERA was enacted on July 30, 2008, the final rule may be downloaded from: http:// statutory provisions regarding FHA appraiser www.hud.gov/offices/adm/hudclips/letters/ certifications. In addition, because state qualifications were codified in section 202(e) of the mortgagee/. certification sufficiently accomplishes

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the statutory purpose of ensuring higher ‘‘Credit Alert Verification Reporting Unfunded Mandates Reform Act quality appraisals, it is unnecessary to System,’’ the new appraiser alert system Title II of the Unfunded Mandates request comments on nationally put in place by ML 2008–18. Reform Act of 1995 (2 U.S.C. 1531– recognized professional appraisal III. Findings and Certification 1538) (UMRA) establishes requirements organizations. for federal agencies to assess the effects D. Credit Alert Interactive Voice Regulatory Flexibility Act of their regulatory actions on state, Response System (CAIVRS) local, and tribal governments, and on The Regulatory Flexibility Act (RFA) the private sector. This rule does not CAIVRS was implemented in 1988 as (5 U.S.C. 601 et seq.) generally requires impose any federal mandates on any an FHA loan origination aid. CAIVRS is an agency to conduct a regulatory state, local, or tribal governments, or on used to determine if a potential flexibility analysis of any rule subject to the private sector, within the meaning of borrower has a federal debt that is notice and comment rulemaking UMRA. currently in default or foreclosure or has requirements, unless the agency certifies had a claim paid by the reporting that the rule will not have a significant Environmental Impact agency within the last 3 years. Federally economic impact on a substantial This proposed rule does not direct, approved lenders use CAIVRS to number of small entities. prescreen all applicants for federally provide for assistance or loan and insured loans. Since 1997, FHA- The proposed rule would not add any mortgage insurance for, or otherwise approved lenders have had Internet new regulatory burdens on FHA- govern or regulate, real property access to CAIVRS via the FHA approved appraisers or applicants for acquisition, disposition, leasing, Connection online system to check the FHA approval. HERA requires that an rehabilitation, alteration, demolition, or Social Security Number of each appraiser be state-certified to be new construction, or establish, revise, or borrower and coborrower or nonprofit approved by FHA to be on the Appraiser provide for standards for construction or agency acting as a borrower listed on a Roster. HUD ceased accepting construction materials, manufactured new FHA loan application. As noted applications from state-licensed housing, or occupancy. Accordingly, above, under the existing FHA appraisers on October 1, 2008, and all under 24 CFR 50.19(c)(1), this rule is Appraiser Roster regulations, an appraisers already on the Appraiser categorically excluded from appraiser will not be approved by FHA Roster must have become state-certified environmental review under the if the appraiser is listed on CAIVRS and by October 1, 2009, to remain on the National Environmental Policy Act of thus has a federal debt that is currently Appraiser Roster. This proposed rule 1969 (42 U.S.C. 4321). in default or foreclosure or has had a will not create new costs for small Paperwork Reduction Act claim paid by the reporting agency entities of appraisers or of lenders within the last 3 years. because the rule does not impose any The information collection On July 11, 2008, HUD issued ML new requirements on appraisers. In requirements for this rule have been 2008–18, stating that HUD was addition, FHA’s Appraisal Roster approved by the Office of Management discontinuing telephone access to pertains solely to individuals, not to and Budget (OMB) under the Paperwork CAIVRS because the hardware entities. Individual appraisers must Reduction Act of 1995 (44 U.S.C. 3501– supporting the telephone access was apply to be on the FHA Appraiser 3520) and assigned OMB control obsolete and could no longer be Roster. Therefore, the undersigned number 2502–0538. In accordance with repaired or maintained. Access to certifies that this rule will not have a the Paperwork Reduction Act, an agency CAIVRS is now available solely through significant impact on a substantial may not conduct or sponsor, and a the Internet, and CAIVRS is now known number of small entities. person is not required to respond to, a as the Credit Alert Verification collection of information, unless the Notwithstanding HUD’s view that this Reporting System, although the collection displays a currently valid rule will not have a significant effect on acronym remains the same. OMB control number. a substantial number of small entities, II. This Proposed Rule HUD specifically invites comments Catalogue of Federal Domestic Assistance This proposed rule conforms the FHA regarding any less burdensome Appraiser Roster regulations regarding alternatives to this rule that will meet The Catalogue of Federal Domestic eligibility requirements of appraisers to HUD’s objectives as described in this Assistance Number for the principal qualify for placement and retention on preamble. FHA single-family mortgage insurance the Appraiser Roster by making the Executive Order 13132, Federalism program is 14.117. regulations consistent with both HERA’s List of Subjects in 24 CFR Part 200 mandate that all FHA approved Executive Order 13132 (entitled appraisers be state-certified and HUD’s ‘‘Federalism’’) prohibits an agency from Administrative practice and current policy regarding state- publishing any rule that has federalism procedure, Claims, Equal employment certification of appraisers as set forth in implications if the rule either imposes opportunity, Fair housing, Housing ML 2008–39. In order to make the substantial direct compliance costs on standards, Lead poisoning, Loan Appraiser Roster regulations consistent state and local governments and is not programs—housing and community with current statute, all references to required by statute, or the rule preempts development, Mortgage insurance, state licensing and state-licensed state law, unless the agency meets the Organization and functions appraisers are removed from the consultation and funding requirements (Government agencies), Penalties, regulations in § 200.202 and § 200.204. of section 6 of the Executive Order. This Reporting and recordkeeping This final rule also eliminates the rule will not have federalism requirements, Social Security, reference to the Credit Alert Interactive implications and would not impose Unemployment compensation, Wages. Voice Response System in § 200.202. substantial direct compliance costs on Accordingly, for the reasons Because the Credit Alert Interactive state and local governments or preempt discussed in the preamble, HUD Voice Response System no longer exists, state law within the meaning of the proposes to amend 24 CFR part 200 to the phrase has been replaced with Executive Order. read as follows:

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PART 200—INTRODUCTION TO FHA ENVIRONMENTAL PROTECTION Instructions: Direct your comments to PROGRAMS AGENCY Docket ID No. EPA–R03–OAR–2010– 0160. EPA’s policy is that all comments 1. The authority citation for part 200 40 CFR Part 52 received will be included in the public continues to read as follows: docket without change, and may be [EPA–R03–OAR–2010–0160; FRL–9438–8] Authority: 12 U.S.C. 1702–1715–z–21; 42 made available online at http:// U.S.C. 3535(d). Approval and Promulgation of Air www.regulations.gov, including any 2. In § 200.202, revise paragraphs Quality Implementation Plans; personal information provided, unless (b)(1) and (b)(2)(iii) as follows: Commonwealth of Virginia; Section the comment includes information 110(a)(2) Infrastructure Requirements claimed to be Confidential Business § 200.202 How do I apply for placement on for the 1997 8-Hour Ozone and the Information (CBI) or other information the Appraiser Roster? 1997 and 2006 Fine Particulate Matter whose disclosure is restricted by statute. * * * * * National Ambient Air Quality Do not submit information that you (b) * * * Standards consider to be CBI or otherwise (1) You must be a state-certified protected through http:// appraiser with credentials that complied AGENCY: Environmental Protection www.regulations.gov or e-mail. The with the applicable certification criteria Agency (EPA). http://www.regulations.gov Web site is established by the Appraiser ACTION: Proposed rule. an ‘‘anonymous access system’’ which Qualification Board (AQB) of the means EPA will not know your identity Appraisal Foundation and in effect at SUMMARY: EPA is proposing to approve or contact information unless you the time the certification was awarded submittals from the Commonwealth of provide it in the body of your comment. by the issuing jurisdiction; and Virginia pursuant to the Clean Air Act If you send an e-mail comment directly (2) * * * (CAA) sections 110(k)(2) and (3). These to EPA without going through http:// (iii) HUD’s Credit Alert Verification submittals address the infrastructure www.regulations.gov, your e-mail Reporting System. elements specified in CAA section address will be automatically captured 3. In § 200.204, revise paragraphs 110(a)(2), necessary to implement, and included as part of the comment (a)(1)(ii), (c)(1) and (2) as follows: maintain, and enforce the 1997 8-hour that is placed in the public docket and ozone and fine particulate matter (PM2.5) made available on the Internet. If you § 200.204 What actions may HUD take national ambient air quality standards against unsatisfactory appraisers on the submit an electronic comment, EPA Appraiser Roster? (NAAQS) and the 2006 PM2.5 NAAQS. recommends that you include your This proposed action is limited to the * * * * * name and other contact information in following infrastructure elements which the body of your comment and with any (a) * * * were subject to EPA’s completeness (1) * * * disk or CD–ROM you submit. If EPA findings pursuant to CAA section (ii) Losing standing as a state-certified cannot read your comment due to 110(k)(1) for the 1997 8-hour ozone appraiser due to disciplinary action in technical difficulties and cannot contact NAAQS dated March 27, 2008 and the any state in which the appraiser is you for clarification, EPA may not be 1997 PM NAAQS dated October 22, certified; 2.5 able to consider your comment. 2008: 110(a)(2)(A), (B), (C), (D)(ii), (E), Electronic files should avoid the use of * * * * * (F), (G), (H), (J), (K), (L), and (M), or special characters, any form of (c) * * * portions thereof; and the following (1) Appraisers subject to state encryption, and be free of any defects or infrastructure elements for the 2006 viruses. disciplinary action. An appraiser whose PM NAAQS: 110(a)(2)(A), (B), (C), 2.5 Docket: All documents in the state certification in any state has been (D)(ii), (E), (F), (G), (H), (J), (K), (L), and electronic docket are listed in the revoked, suspended, or surrendered as a (M), or portions thereof. result of a state disciplinary action is http://www.regulations.gov index. DATES: automatically suspended from the Written comments must be Although listed in the index, some Appraiser Roster and prohibited from received on or before August 15, 2011. information is not publicly available, conducting FHA appraisals in any state ADDRESSES: Submit your comments, i.e., CBI or other information whose until HUD receives evidence identified by Docket ID Number EPA– disclosure is restricted by statute. demonstrating that the state-imposed R03–OAR–2010–0160 by one of the Certain other material, such as sanction has been lifted. following methods: copyrighted material, is not placed on (2) Expirations not due to state A. http://www.regulations.gov. Follow the Internet and will be publicly disciplinary action. An appraiser whose the on-line instructions for submitting available only in hard copy form. certification in a state has expired is comments. Publicly available docket materials are automatically suspended from the B. E-mail: available either electronically in http:// Appraiser Roster in that state and may [email protected]. www.regulations.gov or in hard copy not conduct FHA appraisals in that state C. Mail: EPA–R03–OAR–2010–0160, during normal business hours at the Air until HUD receives evidence that Cristina Fernandez, Associate Director, Protection Division, U.S. Environmental demonstrates renewal, but may continue Office of Air Program Planning, Protection Agency, Region III, 1650 to perform FHA appraisals in other Mailcode 3AP30, U.S. Environmental Arch Street, Philadelphia, Pennsylvania states in which the appraiser is certified. Protection Agency, Region III, 1650 19103. Copies of the State submittal are * * * * * Arch Street, Philadelphia, Pennsylvania available at the Virginia Department of 19103. Environmental Quality, 629 East Main Dated: June 14, 2011. D. Hand Delivery: At the previously- Street, Richmond, Virginia 23219. Robert C. Ryan, listed EPA Region III address. Such FOR FURTHER INFORMATION CONTACT: Acting Assistant Secretary for Housing— deliveries are only accepted during the Marilyn Powers, (215) 814–2380, or by Federal Housing Commissioner. Docket’s normal hours of operation, and e-mail at [email protected]. [FR Doc. 2011–17498 Filed 7–13–11; 8:45 am] special arrangements should be made BILLING CODE 4210–67–P for deliveries of boxed information. SUPPLEMENTARY INFORMATION:

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I. Background promulgation of such NAAQS. In March required by Part D of Title I of the CAA; On July 18, 1997, EPA promulgated a of 2004, Earthjustice initiated a lawsuit (2) section 110(a)(2)(I); and (3) section revised 8-hour ozone NAAQS (62 FR against EPA for failure to take action 110(a)(2)(D)(i)(I), which has been against States that had not made SIP 38856) and a new PM2.5 NAAQS (62 FR addressed by a separate finding issued 38652). The revised ozone NAAQS is submissions to meet the requirements of by EPA on April 25, 2005 (70 FR 21147). based on 8-hour average concentrations. sections 110(a)(1) and (2) for the 1997 Therefore, this action does not cover The 8-hour averaging period replaced 8-hour ozone and PM2.5 NAAQS, i.e., these specific elements. the previous 1-hour averaging period, failure to make a ‘‘finding of failure to This action also does not include the submit the required SIP 110(a) SIP and the level of the NAAQS was portions of 110(a)(2)(C), (D)(i)(II), and (J) elements.’’ On March 10, 2005, EPA changed from 0.12 parts per million as they pertain to a permit program as entered into a Consent Decree with (ppm) to 0.08 ppm. The new PM2.5 required by Part C of Title I of the CAA, Earthjustice that obligated EPA to make NAAQS established a health-based and the portion of 110(a)(2)(D)(i)(II) as it official findings in accordance with PM2.5 standard of 15.0 micrograms per pertains to visibility. These portions of cubic meter (μg/m3) based on a 3-year section 110(k)(1) of the CAA as to whether States have made required these elements will be addressed by average of annual mean PM2.5 separate actions. concentrations, and a twenty-four hour complete SIP submissions, pursuant to standard of 65 μg/m3 based on a 3-year sections 110(a)(1) and (2), by December II. Summary of State Submittal average of the 98th percentile of 24-hour 15, 2007 for the 1997 8-hour ozone concentrations. EPA strengthened the NAAQS and by October 5, 2008 for the Virginia provided multiple submittals 3 24-hour PM2.5 NAAQS from 65 μg/m to 1997 PM2.5 NAAQS. EPA made such to satisfy the section 110(a)(2) 35 μg/m3 on October 17, 2006 (71 FR findings for the 1997 8-hour ozone requirements that are the subject of this 61144). NAAQS on March 27, 2008 (73 FR proposed action for the 1997 8-hour Section 110(a) of the CAA requires 16205) and on October 22, 2008 (73 FR ozone NAAQS and the 1997 and 2006 States to submit State Implementation 62902) for the 1997 PM2.5 NAAQS. PM2.5 NAAQS. The submittals shown in Plans (SIPs) that provide for the These completeness findings did not Table 1 address the infrastructure implementation, maintenance, and include findings relating to: (1) Section elements, or portions thereof, identified enforcement of new or revised NAAQS 110(a)(2)(C) to the extent that such in section 110(a)(2) that EPA is within three years following the subsection refers to a permit program as proposing to approve.

TABLE 1—110(A)(2) ELEMENTS, OR PORTIONS THEREOF, EPA IS PROPOSING TO APPROVE FOR THE 1997 OZONE AND PM2.5 NAAQS AND THE 2006 PM2.5 NAAQS FOR VIRGINIA

Submittal date 1997 8-Hour ozone 1997 PM2.5 2006 PM2.5

December 10, 2007 ...... B, E, G, H, J, M. December 13, 2007 ...... A, C, D(ii), F, G, K, L. July 10, 2008 ...... B, E, G, H, J, K, M. September 2, 2008 ...... A, C, D(ii), F, G, K, L. June 8, 2010 ...... E(ii) ...... E(ii). June 9, 2010 ...... E(ii) ...... E(ii). August 30, 2010 ...... G ...... G. April 1, 2011 ...... A, B, C, D(ii), E, F, G, H, J, K, L, M.

EPA analyzed the above identified performed by a regulated entity. The That are generated or developed before submissions and is proposing to make a legislation further addresses the relative the commencement of a voluntary determination that such submittals meet burden of proof for parties either environmental assessment; (2) that are the requirements of section 110(a)(2)(A), asserting the privilege or seeking prepared independently of the (B), (C), (D)(ii), (E), (F), (G), (H), (J), (K), disclosure of documents for which the assessment process; (3) that demonstrate (L), and (M), or portions thereof, for the privilege is claimed. Virginia’s a clear, imminent and substantial 1997 8-hour ozone and PM2.5 NAAQS legislation also provides, subject to danger to the public health or and the 2006 PM2.5 NAAQS. A detailed certain conditions, for a penalty waiver environment; or (4) that are required by summary of EPA’s review of, and for violations of environmental laws law. rationale for approving Virginia’s when a regulated entity discovers such On January 12, 1998, the submittals may be found in the violations pursuant to a voluntary Commonwealth of Virginia Office of the Technical Support Document (TSD) for compliance evaluation and voluntarily Attorney General provided a legal this action, which is available online at discloses such violations to the opinion that states that the Privilege http://www.regulations.gov, Docket Commonwealth and takes prompt and law, Va. Code Sec. 10.1–1198, precludes number EPA–R03–OAR–2010–0160. appropriate measures to remedy the granting a privilege to documents and III. General Information Pertaining to violations. Virginia’s Voluntary information ‘‘required by law,’’ SIP Submittals From the Environmental Assessment Privilege including documents and information Commonwealth of Virginia Law, Va. Code Sec. 10.1–1198, provides ‘‘required by Federal law to maintain a privilege that protects from disclosure program delegation, authorization or In 1995, Virginia adopted legislation documents and information about the approval,’’ since Virginia must ‘‘enforce that provides, subject to certain content of those documents that are the Federally authorized environmental conditions, for an environmental product of a voluntary environmental programs in a manner that is no less assessment (audit) ‘‘privilege’’ for assessment. The Privilege Law does not stringent than their Federal voluntary compliance evaluations extend to documents or information (1) counterparts. * * *’’ The opinion

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concludes that ‘‘[r]egarding § 10.1–1198, V. Statutory and Executive Order located in the state, and EPA notes that therefore, documents or other Reviews it will not impose substantial direct information needed for civil or criminal Under the CAA, the Administrator is costs on tribal governments or preempt enforcement under one of these required to approve a SIP submission tribal law. programs could not be privileged that complies with the provisions of the List of Subjects in 40 CFR Part 52 because such documents and CAA and applicable Federal regulations. Environmental protection, Air information are essential to pursuing 42 U.S.C. 7410(k); 40 CFR 52.02(a). pollution control, Nitrogen dioxide, enforcement in a manner required by Thus, in reviewing SIP submissions, Ozone, Particulate matter, Reporting Federal law to maintain program EPA’s role is to approve state choices, and recordkeeping requirements, delegation, authorization or approval.’’ provided that they meet the criteria of Volatile organic compounds. Virginia’s Immunity law, Va. Code the CAA. Accordingly, this action Sec. 10.1–1199, provides that ‘‘[t]o the merely proposes to approve state law as Authority: 42 U.S.C. 7401 et seq. extent consistent with requirements meeting Federal requirements and does Dated: June 27, 2011. imposed by Federal law,’’ any person not impose additional requirements W.C. Early, making a voluntary disclosure of beyond those imposed by state law. For Acting Regional Administrator, Region III. that reason, this proposed action: information to a state agency regarding [FR Doc. 2011–17766 Filed 7–13–11; 8:45 am] • Is not a ‘‘significant regulatory a violation of an environmental statute, BILLING CODE 6560–50–P regulation, permit, or administrative action’’ subject to review by the Office order is granted immunity from of Management and Budget under administrative or civil penalty. The Executive Order 12866 (58 FR 51735, October 4, 1993); DEPARTMENT OF COMMERCE Attorney General’s January 12, 1998 • opinion states that the quoted language Does not impose an information collection burden under the provisions National Oceanic and Atmospheric renders this statute inapplicable to of the Paperwork Reduction Act (44 Administration enforcement of any Federally authorized U.S.C. 3501 et seq.); programs, since ‘‘no immunity could be • Is certified as not having a 50 CFR Part 226 afforded from administrative, civil, or significant economic impact on a RIN 0648–BA81 criminal penalties because granting substantial number of small entities such immunity would not be consistent under the Regulatory Flexibility Act Endangered and Threatened Wildlife with Federal law, which is one of the (5 U.S.C. 601 et seq.); and Plants; Public Hearings for criteria for immunity.’’ • Does not contain any unfunded Proposed Rulemaking To Revise Therefore, EPA has determined that mandate or significantly or uniquely Critical Habitat for Hawaiian Monk Virginia’s Privilege and Immunity affect small governments, as described Seals statutes will not preclude the in the Unfunded Mandates Reform Act Commonwealth from enforcing its of 1995 (Pub. L. 104–4); AGENCY: Commerce, National Oceanic program consistent with the Federal • Does not have Federalism and Atmospheric Administration requirements. In any event, because implications as specified in Executive (NOAA), National Marine Fisheries EPA has also determined that a state Order 13132 (64 FR 43255, August 10, Service (NMFS). audit privilege and immunity law can 1999); ACTION: Notice of public hearings. affect only state enforcement and cannot • Is not an economically significant SUMMARY: have any impact on Federal regulatory action based on health or We, National Marine enforcement authorities, EPA may at safety risks subject to Executive Order Fisheries Service (NMFS), are announcing six public hearings to be any time invoke its authority under the 13045 (62 FR 19885, April 23, 1997); • held for the proposed rule to revise CAA, including, for example, sections Is not a significant regulatory action critical habitat for the Hawaiian monk 113, 167, 205, 211 or 213, to enforce the subject to Executive Order 13211 (66 FR seal, which was published in the requirements or prohibitions of the state 28355, May 22, 2001); • Federal Register on June 2, 2011. See plan, independently of any state Is not subject to requirements of SUPPLEMENTARY INFORMATION for meeting enforcement effort. In addition, citizen Section 12(d) of the National Technology Transfer and Advancement dates and locations. As noted in the enforcement under section 304 of the proposed rule, we will consider written CAA is likewise unaffected by this, or Act of 1995 (15 U.S.C. 272 note) because application of those requirements would comments received on or before August any, state audit privilege or immunity 31, 2011. law. be inconsistent with the CAA; and • Does not provide EPA with the ADDRESSES: IV. Proposed Action discretionary authority to address, as See SUPPLEMENTARY INFORMATION for appropriate, disproportionate human meeting dates and locations. You may EPA is proposing to approve health or environmental effects, using submit written comments on the Virginia’s submittals that provide the practicable and legally permissible proposed rule identified by 0648–BA81 basic program elements specified in the methods, under Executive Order 12898 by any one of the following methods: CAA sections 110(a)(2)(A), (B), (C), (59 FR 7629, February 16, 1994). • Electronic Submissions: Federal (D)(ii), (E), (F), (G), (H), (J), (K), (L), and In addition, this proposed rule, eRulemaking Portal: http:// (M), or portions thereof, necessary to pertaining to Virginia’s section 110(a)(2) www.regulations.gov. Follow the implement, maintain, and enforce the infrastructure requirements for the 1997 instructions for submitting comments. 1997 8-hour ozone and PM2.5 NAAQS 8-hour ozone and PM2.5 NAAQS, and • Mail or hand-delivery: Submit and the 2006 PM2.5 NAAQS. EPA is the 2006 PM2.5 NAAQS, does not have written comments to Regulatory Branch soliciting public comments on the tribal implications as specified by Chief, Protected Resources Division, issues discussed in this document. Executive Order 13175 (65 FR 67249, National Marine Fisheries Service, These comments will be considered November 9, 2000), because the SIP is Pacific Islands Regional Office, 1601 before taking final action. not approved to apply in Indian country Kapiolani Blvd., Suite 1110, Honolulu,

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HI, 96814, Attn.: Hawaiian monk seal Background monk seal critical habitat (76 FR 32026; proposed critical habitat. In the notice of the proposed June 2, 2011) during these hearings as Instructions: Comments must be rulemaking, we propose to revise the described in this notice. submitted to one of these two addresses current critical habitat for the Hawaiian Dates and Locations of the Hearings to ensure that the comments are monk seal (Monachus schauinslandi) by received, documented, and considered extending the current designation in the August 8, 2011—Mitchell Pauole by NMFS. Comments sent to any other Northwestern Hawaiian Islands (NWHI) Center, 90 Ainoa Street, Kaunakakai, address or individual, or received after out to the 500-meter (m) depth contour Molokai 96748—5:30–8 p.m. the end of the comment period, may not and including Sand Island at Midway August 9, 2011—Kihei Community be considered. All comments received Islands; and by designating six new Center, 303 E. Lipoa Street, Kihei, Maui are a part of the public record and will areas in the main Hawaiian Islands 96753—5:30–8 p.m. generally be posted to http:// (MHI), pursuant to section 4 of the August 10, 2011—Kauai War www.regulations.gov without change. Endangered Species Act (ESA). Specific Memorial Convention Hall, 4191 Hardy All Personal Identifying Information areas proposed for the MHI include Street, Lihue, Kauai 96766—5:30–8 p.m. (e.g., name, address) voluntarily terrestrial and marine habitat from 5 m August 11, 2011—McCoy Pavilion at submitted by the commenter may be inland from the shoreline extending Ala Moana Park, 1201 Ala Moana Blvd., publicly accessible. Do not submit seaward to the 500-m depth contour Honolulu, Oahu 96814—5:30–8 p.m. Confidential Business Information or around: Kaula Island, Niihau, Kauai, August 15, 2011—Mokupapapa otherwise sensitive or protected Oahu, Maui Nui (including Kahoolawe, Discovery Center, 308 Kamehameha information. We will accept anonymous Lanai, Maui, and Molokai), and Hawaii Avenue, Suite 109, Hilo, Hawaii comments (enter ‘‘NA’’ in the required (except those areas that have been 96720—5:30–8 p.m. fields if you wish to remain identified as not included in the August 16, 2011—Kahakai Elementary anonymous). Attachments to electronic designation). We propose to exclude the School, 76–147 Royal Poinciana Drive, comments will be accepted in Microsoft following areas from designation Kailua Kona, Hawaii 96740—6:30–9 Word, Excel, WordPerfect, or Adobe because the national security benefits of p.m. PDF file formats only. The petition, exclusion outweigh the benefits of Oral and written comments on the 90-day finding, 12-month finding, draft inclusion, and exclusion will not result proposed rule to revise Hawaiian monk biological report, draft economic in extinction of the species: Kingfisher seal critical habitat (76 FR 32026; June analysis report, draft ESA 4(b)(2) report, Underwater Training area in marine 2, 2011) received during these hearings and other reference materials regarding areas off the northeast coast of Niihau; will be part of the administrative record. this determination can be obtained via Pacific Missile Range Facility Main Base People wishing to make an oral the NMFS Pacific Islands Regional at Barking Sands, Kauai; Pacific Missile statement for the record at a public Office Web site: http:// Range Facility Offshore Areas in marine hearing are encouraged to provide a www.fpir.noaa.gov/PRD/ areas off the western coast of Kauai; the written copy of the statement and prd_critical_habitat.html or by Naval Defensive Sea Area and Puuloa present it to us at the hearing. In the submitting a request to the Regulatory Underwater Training Range in marine event that attendance at the public Branch Chief, Protected Resources areas outside Pearl Harbor, Oahu; and hearings is large, the time allotted for Division, National Marine Fisheries the Shallow Water Minefield Sonar oral statements may be limited. Oral and Service, Pacific Islands Regional Office, Training Range off the western coast of written statements receive equal 1601 Kapiolani Blvd., Suite 1110, Kahoolawe in the Maui Nui area. In consideration. There are no limits on Honolulu, HI 96814, Attn: Hawaiian addition we are soliciting comments on the length of written comments monk seal proposed critical habitat. all aspects of the proposal, including submitted to us. information on the economic, national Background documents on the biology Special Accommodations of the Hawaiian monk seal, the July 2, security, and other relevant impacts. We 2008, petition requesting revision of its will consider additional information These meetings are physically critical habitat, and documents received prior to making a final decision accessible to people with disabilities. explaining the critical habitat on critical habitat designation. Persons requesting sign language designation process, can be downloaded interpretation or other reasonable Public Hearings from http://www.fpir.noaa.gov/PRD/ accommodations to participate in the prd_critical_habitat.html, or requested Joint Commerce-Interior ESA public meetings should contact Jean by phone or e-mail from the NMFS staff implementing regulations state that the Higgins (808) 944–2157. To allow in Honolulu (area code 808) listed under Secretary of Commerce shall promptly sufficient time to process requests, FOR FURTHER INFORMATION CONTACT. hold at least one public hearing if any please call not later than 5 p.m. on July person requests one with 45 days of 28, 2011. FOR FURTHER INFORMATION CONTACT: Jean publication of a proposed regulation to Authority: 16 U.S.C. 1533 et seq. Higgins, NMFS, Pacific Islands Regional list a species or to designate critical Office, (808) 944–2157; Lance Smith, habitat (see 50 CFR 424.16 (c)(3)). To Dated: July 11, 2011. NMFS, Pacific Islands Regional Office, allow the public an opportunity to James H. Lecky, (808) 944–2258; or Marta Nammack, provide comment on the proposed rule, Director, Office of Protected Resources, NMFS, Office of Protected Resources we will hold six public hearings. We National Marine Fisheries Service. (301) 427–8403. will accept oral and written comments [FR Doc. 2011–17763 Filed 7–13–11; 8:45 am] SUPPLEMENTARY INFORMATION: on the proposed rule to revise Hawaiian BILLING CODE 3510–22–P

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Notices Federal Register Vol. 76, No. 135

Thursday, July 14, 2011

This section of the FEDERAL REGISTER displays a currently valid OMB control Public Law 104–13. Comments contains documents other than rules or number. regarding: (a) Whether the collection of proposed rules that are applicable to the information is necessary for the proper Rural Utilities Service public. Notices of hearings and investigations, performance of the functions of the committee meetings, agency decisions and Title: RUS Form 87, Request for Mail agency, including whether the rulings, delegations of authority, filing of List Data. information will have practical utility; petitions and applications and agency OMB Control Number: 0572–0051. statements of organization and functions are (b) the accuracy of the agency’s estimate Summary of Collection: The Rural of burden including the validity of the examples of documents appearing in this Utilities Service (RUS) is a credit agency section. methodology and assumptions used; (c) of the U.S. Department of Agriculture. ways to enhance the quality, utility and The agency makes loans (direct and clarity of the information to be DEPARTMENT OF AGRICULTURE guaranteed) to finance electric and collected; (d) ways to minimize the telecommunications facilities in rural burden of the collection of information Submission for OMB Review; areas in accordance with the Rural on those who are to respond, including Comment Request Electrification Act of 1936, 7 U.S.C. 901 through the use of appropriate as amended, (ReAct). RUS Electric automated, electronic, mechanical, or July 11, 2011. Program provides support to the vast other technological collection The Department of Agriculture has rural American electric infrastructure. techniques or other forms of information submitted the following information RUS’ Telecommunications Program technology should be addressed to: Desk collection requirement(s) to OMB for makes loans to furnish and improve Officer for Agriculture, Office of review and clearance under the telephone services and other Information and Regulatory Affairs, Paperwork Reduction Act of 1995, telecommunications purposes in rural Office of Management and Budget Public Law 104–13. Comments areas. (OMB), [email protected] regarding (a) Whether the collection of Need and Use of the Information: or fax (202) 395–5806 and to information is necessary for the proper RUS will collect information using RUS Departmental Clearance Office, USDA, performance of the functions of the Form 87, Request for Mail List Data. The OCIO, Mail Stop 7602, Washington, DC agency, including whether the information is used for the RUS Electric 20250–7602. Comments regarding these information will have practical utility; and Telephone programs to obtain the information collections are best assured (b) the accuracy of the agency’s estimate name and addresses of the borrowers’ of having their full effect if received of burden including the validity of the officers/board of directors and corporate within 30 days of this notification. methodology and assumptions used; (c) officials, who are authorized to sign Copies of the submission(s) may be ways to enhance the quality, utility and official documents. RUS uses the obtained by calling (202) 720–8681. clarity of the information to be information to assure that (1) Accurate, An agency may not conduct or collected; (d) ways to minimize the current, and verifiable information is sponsor a collection of information burden of the collection of information available; (2) correspondence with unless the collection of information on those who are to respond, including borrowers is properly directed; and (3) displays a currently valid OMB control through the use of appropriate the appropriate officials have signed the number and the agency informs automated, electronic, mechanical, or official documents submitted. potential persons who are to respond to other technological collection Description of Respondents: Not-for- the collection of information that such techniques or other forms of information profit institutions; Business or other for- persons are not required to respond to technology should be addressed to: Desk profit. the collection of information unless it Officer for Agriculture, Office of Number of Respondents: 1,150. displays a currently valid OMB control Information and Regulatory Affairs, Frequency of Responses: Reporting: number. Office of Management and Budget On occasion. (OMB), [email protected] Total Burden Hours: 288. Rural Housing Service or fax (202) 395–5806 and to Charlene Parker, Title: 7 CFR 1951–E, ‘‘Servicing of Departmental Clearance Office, USDA, Community and Direct Business OCIO, Mail Stop 7602, Washington, DC Departmental Information Collection Clearance Officer. Programs Loans and Grants’’. 20250–7602. Comments regarding these OMB Control Number: 0575–0066. information collections are best assured [FR Doc. 2011–17768 Filed 7–13–11; 8:45 am] Summary of Collection: Rural of having their full effect if received BILLING CODE 3410–15–P Development (Agency) is the credit within 30 days of this notification. agency for agriculture and rural Copies of the submission(s) may be development for the U.S. Department of DEPARTMENT OF AGRICULTURE obtained by calling (202) 720–8681. Agriculture. The Community Facilities An agency may not conduct or Submission for OMB Review; program is authorized to make loans sponsor a collection of information Comment Request and grants for the development of unless the collection of information essential community facilities primarily displays a currently valid OMB control July 11, 2011. serving rural residents. The Direct number and the agency informs The Department of Agriculture has Business and Industry Program is potential persons who are to respond to submitted the following information authorized to make loans to improve, the collection of information that such collection requirement(s) to OMB for develop, or finance business, industry, persons are not required to respond to review and clearance under the and employment, and improve the the collection of information unless it Paperwork Reduction Act of 1995, economic and environmental climate in

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rural communities. Section 331 and 335 techniques or other forms of information Total Burden Hours: 1,190. of the Consolidated Farm and Rural technology should be addressed to: Desk Ruth Brown, Development Act, as amended, Officer for Agriculture, Office of authorizes the Secretary of Agriculture, Departmental Information Collection Information and Regulatory Affairs, Clearance Officer. acting through the Agency, to establish Office of Management and Budget [FR Doc. 2011–17774 Filed 7–13–11; 8:45 am] provisions for security servicing policies (OMB), [email protected] BILLING CODE 3410–05–P for the loans and grants in questions. If or fax (202) 395–5806 and to there is a problem which exists, a Departmental Clearance Office, USDA, recipient of the loan, grant, or loan OCIO, Mail Stop 7602, Washington, DC DEPARTMENT OF AGRICULTURE guarantee must furnish financial 20250–7602. Comments regarding these information which is used to aid in information collections are best assured Submission for OMB Review; resolving the problem through of having their full effect if received Comment Request reamortization, sale, transfer, debt restructuring, liquidation, or other within 30 days of this notification. July 8, 2011. means provided in the regulations. Copies of the submission(s) may be The Department of Agriculture has Need and Use of the Information: The obtained by calling (202) 720–8958. submitted the following information Agency will use several different forms An agency may not conduct or collection requirement(s) to OMB for to collect information from applicants, sponsor a collection of information review and clearance under the borrowers, consultants, lenders and unless the collection of information Paperwork Reduction Act of 1995, attorneys. This information is used to displays a currently valid OMB control Public Law 104–13. Comments determine applicant/borrower eligibility number and the agency informs regarding (a) Whether the collection of and project feasibility for various potential persons who are to respond to information is necessary for the proper servicing actions. The information the collection of information that such performance of the functions of the enables field staff to ensure that persons are not required to respond to agency, including whether the borrowers operate on a sound basis and the collection of information unless it information will have practical utility; use loan and grant funds for authorized displays a currently valid OMB control (b) the accuracy of the agency’s estimate purposes. number. of burden including the validity of the Description of Respondents: State, methodology and assumptions used; (c) Local or Tribal Government; Not-for- Farm Service Agency ways to enhance the quality, utility and profit institutions. clarity of the information to be Number of Respondents: 105. Title: Certified State Mediation collected; (d) ways to minimize the Frequency of Responses: Reporting: Program. burden of the collection of information On occasion. OMB Control Number: 0560–0165. on those who are to respond, including Total Burden Hours: 979. through the use of appropriate Summary of Collection: The Farm automated, electronic, mechanical, or Charlene Parker, Service Agency (FSA) amended its other technological collection Departmental Information Collection agricultural loan mediation regulations techniques or other forms of information Clearance Officer. to implement the requirements of the [FR Doc. 2011–17770 Filed 7–13–11; 8:45 am] technology should be addressed to: Desk Federal Crop Insurance Reform and Officer for Agriculture, Office of BILLING CODE 3410–XT–P Department of Agriculture Information and Regulatory Affairs, Reorganization Act of 1994 (the 1994 Office of Management and Budget Act) and the United States Grain _ DEPARTMENT OF AGRICULTURE (OMB), OIRA [email protected] Standards Act of 2000 (the Grain or fax (202) 395–5806 and to Submission for OMB Review; Standards Act). The regulation Departmental Clearance Office, USDA, Comment Request continues to provide a mechanism to OCIO, Mail Stop 7602, Washington, DC States to apply for and obtain matching 20250–7602. Comments regarding these July 8, 2011. funds grants from USDA to supplement information collections are best assured The Department of Agriculture has the expenses involved with the of having their full effect if received submitted the following information administration of an agricultural within 30 days of this notification. collection requirement(s) to OMB for mediation program. FSA will collect Copies of the submission(s) may be review and clearance under the information by mail, phone, fax, and in obtained by calling (202) 720–8958. Paperwork Reduction Act of 1995, person. An agency may not conduct or Public Law 104–13. Comments sponsor a collection of information Need and Use of the Information: FSA regarding: (a) Whether the collection of unless the collection of information will collect information to determine information is necessary for the proper displays a currently valid OMB control performance of the functions of the whether the State meets the eligibility number and the agency informs agency, including whether the criteria to be recipients of grant funds, potential persons who are to respond to information will have practical utility; and secondly, to determine if the grant the collection of information that such (b) the accuracy of the agency’s estimate is being administered as provided by the persons are not required to respond to of burden including the validity of the Act. Lack of adequate information to the collection of information unless it methodology and assumptions used; (c) make these determinations could result displays a currently valid OMB control ways to enhance the quality, utility and in the improper administration and number. clarity of the information to be appropriation of Federal grant funds. Food and Nutrition Service collected; (d) ways to minimize the Description of Respondents: State, burden of the collection of information Local or Tribal Government. Title: Study to Assess the Effect of on those who are to respond, including Supplemental Nutrition Assistance through the use of appropriate Number of Respondents: 35. Program Participation on Food Security automated, electronic, mechanical, or Frequency of Responses: Reporting: in the Post-American Recovery and other technological collection Annually. Reinvestment Act Environment.

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OMB Control Number: 0584–New. by key household characteristics and unrestricted by the quantitative limit Summary of Collection: Section 17 circumstances. (3) To determine what established by the sugar tariff-rate quota, (7 U.S.C. 2026) (a) (1) of the Food and factors distinguish between food secure for re-export in refined form or in a Nutrition Act of 2008 provides general and food insecure SNAP households sugar containing product or for the legislative authority for the planned with children. production of certain polyhydric data collection. This section authorizes Description of Respondents: alcohols. These programs are in use by the Secretary of Agriculture to enter into Individuals or household. as many as 250 licensees currently contracts with private institutions to Number of Respondents: 15,408. eligible to participate. Under 7 CFR part undertake research that will help to Frequency of Responses: Reporting: 1530, licensees are required to submit improve the administration and On occasion. the following: (1) ‘‘Application for a effectiveness of SNAP in delivering Total Burden Hours: 8,266. license’’ information required for nutrition related benefits. More specific participation as set forth in section Ruth Brown, legislative authority is found in the 1530.104; (2) ‘‘Regular reporting’’ of ARRA economic stimulus package Departmental Information Collection import, export, transfer, or use for Clearance Officer. implemented in April 2009 (Pub. L. No. charges and credits to licenses under 111–5, Section 101(c) (1)), which [FR Doc. 2011–17773 Filed 7–13–11; 8:45 am] section 1530.109; and (3) provides administrative funds to the BILLING CODE 3410–30–P ‘‘Miscellaneous submission’’ of bonds or Food and Nutrition Service (FNS) for letters of credit under section 1530.107, management and oversight and for appeals to determinations by the DEPARTMENT OF AGRICULTURE managing the integrity and evaluation of licensing authority under section the stimulus changes. The Foreign Agricultural Service 1530.112, or requests to the licensing implementation of ARRA presents a authority for waivers under section unique opportunity to measure the Notice of Request for Extension of a 1530.113. impact of increased benefits on food Currently Approved Information In addition, each participant must insecurity. Over the past few years, Collection maintain records on all program reports SNAP participation has increased over as set forth in section 1530.110. The 26 percent and is now at record high AGENCY: Foreign Agricultural Service, information collected is used by the levels with over 20.7 million USDA. licensing authority to manage, plan, households across the nation enrolled in ACTION: Notice and request for evaluate, and account for program the program in January 2011. The comments. activities. The reports and records are prevalence of food insecurity is also at required to ensure the proper operations a record high level, at 14.6 percent in SUMMARY: In accordance with the of these programs. 2009, as noted in the latest annual Paperwork Reduction Act of 1995, this Estimate of Burden: (1) ‘‘Application report on household food insecurity. A notice announces that the Foreign for a license’’ would require 20 hours unique opportunity to measure the Agricultural Service (FAS) intends to per response; (2) ‘‘Regular reporting’’ impact of increased benefits on food request an extension for a currently would require between 10 and 15 insecurity has been presented by the approved information collection minutes per transaction with the implementation of the ARRA economic procedure for Sugar Import Licensing number of transactions varying per stimulus package of 2009, which Programs described in 7 CFR part 1530. respondent; and (3) ‘‘miscellaneous temporarily increased the maximum DATES: Comments should be received on submission’’ would require between 1 to allotments provided to SNAP or before September 12, 2011 to be 2 hours per bond or letter of credit, 2 to participants by 13.6 percent, eased assured of consideration. 10 hours per waiver request, and 10 to eligibility requirements for childless ADDRESSES: Mail or deliver comments to 100 hours per appeal. adults without jobs, and provided William Janis, International Economist, Respondents: Sugar refiners, additional funding to state agencies Import Policies and Programs Division, manufacturers of sugar containing responsible for administering the Foreign Agricultural Service, U.S. products, and producers of polyhydric program. Department of Agriculture, Stop 1021, alcohol. Need and Use of the Information: 1400 Independence Ave., SW., Estimated Number of Respondents: This evaluation of the effect of SNAP Washington, DC 20250–1021. 250. participants on food security will Estimated Number of Responses per FOR FURTHER INFORMATION CONTACT: provide new information on the extent Respondent: New/Renew License: 1; William Janis at the address stated to which food insecurity declines with Regular reporting: 75 transactions, total; above or telephone at (202) 720–2194, or SNAP participation in a post-ARRA Miscellaneous: Bonds/letters of credit: by e-mail at: environment. This will produce 1; Waiver requests: 1; Appeals: 1. important new evidence on the [email protected]. Estimated Total Burden Hours on program’s impact, will inform policy SUPPLEMENTARY INFORMATION: Respondents: 1,739 hours. decisions regarding the size of SNAP Title: Sugar Imported for Export as Copies of this information collection allotments for eligible households, and Refined Sugar or as a Sugar-Containing can be obtained from Tamoria inform related operational decisions Product, or used in the Production of Thompson-Hall, the Agency Information regarding the likely impact of allotment Certain Polyhydric Alcohols. Collection Coordinator, at (202) 690– changes on the propensity to OMB Number: 0551–0015. 1690. participate. The purpose of this data is Expiration Date of Approval: Request of Comments: The public is to allow analysis that will support the December 31, 2011. invited to submit comments and following study objectives: (1) To Type of Request: Extension of a suggestions to the above address determine how, if at all, the prevalence currently approved information regarding the accuracy of the burden of household food insecurity and collection. estimate, ways to minimize the burden, amount of food expenditures vary with Abstract: The primary objective of the including the use of automated SNAP participation. (2) To determine Sugar Import Licensing Program is to collection techniques or other forms of how, if at all, the observed results vary permit entry of raw cane sugar, information technology, or any other

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aspect of this collection of information. Type of Request: Extension of a in the request for OMB approval. All Comments on issues covered by the currently approved information comments will also be a matter of public Paperwork Reduction Act are most collection. record. Persons with disabilities who useful to OMB if received within 30 Abstract: The quota system require an alternative means for days of publication of the Notice and established by Presidential communication of information (Braille, Request for Comments, but should be Proclamation 4941 of May 5, 1982, large print, audiotape, etc.) should submitted no later than 60 days from the prevented the importation of certain contact USDA’s Target Center at (202) date of this publication to be assured of sugars used for specialized purposes 720–2600 (voice and TDD). which originated in countries which did consideration. All responses to this Dated: June 24, 2011. not have quota allocations. Therefore, notice will be summarized and included Suzanne E. Heinen, in the request for OMB approval. All the regulation at 15 CFR part 2011 Administrator, Foreign Agricultural Service. comments will also be a matter of public (Allocation of Tariff-Rate Quota on record. Persons with disabilities who Imported Sugars, Syrups and Molasses, [FR Doc. 2011–17771 Filed 7–13–11; 8:45 am] require an alternative means to subpart B—Specialty Sugar) established BILLING CODE 3410–10–P communicate information (Braille, large terms and conditions under which print, audiotape, etc.) should contact certificates are issued permitting U.S. DEPARTMENT OF AGRICULTURE USDA’s Target Center at (202) 720–2600 importers holding certificates to enter specialty sugars from specialty sugar (voice and TDD). Forest Service source countries under the sugar tariff- Dated: June 24, 2011. rate quotas (TRQ). Nothing in this Suzanne E. Heinen, White Pine-Nye Resource Advisory subpart affects the ability to enter Committee Administrator, Foreign Agricultural Service. specialty sugars at the over-TRQ duty [FR Doc. 2011–17780 Filed 7–13–11; 8:45 am] rates. Applicants for certificates for the AGENCY: Forest Service, USDA. BILLING CODE 3410–10–P import of specialty sugars must supply ACTION: Notice of meeting. the information required by 15 CFR 2011.205 to be eligible to receive a SUMMARY: The White Pine-Nye Resource DEPARTMENT OF AGRICULTURE specialty sugar certificate. The specific Advisory Committee will meet in information required on an application Foreign Agricultural Service Eureka, Nevada. The committee is must be collected from those who wish authorized under the Secure Rural Notice of Request for Extension of a to participate in the program in order to Schools and Community Self- Currently Approved Information grant specialty sugar certificates, ensure Determination Act (Pub. L 110–343) (the Collection that imported specialty sugar does not Act) and operates in compliance with disrupt the current domestic sugar the Federal Advisory Committee Act. AGENCY: Foreign Agricultural Service, program, and administer the issuance of The purpose of the committee is to USDA. the certificates effectively. improve collaborative relationships and ACTION: Notice and request for Estimate of Burden: Public reporting to provide advice and recommendations comments. burden for this collection of information to the Forest Service concerning projects is estimated to average 2 hours per and funding consistent with the title II SUMMARY: In accordance with the response. of the Act. The meeting is open to the Paperwork Reduction Act of 1995, this Respondents: Importers. public. The purpose of the meeting is to notice announces that the Foreign Estimated Number of Respondents: decide on monitoring the Agricultural Service (FAS) intends to 37. implementation of projects, decide on request an extension for a currently Estimated Number of Responses per consideration of additional projects and approved information collection Respondent: 1. review and recommend funding procedure for entry of specialty sugars Estimated Total Annual Burden on allocation for any additional projects. into the United States as described in 7 Respondents: 74 hours. CFR part 2011. Copies of this information collection DATES: The meeting will be held August DATES: Comments should be received on can be obtained from Tamoria 8, 2011, 9 a.m. or before September 12, 2011 to be Thompson-Hall, the Agency Information ADDRESSES: The meeting will be held at assured of consideration. Collection Coordinator, at (202) 690– Eureka County Annex, 701 S. Main 1690. ADDRESSES: Mail or deliver comments to Street, Eureka, Nevada 89316. Written Request for Comments: The public is comments may be submitted as William Janis, International Economist, invited to submit comments and Import Policies and Programs Division, described under SUPPLEMENTARY suggestions to the above address INFORMATION. Foreign Agricultural Service, U.S. regarding the accuracy of the burden All comments, including names and Department of Agriculture, Stop 1021, estimate, ways to minimize the burden, addresses when provided, are placed in 1400 Independence Ave. SW., including the use of automated the record and are available for public Washington, DC 20250–1021. collection techniques or other forms of inspection and copying. The public may FOR FURTHER INFORMATION CONTACT: information technology, or any other inspect comments received at Tonopah William Janis at the address stated aspect of this collection of information. Ranger District Office, 1400 S. Erie Main above, or telephone at (202) 720–2194; Comments on issues covered by the Street, Tonopah, Nevada. Please call or by e-mail at Paperwork Reduction Act are most ahead to 775–482–6286 to facilitate [email protected]. useful to OMB if received within 30 entry into the building to view days of publication of the Notice and SUPPLEMENTARY INFORMATION: comments. Title: Specialty Sugar Certificate Request for Comments, but should be Application. submitted no later than 60 days from the FOR FURTHER INFORMATION CONTACT: OMB Number: 0551–0025. date of this publication to be assured of Steven Williams, RAC Designated Expiration Date of Approval: consideration. All responses to this Federal Official, Austin Ranger District, December 31, 2011. notice will be summarized and included 100 Midas Canyon Road, P.O. Box 130,

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Austin, Nevada 89310, 775–964–2671, Burden Hours: 700. Paperwork Reduction Act clearance for e-mail [email protected]. Needs and Uses: The purpose of this a follow-up in the Mid-Atlantic in Individuals who use survey is to provide for the ongoing summer 2011 under NOAA funding telecommunication devices for the deaf collection of social and economic data (Social Impacts of the Implementation (TDD) may call the Federal Information related to fisheries and their of Catch Shares Programs in the Mid- Relay Service (FIRS) at 1–800–877–8339 communities in the Northeast and Mid- Atlantic, OMB Control No. 0648–xxxx). between 8 a.m. and 8 p.m., Eastern Atlantic states. These data are needed to The current request has learned from Standard Time, Monday through Friday. support fishery performance measures some elements of the URI and follow-on Requests for reasonable accommodation recently developed by NOAA’s survey. However, this request (1) Is for access to the facility or procedings Northeast Science Center’s Social focused on fisheries management in may be made by contacting the person Science Branch (SSB) in Woods Hole, general while the earlier study is listed FOR FURTHER INFORMATION. MA. The measures are: financial focused solely on catch shares, (2) is an SUPPLEMENTARY INFORMATION: The viability, distributional outcomes, ongoing survey rather than a one-time following business will be conducted: stewardship, governance and well- effort, and (3) specifically targets Review and approve previous meeting’s being. Data to support some indicators performance indicators for which data minutes and business expenses, for these measures are already routinely are not currently being collected. Recommend funding allocation for collected by National Marine Fisheries Affected Public: Business or other for- proposed projects, and Public Comment. Service (NMFS). This survey will fill in profit organizations, individuals or More information is available at: the gaps, and allow the SBB to collect households. https://fsplaces.fs.fed.us/fsfiles/unit/wo/ trend data needed for more thorough Frequency: Annually. secure_rural_schools.nsf. Anyone who analysis of changes in the fisheries, Respondent’s Obligation: Voluntary. would like to bring related matters to including impacts from changes in OMB Desk Officer: the attention of the committee may file regulations. The National [email protected]. written statements with the committee Environmental Policy Act (NEPA) and Copies of the above information staff before or after the meeting. The the Magnuson-Stevens Fishery collection proposal can be obtained by agenda will include time for people to Conservation and Management Act calling or writing Diana Hynek, make oral statements of three minutes or (MSA), as amended, both contain Departmental Paperwork Clearance less. Individuals wishing to make an requirements for considering the social Officer, (202) 482–0266, Department of oral statement should request in writing and economic impacts of fishery Commerce, Room 6616, 14th and by August 2, 2011 to be scheduled on management decisions. Currently, Constitution Avenue, NW., Washington, the agenda. however, no data exist that allow for DC 20230 (or via the Internet at Written comments and requests for tracking the social impacts of fishery [email protected]). time for oral comments must be sent to management policy and decisions over Written comments and Tonopah Ranger District, P.O. Box 3940, time in the Northeast and Mid-Atlantic recommendations for the proposed Tonopah, Nevada 89049, or by e-mail to states, and insufficient economic trend information collection should be sent [email protected] or via facsimile to data are available. In implementing within 30 days of publication of this 775–482–3053. policies and management programs, and notice to in meeting the social and economic Dated: July 5, 2011. [email protected]. impact assessment requirements of Jeanne M. Higgins, NEPA and MSA, there is a need to Dated: July 11, 2011. Forest Supervisor. understand how such policies and Gwellnar Banks, [FR Doc. 2011–17705 Filed 7–13–11; 8:45 am] programs will affect the social and Management Analyst, Office of the Chief BILLING CODE 3410–11–P economic characteristics of those Information Officer. involved in the commercial fishing [FR Doc. 2011–17700 Filed 7–13–11; 8:45 am] industry. Under this survey, the SSB BILLING CODE 3510–22–P DEPARTMENT OF COMMERCE intends to collect socio-economic data from vessel owners, permit holders, Submission for OMB Review; hired captains, and crew involved in DEPARTMENT OF COMMERCE Comment Request commercial fishing in New England and International Trade Administration The Department of Commerce will the Mid-Atlantic states. Data to be submit to the Office of Management and collected include information on crew, [A–570–894] Budget (OMB) for clearance the wage calculation systems, individual following proposal for collection of and community well-being, fishing Certain Tissue Paper Products From information under the provisions of the practices, job satisfaction, job the People’s Republic of China; Notice Paperwork Reduction Act (44 U.S.C. opportunities, and attitudes toward of Rescission of the 2010–2011 Chapter 35). fisheries management. SSB intends to Antidumping Duty Administrative Agency: National Oceanic and collect these data on an ongoing (e.g., Review annually or biennially) basis in order to Atmospheric Administration (NOAA). AGENCY: Department of Commerce, Title: Socio-Economic Surveys of track how socio-economic characteristics of fisheries are changing International Trade Administration, Vessel (SESV) Owners and Crew in New Import Administration. England and Mid-Atlantic Fisheries. over time and to track the impact of OMB Control Number: None. fishery policies and management SUMMARY: The Department of Commerce Form Number(s): NA. programs implemented in New England (the Department) is rescinding the Type of Request: Regular submission and the Mid-Atlantic. administrative review of the (request for a new information NMFS is aware of a survey begun by antidumping duty order on certain collection). the University of Rhode Island (URI) in tissue paper products from the People’s Number of Respondents: 1,400. 2009/2010 in New England under a Republic of China (PRC) for the period Average Hours per Response: 30 grant from the Commercial Fisheries of review (POR) of March 1, 2010, to minutes. Research Foundation, that seeks February 28, 2011, with respect to Max

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Fortune Industrial Limited (Max the request within 90 days of the date Dated: July 6, 2011. Fortune Industrial), Max Fortune (FZ) of publication of the notice of initiation Christian Marsh, Paper Products Co., Ltd. (formerly of the requested review. Accordingly, Deputy Assistant Secretary for Antidumping known as Max Fortune (FETDE) Paper the petitioner timely withdrew its and Countervailing Duty Operations . Products Co., Ltd.) (Max Fortune request for review of Max Fortune [FR Doc. 2011–17724 Filed 7–13–11; 8:45 am] Fuzhou), Max Fortune (Vietnam) Paper Industrial, Max Fortune Fuzhou, Max BILLING CODE 3510–DS–P Products Company Limited (Max Fortune Vietnam, and Tian Jun. Because Fortune Vietnam), and Fujian Tian Jun no other party requested a review, Trading Co., Ltd. (also known as Fuzhou pursuant to 19 CFR 351.213(d)(1), the DEPARTMENT OF COMMERCE Tianjun Foreign Trade Co., Ltd.) (Tian Department is rescinding the entire Jun). This rescission is based on the administrative review of the National Oceanic and Atmospheric timely withdrawal of the requests for antidumping duty order on certain Administration review by the only interested party that tissue paper products from the PRC for [RIN 0648–XL85] requested the review of these the period March 1, 2010, to February companies. 28, 2011. Supplemental Environmental Impact Statement for Replacement of NOAA DATES: Effective Date: July 14, 2011. Assessment National Marine Fisheries Service FOR FURTHER INFORMATION CONTACT: The Department will instruct U.S. Southwest Fisheries Science Center in Brian Smith or Gemal Brangman, AD/ Customs and Border Protection (CBP) to La Jolla, CA CVD Operations, Office 2, Import assess antidumping duties on all Administration, International Trade AGENCY: appropriate entries. Antidumping duties National Marine Fisheries Administration, U.S. Department of shall be assessed at rates equal to the Service (NMFS), National Oceanic and Commerce, 14th Street and Constitution cash deposit of estimated antidumping Atmospheric Administration (NOAA), Avenue, NW., Washington, DC 20230; duties required at the time of entry, or Commerce. telephone (202) 482–1766 or (202) 482– withdrawal from warehouse, for ACTION: Notice of intent to prepare a 3773, respectively. consumption, in accordance with 19 Supplemental Environmental Impact SUPPLEMENTARY INFORMATION: CFR 351.212(c)(1)(i). The Department Statement (SEIS); request for comments. Background intends to issue appropriate assessment SUMMARY: NOAA announces its instructions directly to CBP 15 days On March 1, 2011, the Department intention to prepare an SEIS in after the date of publication of this accordance with the National published a notice of opportunity to notice in the Federal Register. request an administrative review of the Environmental Policy Act of 1969, the antidumping duty order on certain Notification to Importers Council on Environmental Quality tissue paper products from the PRC. See Regulations, and NOAA Administrative This notice serves as a reminder to Antidumping or Countervailing Duty Order 216–6 Environmental Review importers of their responsibility under Order, Finding, or Suspended Procedures for Implementing the 19 CFR 351.402(f)(2) to file a certificate Investigation; Opportunity to Request National Environmental Policy Act. This regarding the reimbursement of Administrative Review, 76 FR 11197 SEIS is being prepared to reflect antidumping duties prior to liquidation (March 1, 2011). In response, on March substantial changes in the proposed of the relevant entries during this 31, 2011, the petitioner 1 timely action that are relevant to review period. Failure to comply with requested an administrative review of environmental concerns. The proposed this requirement could result in the entries of the subject merchandise changes to be analyzed in the SEIS are Secretary’s presumption that during the POR from Max Fortune related to the replacement of the reimbursement of antidumping duties Industrial, Max Fortune Fuzhou, Max facilities and were not previously occurred and the subsequent assessment Fortune Vietnam, and Tian Jun. analyzed in the Final EIS/ of double antidumping duties. Therefore, on April 19, 2011, the Environmental Impact Report (EIR) Department initiated a review of Max Notification Regarding Administrative dated April 2009. The University of Fortune Industrial, Max Fortune Protective Orders California San Diego may also prepare Fuzhou, Max Fortune Vietnam, and an Addendum to the Final EIS/EIR in This notice also serves as a reminder Tian Jun. See Initiation of Antidumping accordance with the California to parties subject to administrative and Countervailing Duty Administrative Environmental Quality Act (CEQA). protective orders (APO) of their Reviews, 76 FR 23545 (April 27, 2011). DATES: Written comments and input responsibility concerning the return or In a letter dated June 10, 2011, the will be accepted on or before August 15, destruction of proprietary information petitioner withdrew its request for 2011. disclosed under APO in accordance review of Max Fortune Industrial, Max with 19 CFR 351.305(a)(3), which ADDRESSES: Written comments should Fortune Fuzhou, Max Fortune Vietnam, continues to govern business be sent to Robb Gries, Project Engineer, and Tian Jun, and requested that the proprietary information in this segment NOAA, Project Planning & Department rescind the review with of the proceeding. Timely written Management—Western Region, 7600 respect to these companies. No other notification of the return or destruction Sand Point Way, NE., BIN C15700, parties requested a review. of APO materials or conversion to Seattle, WA 98115; e-mail Rescission of Administrative Review judicial protective order is hereby [email protected]. Pursuant to 19 CFR 351.213(d)(1), the requested. Failure to comply with the FOR FURTHER INFORMATION CONTACT: Mr. Secretary will rescind an administrative regulations and the terms of an APO is Robb Gries, NOAA Project Engineer, at review, in whole or in part, if the party a sanctionable violation. the address provided above. who requested the review withdraws This notice is published in SUPPLEMENTARY INFORMATION: Since accordance with sections 751(a) and completion of the Final EIS/EIR, 1 The petitioner is Seaman Paper Company of 777(i) of the Act, and 19 CFR substantial changes are being made to Massachusetts, Inc. 351.213(d)(4). the scope of actions originally proposed

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by NOAA on property currently Dated: July 8, 2011. For the U.S. Virgin Islands occupied and managed by NOAA. The William F. Broglie, August 3, 2011, The Buccaneer Hotel, proposed changes involve demolition of Chief Administrative Officer, National Estate Shoys, Christiansted, St. the majority of the NOAA Southwest Oceanic and Atmospheric Administration. Croix, U.S. Virgin Islands. West Fisheries Science Center Building [FR Doc. 2011–17764 Filed 7–13–11; 8:45 am] August 4, 2011, Holiday Inn A and establishment of a geohazard BILLING CODE 3510–12–P (Windward Passage Hotel) Charlotte stabilization system consisting of tie- Amalie, St. Thomas, U.S. Virgin backs to secure foundations for the Islands. remaining structure (Building D) and DEPARTMENT OF COMMERCE All meetings will be held from 7 to 10 p.m. access areas. The tie-back system National Oceanic and Atmospheric FOR FURTHER INFORMATION CONTACT: requires more substantial excavation to Administration be installed within a geologically Caribbean Fishery Management Council, sensitive coastal bluff. [RIN 0648–XA565] 268 Mun˜ oz Rivera Avenue, Suite 1108, San Juan, Puerto Rico 00918–1920, Consistent with 40 CFR Caribbean Fishery Management telephone (787) 766–5926. 1502.9(c)(1)(i), this SEIS will focus on Council; Scoping Meetings SUPPLEMENTARY INFORMATION: the environmental effects of the The Caribbean Fishery Management Council proposed changes and feasible AGENCY: National Marine Fisheries will hold public hearings to receive alternatives including the no-action Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), public input on the following alternative, and analyze the potential management options. The complete effects to affected resources such as: Commerce. ACTION: Notice of public hearings. document is available at: http:// Geological conditions, hydraulic www.caribbeanfmc.com or you may processes, construction noise, traffic/ SUMMARY: The Caribbean Fishery contact Ms. Livia Montalvo at pedestrian circulation, air emissions, Management Council will hold public [email protected], or the and protected wildlife. While scoping hearings to obtain input from fishers, Council office at (787) 766–5926 to meetings are not being held for the SEIS, the general public, and the local obtain copies. NOAA is requesting written comments agencies representatives on the Draft 4.0 Actions and Alternatives and input, including, but not limited to, Comprehensive Amendment to the technical information related to the FMPs establishing annual catch limits 4.1 Action 1: Management Reference proposed actions, information regarding (ACL) and accountability measures Points for Species not Undergoing potentially affected resources in the (AMs) for species not overfished or Overfishing within the Reef Fish FMP area, and community interests or undergoing overfishing. 4.1.1 Action 1(a). Establish a year concerns on the potential for DATES AND ADDRESSES: The scoping sequence for determining average environmental effects of the proposed meetings will be held on the following annual landings for each species or action and alternatives. NOAA will also dates and locations: species group within the Reef Fish rely on prior scoping documents and For Puerto Rico Fishery Management Plan (FMP). comments received during preparation August 2, 2011, DoubleTree by Hilton Alternative 1. No action. Retain the of the original FEIS/EIR. Additional San Juan, De Diego Avenue, San year sequence as defined in the 2005 public involvement opportunities Juan, Puerto Rico. Comprehensive Sustainable Fisheries associated with this SEIS will occur, August 3, 2011, Holiday Inn Ponce & Act Amendment (Caribbean SFA including a public comment period on Tropical Casino, 3315 Ponce By Amendment). the Supplemental Draft EIS to be Pass, Ponce, Puerto Rico. Alternative 2. Redefine management announced as a Notice of Availability in August 4, 2011, Mayagu¨ ez Holiday reference points or proxies for the Reef the Federal Register. Inn, 2701 Hostos Avenue, Fish FMP based on the longest year Mayagu¨ ez, Puerto Rico. sequence of reliable landings data.

TABLE 4.1.1—YEAR SEQUENCES BY ISLAND GROUP UNDER ALTERNATIVE 2

Reference point Year sequence

Puerto Rico Commercial ...... 1988–2009 Puerto Rico Recreational ...... 2000–2009 St. Croix ...... 1999–2008 St. Thomas/St. John ...... 2000–2008

Alternative 3. Redefine management sequence of pre-Caribbean SFA considered consistently reliable across reference points or proxies for the Reef Amendment landings data that is all islands. Fish FMP based on the longest year

TABLE 4.1.2—YEAR SEQUENCES BY ISLAND GROUP UNDER ALTERNATIVE 3

Reference point Year sequence

Puerto Rico Commercial ...... 1999–2005 Puerto Rico Recreational ...... 2000–2005 St. Croix ...... 1999–2005 St. Thomas/St. John ...... 2000–2005

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Alternative 4. Redefine management sequence of recent reliable landings reference points or proxies for the Reef data. Fish FMP based on the longest year

TABLE 4.1.3—YEAR SEQUENCES BY ISLAND GROUP UNDER ALTERNATIVE 4

Reference point Year sequence

Puerto Rico Commercial ...... 1999–2009 Puerto Rico Recreational ...... 2000–2009 St. Croix ...... 1999–2008 St. Thomas/St. John ...... 2000–2008

Alternative 5. Redefine management Fish FMP based on the most recent five reference points or proxies for the Reef years of available landings data.

TABLE 4.1.4—YEAR SEQUENCES BY ISLAND GROUP UNDER ALTERNATIVE 5

Reference point Year sequence

Puerto Rico Commercial ...... 2005–2009 Puerto Rico Recreational ...... 2005–2009 St. Croix ...... 2004–2008 St. Thomas/St. John ...... 2004–2008

4.1.2 Action 1(b). Establish of landings data as defined in Action Sub-Action 3. Establish management management reference points for the 1(a) Alternatives 1–5. reference points for the reef fish species reef fish species not undergoing Sub-Action 2. Establish management not undergoing overfishing in St. overfishing. reference points for the reef fish species Thomas/St. John. Sub-Action 1. Establish management not undergoing overfishing in St Croix. reference points for the reef fish species Alternative 1: No action. Retain not undergoing overfishing in Puerto Alternative 1: No action. Retain current management reference points or Rico. current management reference points or proxies for species/species groups. Alternative 1: No action. Retain proxies for species/species groups. Alternative 2(a) through 2(o): current management reference points or Alternative 2(a) through 2(o): Redefine management reference points proxies for species/species groups. Redefine management reference points or proxies based on the year sequence Alternative 2(a) through 2(o): or proxies based on the year sequence of landings data as defined in Action Redefine management reference points of landings data as defined in Action 1(a) Alternatives 1–5. or proxies based on the year sequence 1(a) Alternatives 1–5.

TABLE 4.1.4—CURRENT MSY PROXY, OY AND OVERFISHING THRESHOLD DEFINITIONS FOR SPECIES/SPECIES GROUPS

Reference point Alternative 1—Status quo definition

Maximum Sustainable Yield ...... MSY proxy = C/[(FCURR/FMSY) × (BCURR/BMSY)]; where C is calculated based on commercial landings for the years 1997–2001 for Puerto Rico and 1994–2002 for the USVI, and on rec- reational landings for the years 2000–2001. Overfishing Threshold ...... MFMT = FMSY. Optimum Yield ...... OY = average yield associated with fishing on a continuing basis at FOY; where FOY = 0.75FMSY.

TABLE 4.1.5—MANAGEMENT REFERENCE POINTS OR PROXIES PROPOSED FOR THE REEF FISH SPECIES NOT UNDERGOING OVERFISHING UNDER ALTERNATIVE 2

Reference point

Maximum Sustainable Yield: Alternative 2(a) ...... MSY proxy = Median annual landings selected by Council in Action 2(a). Alternative 2(b) ...... MSY proxy = Mean annual landings selected by Council in Action 2(a). Alternative 2(c) ...... MSY proxy = Maximum of a single year of recreational landings × 3. Overfishing Threshold: Alternative 2(d) ...... OFL = MSY proxy adjusted according to the ORCS scalar; overfishing occurs when annual landings exceed the OFL. Alternative 2(e) ...... OFL = MSY proxy adjusted according to the ORCS scalar; overfishing occurs when annual landings exceed the OFL, unless NOAA Fisheries’ Southeast Fisheries Science Center (in consultation with the Caribbean Fishery Management Council and its SSC) determines the overage occurred because data collection/monitoring improved, rather than because land- ings actually increased. Alternative 2(f) ...... OFL = MSY proxy; overfishing occurs when annual landings exceed the OFL.

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TABLE 4.1.5—MANAGEMENT REFERENCE POINTS OR PROXIES PROPOSED FOR THE REEF FISH SPECIES NOT UNDERGOING OVERFISHING UNDER ALTERNATIVE 2—Continued

Reference point

Alternative 2(g) ...... OFL = MSY proxy; overfishing occurs when annual landings exceed the OFL, unless NOAA Fisheries’ Southeast Fisheries Science Center (in consultation with the Caribbean Fishery Management Council and its SSC) determines the overage occurred because data collec- tion/monitoring improved, rather than because landings actually increased. Acceptable Biological Catch/ABC Control Rule: Alternative 2(h) ...... ABC= OFL. Alternative 2(i) ...... ABC= [OFL × 0.85]. Alternative 2(j) ...... ABC= [OFL × 0.75]. Alternative 2(k) ...... ABC= [OFL × 0.50]. Optimum Yield/Annual Catch Limit: Alternative 2(l) ...... OY = ACL = ABC. Alternative 2(m) ...... OY = ACL = [ABC × (0.85)]. Alternative 2(n) ...... OY = ACL = [ABC × (0.75)]. Alternative 2(o) ...... OY = ACL = [ABC × (0.50)].

4.2 Action 2: Management Reference annual landings for the Caribbean Spiny Alternative 2. Redefine management Points for the Caribbean Spiny Lobster Lobster. reference points or proxies for the Alternative 1. No action. Retain the Caribbean Spiny Lobster FMP based on 4.2.1 Action 2(a). Establish a year year sequence for Caribbean Spiny the longest year sequence of reliable sequence for determining average Lobster FMP landings as defined in the landings data. Caribbean SFA Amendment.

TABLE 4.2.1—YEAR SEQUENCES BY ISLAND GROUP UNDER ALTERNATIVE 2

Reference point Year sequence

Puerto Rico ...... 1988–2009 St. Croix ...... 1999–2008 St. Thomas/St. John ...... 2000–2008

Alternative 3. Redefine management the longest year sequence of pre- data that is considered consistently reference points or proxies for the Caribbean SFA Amendment landings reliable across all islands. Caribbean Spiny Lobster FMP based on

TABLE 4.2.2—YEAR SEQUENCES BY ISLAND GROUP UNDER ALTERNATIVE 3

Reference point Year sequence

Puerto Rico ...... 1999–2005 St. Croix ...... 1999–2005 St. Thomas/St. John ...... 2000–2005

Alternative 4. Redefine management the longest year sequence of recent reference points or proxies for the reliable landings data. Caribbean Spiny Lobster FMP based on

TABLE 4.2.3—YEAR SEQUENCES BY ISLAND GROUP UNDER ALTERNATIVE 4

Reference point Year sequence

Puerto Rico ...... 1999–2009 St. Croix ...... 1999–2008 St. Thomas/St. John ...... 2000–2008

Alternative 5. Redefine management the most recent five years of available reference points or proxies for the landings data. Caribbean Spiny Lobster FMP based on

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TABLE 4.2.4—YEAR SEQUENCES BY ISLAND GROUP UNDER ALTERNATIVE 5

Reference point Year sequence

Puerto Rico ...... 2005–2009 St. Croix ...... 2004–2008 St. Thomas/St. John ...... 2004–2008

4.2.2 Action 2(b). Establish of landings data as defined in Action Sub-Action 3. Establish management management reference points for the 2(a) Alternatives 1–5. reference points for the Caribbean Spiny Caribbean Spiny Lobster. Sub-Action 2. Establish management Lobster in St. Thomas/St. John. reference points for the Caribbean Spiny Sub-Action 1. Establish management Alternative 1: No action. Retain Lobster in St. Croix. reference points for the Caribbean Spiny current management reference points or Lobster in Puerto Rico. Alternative 1: No action. Retain current management reference points or proxies for spiny lobster groups. Alternative 1: No action. Retain proxies for spiny lobster. Alternative 2(a) through 2(n): current management reference points or Alternative 2(a) through 2(n): Redefine management reference points proxies for spiny losbter. Redefine management reference points or proxies based on the year sequence Alternative 2(a) through 2(n): or proxies based on the year sequence of landings data as defined in Action Redefine management reference points of landings data as defined in Action 2(a) Alternatives 1–5. or proxies based on the year sequence 2(a) Alternatives 1–5.

TABLE 4.2.4—CURRENT MSY PROXY, OY AND OVERFISHING THRESHOLD DEFINITIONS FOR SPINY LOBSTER

Reference point Alternative 1—Status quo definition

Maximum Sustainable Yield ...... MSY proxy = C/[(FCURR/FMSY) × (BCURR/BMSY)]; where C is calculated based on commercial landings for the years 1997–2001 for Puerto Rico and 1994–2002 for the USVI, and on rec- reational landings for the years 2000–2001. Overfishing Threshold ...... MFMT = FMSY. Optimum Yield ...... OY = average yield associated with fishing on a continuing basis at FOY; where FOY = 0.75FMSY.

TABLE 4.2.5—MANAGEMENT REFERENCE POINTS OR PROXIES PROPOSED FOR SPINY LOBSTER UNDER ALTERNATIVE 2

Reference point

Maximum Sustainable Yield: Alternative 2(a) ...... MSY proxy = Median annual landings selected by Council in Action 2(a). Alternative 2(b) ...... MSY proxy = Mean annual landings selected by Council in Action 2(a). Overfishing Threshold: Alternative 2(c) ...... OFL = MSY proxy adjusted according the ORCS scalar; overfishing occurs when annual land- ings exceed the OFL. Alternative 2(d) ...... OFL = MSY proxy adjusted according the ORCS scalar; overfishing occurs when annual land- ings exceed the OFL, unless NOAA Fisheries’ Southeast Fisheries Science Center (in con- sultation with the Caribbean Fishery Management Council and its SSC) determines the overage occurred because data collection/monitoring improved, rather than because land- ings actually increased. Alternative 2(e) ...... OFL = MSY proxy; overfishing occurs when annual landings exceed the OFL. Alternative 2(f) ...... OFL = MSY proxy; overfishing occurs when annual landings exceed the OFL, unless NOAA Fisheries’ Southeast Fisheries Science Center (in consultation with the Caribbean Fishery Management Council and its SSC) determines the overage occurred because data collec- tion/monitoring improved, rather than because landings actually increased. Acceptable Biological Catch/ABC Control Rule: Alternative 2(g) ...... ABC= OFL. Alternative 2(h) ...... ABC= [OFL × 0.85]. Alternative 2(i) ...... ABC= [OFL × 0.75]. Alternative 2(j) ...... ABC= [OFL × 0.50]. Optimum Yield/Annual Catch Limit: Alternative 2(k) ...... OY = ACL = ABC. Alternative 2(l) ...... OY = ACL = [ABC × (0.85)]. Alternative 2(m) ...... OY = ACL = [ABC × (0.75)]. Alternative 2(n) ...... OY = ACL = [ABC × (0.50)].

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4.3 Action 3: Redefine Management of Table 4.3.1. List of all species Centropyge argi, Cherubfish. the Aquarium Trade Species Fishery included in the Aquarium Trade Diodon hystrix, Porcupinefish. Management Units (FMUs) Within the category in both the Reef Fish and Coral Dactylopterus volitans, Flying gurnard. Reef Fish FMP and the Coral and Reef FMPs. Table contents are extracted from Heteropriacanthus cruentatus, Glasseye Associated Plants and Invertebrates Table 8 of the Comprehensive snapper. FMP (Coral FMP) Amendment to the FMPs of the U.S. Hypoplectrus unicolor, Butter hamlet. 4.3.1 Action 3(a): Redefine the Caribbean to Address Required Holocanthus tricolor, Rock beauty. management of aquarium trade species Provisions of the Magnuson-Stevens Myrichthys ocellatus, Goldspotted eel. FMU. Fishery Conservation and Management Ophioblennius macclurei, Redlip Alternative 1: No action. Retain Act (Caribbean SFA Amendment). blenny. Pareques acuminatus, High-hat. aquarium trade species in both the Reef Fish FMP Corals and Reef Associated Plants and Rypticus saponaceus, Greater sopafish. Invertebrates FMP (Coral FMP) and the Clepticus parrae, Creole wrasse. Synodus intermedius, Sand diver. Reef Fish FMP as defined in the Halichoeres garnoti, Yellowhead Symphurus diomedianus, Caribbean Caribbean SFA Amendment. wrasse. tonguefish. Alternative 2: Consolidate all Halichoeres cyanocephalus, Family Syngnathidae, Pipefishes and aquarium trade species listed in the Yellowcheek wrasse. Seahorses. FMP for Coral FMP and the Reef Fish Halichoeres maculipinna, Clown Family Ogcocephalidae, Batfish. FMP into a single FMP. wrasse. Family Scorpaenidae, Scorpionfish. Alternative 2A: Move all aquarium Thalassoma bifasciatum, Bluehead Table 4.3.1. (continued). List of all trade species listed in the Coral FMP wrasse. species included in the Aquarium Trade into the Reef Fish FMP. Liopropoma rubre, Swissguard basslet. category in both the Reef Fish and Coral Alternative 2B: Move all of the Gramma loreto, Royal gramma. FMPs. Table contents are extracted from aquarium trade species listed in the Reef Microspathodon chrysurus, Yellowtail Table 8 of the Comprehensive Fish FMP into the Coral FMP. damselfish. Amendment to the FMPs of the U.S. Alternative 2C: Move all of the Stegastes adustus, Dusky damselfish. Caribbean to Address Required aquarium trade species listed in both Stegastes partitus, Bicolor damselfish. Provisions of the Magnuson-Stevens the Coral FMP and the Reef Fish FMPs Stegastes planifrons, Threespot Fishery Conservation and Management into a new FMP specific to aquarium damselfish. Act (Caribbean SFA Amendment). trade species. Stegastes leucostictus, Beaugregory. Alternative 3: Remove all aquarium Chaetodon capistratus, Foureye Coral FMP trade species from both the Coral FMP butterflyfish. Aphimedon compressa, Erect rope and from the Reef Fish FMPs. Chaetodon aculeatus, Longsnout sponge Alternative 4: Manage only those butterflyfish. Astrophyton muricatum, Giant basket aquarium trade species listed in either Chaetodon ocellatus, Spotfin star the Coral FMP or the Reef Fish FMP, for butterflyfish. Alpheaus armatus, Snapping shrimp which landings data are available Chaetodon striatus, Banded Aiptasia tagetes, Pale anemone during the year sequence chosen in butterflyfish. Astropecten spp., Sand stars Action 1(a). Remove remaining Serranus baldwini, Lantern bass. Analcidometra armata, Swimming aquarium trade species from the Coral Serranus annularis, Orangeback bass. crinoid FMP and the Reef Fish FMP. Serranus tabacarius, Tobaccofish. Bartholomea annulata, Corkscrew Alternative 4A: Aquarium trade Serranus tigrinus, Harlequin bass. anemone species that continue to be Federally- Serranus tortugarum, Chalk bass. Cynachirella alloclada, sponge (no managed under this alternative will be Opistognathus aurifrons, Yellowhead common name) retained in either the Coral FMP or the jawfish. Condylactis gigantea, Giant pink-tipped Reef Fish FMP as listed after the Opistognathus whitehursti, Dusky anemone Caribbean SFA Amendment (Table jawfish. Cyphoma gibbosum, Flamingo tongue 4.3.1). Xyrichtys novacula, Pearly razorfish. Chondrilla nucula, Chicken liver sponge Alternative 4B: Aquarium trade Xyrichtys splendens, Green razorfish. Diadema antillarum, Long-spined species that continue to be Federally- Echidna catenata, Chain moray. urchin managed under this alternative will be Gymnothorax funebris, Green moray. Davidaster spp., Crinoids consolidated and moved into the Coral Gymnothorax miliaris, Goldentail Discosoma spp., False coral FMP. moray. Echinometra spp., Purple urchin Alternative 4C: Aquarium trade Elacatinus oceanops, Neon goby. Eucidaris tribuloides, Pencil urchin species that continue to be Federally- Priolepis hipoliti, Rusty goby. Gonodactylus (Neogonodactylus) spp., managed under this alternative will be Equetus lanceolatus, Jackknife-fish. Smashing mantis shrimp consolidated and moved into the Reef Equetus punctatus, Spotted drum. Geodia neptuni, Potato sponge fish FMP. Chromis cyanea, Blue chromis. Haliclona sp., Finger sponge Alternative 4D: Aquarium trade Chromis insolata, Sunshinefish. Holothuria spp., Sea cucumbers species that continue to be Federally- Abudefduf saxatilis, Sergeant major. Hereractis lucida, Knobby anemone managed under this alternative will be Astrapogon stellatus, Conchfish. Lima spp., Fileclams consolidated and moved into a new Apogon maculatua, Flamefish. Lima scabra, Rough fileclam FMP specific to aquarium trade species. Amblycirrhitus pinos, Redspotted Lytechinus spp., Pin cushion urchin Alternative 5: Delegate management hawkfish. Lysmata spp., Peppermint shrimp authority for all aquarium trade species Antennarius spp., Frogfish. Linckia guildingii, Common comet star listed in either the Coral FMP or the Bothus lunatus, Peacock flounder. Lysiosquilla spp., Spearing mantis Reef Fish FMP to the jurisdiction of the Chaetodipterus faber, Atlantic shrimp appropriate commonwealth or territory spadefish. Lebrunia spp., Staghorn anemone as defined by Action 5 of this document. Canthigaster rostrata, Sharpnose puffer. Mithrax spp., Clinging crabs

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Mithrax cinctimanus, Banded clinging Periclimenes spp., Cleaner shrimp Tectitethya (Tethya) crypta, sponge (no crab Ricordia florida, Florida false coral common name) Mithrax sculptus, Green clinging crab Stichodactyla helianthus, Sun anemone Subphylum Urochordata, Tunicates Myriastra sp., sponge (no common Spirobranchus giganteus, Christmas tree Tridachia crispata, Lettuce sea slug name) worm Zoanthus spp., Sea mat Niphates digitalis, Pink vase sponge Sabellastarte magnifica, Magnificent Niphates erecta, Lavender rope sponge duster 4.3.2 Action 3(b). Establish Nemaster spp., Crinoids Sabellastarte spp., Tube worms management reference points for the Ophiocoma spp., Brittlestars Stenopus scutellatus, Golden shrimp aquarium trade species FMU. Ophioderma spp., Brittlestars Stenopus hispidus, Banded shrimp Alternative 1: No action. Keep the Ophioderma rubicundum, Ruby Stenorhynchus seticornis, Yellowline aquarium trade species in the ‘‘data brittlestar collection only’’ category as defined in Oreaster reticulatus, Cushion sea star arrow crab the Caribbean SFA Amendment. Ophidiaster guildingii, Comet star Spondylus americanus, Atlantic thorny Oliva reticularis, Netted olive oyster Alternative 2(a) through 2(k): Octopus spp. (except the Common Spinosella plicifera, Iridescent tube Establish management reference points octopus, O. vulgaris) sponge or proxies for the aquarium trade Paguristes spp., Hermit crabs Spinosella vaginalis, Lavendar tube species based on alternative selected in Paguristes cadenati, Red reef hermit sponge Action 3(a) and time series of landings crab Tripneustes ventricosus, Sea egg urchin data as defined in Action 1(a) in Percnon gibbesi, Nimble spray crab Thor amboinensis, Anemone shrimp Alternatives 1–5.

TABLE 4.3.2—MANAGEMENT REFERENCE POINTS OR PROXIES PROPOSED FOR THE AQUARIUM TRADE SPECIES UNDER ALTERNATIVE 2

Reference Point

Maximum Sustainable Yield: Alternative 2(a) ...... MSY proxy = Median annual landings selected by Council in Action 2(a). Alternative 2(b) ...... MSY proxy = Mean annual landings selected by Council in Action 2(a). Overfishing Threshold: Alternative 2(c) ...... OFL = MSY proxy; overfishing occurs when annual landings exceed the OFL. Alternative 2(d) ...... OFL = MSY proxy; overfishing occurs when annual landings exceed the OFL, unless NOAA Fisheries’ Southeast Fisheries Science Center (in consultation with the Caribbean Fishery Management Council and its SSC) determines the overage occurred because data collec- tion/monitoring improved, rather than because landings actually increased. Acceptable Biological Catch/ABC Control Rule: Alternative 2(e) ...... ABC = OFL. Alternative 2(f) ...... ABC = [OFL × 0.85]. Alternative 2(g) ...... ABC = [OFL × 0.75]. Alternative 2(h) ...... ABC = [OFL × 0.50]. Optimum Yield/Annual Catch Limit: Alternative 2(i) ...... OY = ACL = ABC. Alternative 2(j) ...... OY = ACL = [ABC × (0.85)]. Alternative 2(k) ...... OY = ACL = [ABC × (0.75)]. Alternative 2(l) ...... OY = ACL = [ABC × (0.50)].

4.4 Action 4: Redefine the conch in the 2010 Caribbean ACL 4.5 Action 5. Geographic Allocation/ Management of Conch Species FMU Amendment public hearing draft. Management Within the Queen Conch FMP TABLE 4.4.1—LIST OF CONCH SPECIES Alternative 1. No Action. Maintain U.S. Caribbean-wide reference points. Alternative 1: No action. Do not re- WITHIN THE QUEEN CONCH FMP evaluate and revise the conch species Alternative 2. Divide and manage NOT UNDERGOING OVERFISHING AS FMU. ACLs by island group (i.e., Puerto Rico, ESTABLISHED IN THE CARIBBEAN Alternative 2: Remove all conch St. Thomas/St. John, St. Croix) based on SFA AMENDMENT species, except for the queen conch the preferred management reference point time series selected by the Council (Strombus gigas), from the Queen Conch Scientific names Common names FMP. in Actions 1(a) and 2(a). Alternative 3: Delegate management Strombus gigas ...... Queen conch. Alternative 2A. Use a mid-point or authority, for all conch species except Strombus costatus .... Milk conch. equidistant method for dividing the EEZ queen conch (Strombus gigas), listed in Strombus pugilis ...... West Indian Fighting among islands. Conch. the Queen Conch FMP, to the Alternative 2B. Use a straight-line Strombus gallus ...... Roostertail Conch. approach for dividing the EEZ among jurisdiction of the appropriate Strombus raninus ...... Hawkwing Conch. commonwealth or territory as defined Fasciolaria tulipa ...... True Tulip. islands. by Action 5. Charonia variegata .... Atlantic Triton’s Trum- Alternative 2C. Use the St. Thomas Alternative 4: Retain all conch species pet. Fishermen’s Association under the Queen Conch FMP and define Cassis Cameo Helmet. recommendation for dividing the EEZ madagascarensis. among islands. management reference points or proxies Astrea tuber ...... Green Start Shell. based on the ACL established for queen BILLING CODE 3510–22–P

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BILLING CODE 3510–22–C

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4.6 Action 6: Annual Catch Limit Alternative 6. Establish a bag limit of: 4.7.2 Action 7(b) Applying Allocation and Management 2 spiny lobster per fisher and 12 spiny accountability measures. 4.6.1 Action 6(a) Separation of lobster per boat on a fishing day (would Alternative 1. No Action. Do not recreational and commercial sectors not apply to a fisher who has a valid apply AMs. (Puerto Rico only). commercial fishing license). Alternative 2. If AMs are triggered, based upon the preferred criteria chosen Alternative 1. No action. Do not 4.7 Action 7: Accountability Measures specify sector-specific ACLs. in Action 7(a), reduce the length of the for Species Considered in This fishing season for that species or species Alternative 2. Specify separate Amendment commercial and recreational ACLs group the year following the trigger based on the preferred management Accountability measures (AMs) are determination by the amount needed to reference point time series. defined as management controls to prevent such an overage from occurring 4.6.2 Action 6(b) Establish bag limit prevent ACLs, including sector-specific again. The needed changes will remain restrictions on recreational reef fish ACLs, from being exceeded, and to in effect until modified. harvest. correct or mitigate overages of the ACL Alternative 3. If AMs are triggered Alternative 1. No action. Do not if they occur (50 CFR 310(g)(1)). based upon the preferred criteria chosen establish bag limit restrictions on 4.7.1 Action 7(a) Triggering in action 7(a), reduce the length of the recreational reef fish harvest. accountability measures. Actions 1, 2, 3, fishing season for that species or species Alternative 2. Establish a 5-fish and 4 include alternatives to establish group the year following the trigger aggregate bag limit per person per and allocate ACLs. If an ACL is determination by the amount needed to fishing day (would not apply to a fisher exceeded, AM alternatives are provided prevent such an overage from occurring who has a valid commercial fishing to address overages. Action 7 again and to pay back the overage. The license) alternatives are presented in two parts, needed changes will remain in effect Alternative 3. Establish a 2-fish the first addresses the triggering of AMs until modified. aggregate bag limit per person per and the second addresses the actual 4.8 Action 8: Framework Measures fishing day (would not apply to a fisher actions needed to redress overages. who has a valid commercial fishing Alternative 1. No Action. Do not 4.8.1 Action 8(a): Establish license) establish criteria for triggering AMs. Framework Measures for Spiny Lobster Alternative 4. Prohibits the harvest of Alternative 2. Trigger AMs if the ACL FMP. species in the surgeonfish FMU (would is exceeded based upon: Alternative 1: No Action. Do not not apply to a fisher who has a valid Alternative 2A: A single year of establish framework measures for the commercial fishing license). landings beginning with landings from Spiny Lobster FMP. Alternative 5. Establish an aggregate 2011. Alternative 2: Amend the framework bag limit of 10 fish per fisher including Alternative 2B: A single year of procedures for the Spiny Lobster FMP to not more than two surgeonfish per landings beginning with landings from provide a mechanism to expeditiously fisher or six surgeonfish per boat, and 2011, then a 2-year running average of adjust the following reference points 30 aggregate fish per boat on a fishing landings in 2012 (average of 2011+2012) and management measures through day (would not apply to a fishers who and thereafter (i.e., 2011, 2011–2012, framework action: has a valid commercial fishing license). 2012–2013, etc.). a. Quota Requirements. Alternative 6. Establish an aggregate Alternative 2C: A single year of b. Seasonal Closures. bag limit of 5 fish per fisher including landings beginning with landings from c. Area Closures. not more than two surgeonfish per 2011, a 2-year average of landings in d. Fishing Year. fisher or six surgeonfish per boat, and e. Trip/Bag Limit. 2012 (average of 2011+2012), then a 3- 15 aggregate fish per boat on a fishing f. Size Limits. year running average of landings in day (would not apply to a fisher who g. Gear Restrictions or Prohibitions. 2013 (average of 2011+2012+2013) and has a valid commercial fishing license). h. Fishery Management Units (FMUs). 4.6.3 Action 6(c) Establish bag limit thereafter (i.e., 2011, 2011–2012, 2011– i. Total Allowable Catch (TAC). restrictions on recreational spiny lobster 2013, 2012–2014, etc.). j. Annual Catch Limits (ACLs). harvest. Alternative 3. Trigger AMs if the ACL k. Accountability Measures (AMs). Alternative 1. No action. Do not is exceeded as defined below unless l. Annual Catch Targets (ACTs). establish bag limit restrictions on NOAA Fisheries’ SEFSC (in m. Maximum Sustainable Yield (MSY). recreational lobster harvest. consultation with the Council and its n. Optimum Yield (OY). Alternative 2. Establish a 5-spiny SSC) determines the overage occurred o. Minimum Stock Size Threshold lobster aggregate bag limit per person because data collection/monitoring (MSST). per fishing day (would not apply to a improved rather than because catches p. Maximum Fishing Mortality fisher who has a valid commercial actually increased: Threshold (MFMT). fishing license). Alternative 3A: A single year of q. Overfishing Limit (OFL). Alternative 3. Establish a 2-spiny landings effective beginning 2011. r. Acceptable Biological Catch (ABC) lobster bag limit per person per fishing Alternative 3B: A single year of Control Rules. day (would not apply to a fisher who landings effective beginning 2011, then s. Actions To Minimize the Interaction has a valid commercial fishing license). a 2-year running average of landings of Fishing Gear With Endangered Alternative 4. Prohibits the harvest of effective 2012 and thereafter (i.e., 2011, Species or Marine Mammals. spiny lobster (would not apply to a 2011–2012, 2012–2013, etc.). Alternative 3: Amend the framework fishers who has a valid commercial Alternative 3C: A single year of procedures for the Spiny Lobster FMP to fishing license). landings effective beginning 2011, a 2- provide the Council with a mechanism Alternative 5. Establish a bag limit of: year running average of landings to expeditiously adjust a subset of 5 spiny lobster per fisher and 15 spiny effective 2012, then a 3-year running management measures outlined in lobster per boat on a fishing day (would average of landings effective 2013 and Alternative 2. not apply to a fisher who has a valid thereafter (i.e., 2011, 2011–2012, 2011– 4.8.2 Action 8 (b): Establish commercial fishing license). 2013, 2012–2014, etc.). Framework Measures for Corals and

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Reef Associated Plants and Invertebrates DEPARTMENT OF COMMERCE the contact listed below (see FOR FMP. FURTHER INFORMATION CONTACT), or Alternative 1: No Action. Do not National Oceanic and Atmospheric visiting the Internet at: http:// amend the current framework measures Administration www.nmfs.noaa.gov/pr/permits/ for the Corals FMP. RIN 0648–XA568 incidental.htm. Alternative 2: Amend the framework The National Science Foundation procedures for the Coral FMP to provide Takes of Marine Mammals Incidental to (NSF), which is providing funding to a mechanism to expeditiously adjust the Specified Activities; Taking Marine UAGI to conduct the survey, has following reference points and Mammals Incidental to a Marine prepared a draft ‘‘Environmental management measures through Geophysical Survey in the Arctic Assessment of a Marine Geophysical framework action: Ocean, September–October 2011 Survey by the R/V Marcus G. Langseth a. Quota Requirements. in the Arctic Ocean, September–October AGENCY: Commerce, National Oceanic 2011,’’ prepared by LGL Ltd., b. Seasonal Closures. and Atmospheric Administration Environmental Research Associates c. Area Closures. (NOAA), National Marine Fisheries (LGL), on behalf of UAGI and NSF, d. Fishing Year. Service (NMFS). which is also available at the same e. Trip/Bag Limit. ACTION: Notice; proposed incidental internet address. Documents cited in f. Size Limits. harassment authorization; request for this notice may also be viewed, by g. Gear Restrictions or Prohibitions. comments. appointment, during regular business h. Fishery Management Units (FMUs). hours, at the aforementioned address. SUMMARY: NMFS has received an i. Total Allowable Catch (TAC). FOR FURTHER INFORMATION CONTACT: application from the University of j. Annual Catch Limits (ACLs). Candace Nachman, Office of Protected Alaska Geophysics Institute (UAGI) for k. Accountability Measures (AMs). Resources, NMFS, (301) 427–8401. an Incidental Harassment Authorization l. Annual Catch Targets (ACTs). SUPPLEMENTARY INFORMATION: m. Maximum Sustainable Yield (MSY). (IHA) to take marine mammals, by harassment, incidental to conducting a n. Optimum Yield (OY). Background marine geophysical seismic survey in o. Minimum Stock Size Threshold the Arctic Ocean during September– Sections 101(a)(5)(A) and (D) of the (MSST). October 2011. Pursuant to the Marine MMPA (16 U.S.C. 1361 et seq.) direct p. Maximum Fishing Mortality Mammal Protection Act (MMPA), NMFS the Secretary of Commerce to allow, Threshold (MFMT). is requesting comments on its proposal upon request, the incidental, but not q. Overfishing Limit (OFL). to issue an IHA to UAGI to take, by intentional, taking of small numbers of r. Acceptable Biological Catch (ABC) Level B harassment only, several species marine mammals by U.S. citizens who control rules. of marine mammals during the specified engage in a specified activity (other than s. Actions To Minimize the Interaction activity. commercial fishing) within a specified of Fishing Gear With Endangered geographical region if certain findings DATES: Comments and information must Species or Marine Mammals. are made and either regulations are be received no later than August 15, issued or, if the taking is limited to Alternative 3: Amend the framework 2011. procedures for the Coral FMP to provide harassment, a notice of a proposed the Council with a mechanism to ADDRESSES: Comments on the authorization is provided to the public expeditiously adjust a subset of application should be addressed to P. for review. management measures outlined in Michael Payne, Chief, Permits, Authorization for incidental takings Alternative 2. Conservation and Education Division, shall be granted if NMFS finds that the Written comments can be sent to the Office of Protected Resources, National taking will have a negligible impact on Council not later than August 15, 2011, Marine Fisheries Service, 1315 East- the species or stock(s), will not have an or submitted at the Council meeting that West Highway, Silver Spring, MD unmitigable adverse impact on the will take place at La Concha hotel, in 20910. The mailbox address for availability of the species or stock(s) for San Juan, Puerto Rico on August 30–31, providing e-mail comments is subsistence uses (where relevant), and if 2011. [email protected]. NMFS is not the permissible methods of taking and responsible for e-mail comments sent to requirements pertaining to the Special Accommodations addresses other than the one provided mitigation, monitoring, and reporting of These meetings are physically here. Comments sent via e-mail, such takings are set forth. NMFS has accessible to people with disabilities. including all attachments, must not defined ‘‘negligible impact’’ in 50 CFR For more information or request for sign exceed a 10-megabyte file size. 216.103 as ‘‘* * * an impact resulting language interpretation and other Instructions: All comments received from the specified activity that cannot auxiliary aids, please contact Mr. are a part of the public record and will be reasonably expected to, and is not Miguel A. Rolo´n, Executive Director, generally be posted to http:// reasonably likely to, adversely affect the Caribbean Fishery Management Council, www.nmfs.noaa.gov/pr/permits/ species or stock through effects on 268 Mun˜ oz Rivera Avenue, Suite 1108, incidental.htm without change. All annual rates of recruitment or survival.’’ San Juan, Puerto Rico 00918–1920, Personal Identifying Information (for Section 101(a)(5)(D) of the MMPA telephone (787) 766–5926, at least five example, name, address, etc.) established an expedited process by days prior to the meeting date. voluntarily submitted by the commenter which citizens of the U.S. can apply for may be publicly accessible. Do not an authorization to incidentally take Dated: July 8, 2011. submit Confidential Business small numbers of marine mammals by Tracey L. Thompson, Information or otherwise sensitive or harassment. Section 101(a)(5)(D) Acting Director, Office of Sustainable protected information. establishes a 45-day time limit for Fisheries, National Marine Fisheries Service. A copy of the application used in this NMFS review of an application [FR Doc. 2011–17674 Filed 7–13–11; 8:45 am] document may be obtained by writing to followed by a 30 day public notice and BILLING CODE 3510–22–P the address specified above, telephoning comment period on any proposed

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authorizations for the incidental This is the principal means of marine which will improve our understanding harassment of marine mammals. Within mammal taking associated with these of the surrounding continents. 45 days of the close of the comment activities, and UAGI has requested an The survey will involve one source period, NMFS must either issue or deny authorization to take 11 species of vessel, the Langseth, which is operated the authorization. marine mammals by Level B by Lamont-Doherty Earth Observatory Except with respect to certain harassment. These species are: Bowhead (L–DEO), a part of Columbia University, activities not pertinent here, the MMPA whale; gray whale; humpback whale; under a cooperative agreement with defines ‘‘harassment’’ as: minke whale; fin whale; beluga whale; NSF. The Langseth will deploy an array 3 any act of pursuit, torment, or annoyance killer whale; bearded seal; spotted seal; of 10 airguns (1,830 in ) as an energy which (i) has the potential to injure a marine ringed seal; and ribbon seal. Take is not source at a tow depth of 6 m (19.7 ft). mammal or marine mammal stock in the wild expected to result from the use of the The receiving system will consist of a 2- [‘‘Level A harassment’’]; or (ii) has the MBES or SBP, for reasons discussed km (1.2-mi) long hydrophone streamer. potential to disturb a marine mammal or later in this notice; nor is take expected As the airgun array is towed along the marine mammal stock in the wild by causing to result from collision with the vessel survey lines, the hydrophone streamer disruption of behavioral patterns, including, because it is a single vessel moving at will receive the returning acoustic but not limited to, migration, breathing, a relatively slow speed during seismic signals and transfer the data to the on- nursing, breeding, feeding, or sheltering board processing system. In addition, at [‘‘Level B harassment’’]. acquisition within the survey, for a relatively short period of time least 72 sonobuoys will be deployed in Summary of Request (approximately 35 days). It is likely that order to record seismic refraction data. any marine mammal would be able to The Langseth will be avoiding the ice NMFS received an application on avoid the vessel. edge, and an ice expert will be available March 4, 2011, from UAGI for the to provide daily guidance and to predict taking, by harassment, of marine Description of the Specified Activity ice movements. mammals incidental to conducting a UAGI’s survey is proposed to occur in The proposed program will consist of marine geophysical seismic survey in the area 72.5–77° N. and 160–175° W. in a total of approximately 5,502 km (3,419 the Arctic Ocean. NMFS reviewed international waters and within the U.S. mi) of survey lines, not including UAGI’s application and identified a EEZ (see Figure 1 in UAGI’s transits to and from the survey area number of issues requiring further application). The project is scheduled to when airguns will not be in use (see clarification. After addressing comments occur from September 5–October 9, Figure 1 in UAGI’s application). Water from NMFS, UAGI modified its 2011. Some minor deviation from these depths within the study area range from application and submitted a revised dates is possible, depending on logistics approximately 30–3,800 m (98–12,467). application on May 10, 2011. The May and weather. Therefore, NMFS is Just over half of the survey effort (55%) 10, 2011, application is the one proposing to make the IHA valid from will occur in water 100–1,000 m (328– available for public comment (see September 5–October 23, 2011. The 3,281 ft) deep, 32% will take place in ADDRESSES) and considered by NMFS vessel will not be able to remain in the water >1,000 m (3,281 ft) deep, and 13% for this proposed IHA. area once ice begins to form, as the will occur in water depths <100 m (328 UAGI proposes to conduct a 2D Langseth is not an icebreaker. The ft). There will be additional seismic seismic survey in the Arctic Ocean, Langseth would depart from Dutch operations in the survey area associated Chukchi Sea, in both international Harbor on September 5, 2011, and sail with turns, airgun testing, and repeat waters and within the U.S. Exclusive northeast to arrive at approximately coverage of any areas where initial data Economic Zone (EEZ) in water depths 72.5° N., 162° W., where the seismic quality is sub-standard. In addition to ranging from 30–3,800 m (98–12,467 ft). survey will begin, more than 200 km the operations of the airgun array, a UAGI plans to conduct the proposed (124 mi) from Barrow. The entire cruise Kongsberg EM 122 MBES and a seismic survey from September 5 would last for approximately 35 days, Knudsen 320B SBP will also be through October 9, 2011, which and it is estimated that the total seismic operated from the Langseth includes vessel transit time from Dutch survey time will be approximately 25 continuously throughout the cruise. A Harbor. days, depending on ice conditions. 75-kHz ADCP may also be used. UAGI plans to use one source vessel, Seismic survey work is scheduled to All planned geophysical data the R/V Marcus G. Langseth (Langseth) terminate near the starting point at acquisition activities will be conducted and a seismic airgun array to collect approximately 72.4° N., 164° W. on by L–DEO with on-board assistance by seismic reflection data across the October 6; the vessel would then sail the scientists who have proposed the transition from the Chukchi Shelf to the south to Dutch Harbor for arrival on study. The Principal Investigator is Dr. Chukchi Borderland to define the October 9. There could be extra days of Bernard Coakley of UAGI. The vessel apparent change in structure between seismic shooting, if the collected data will be self-contained, and the crew will two large continental blocks. In addition are of substandard quality. live aboard the vessel for the entire to the proposed operations of the The proposed survey will include cruise. seismic airgun array, UAGI intends to collection of seismic reflection data operate a multibeam echosounder across the transition from the Chukchi Vessel Specifications (MBES) and a sub-bottom profiler (SBP) Shelf to the Chukchi Borderland to The Langseth will tow the 10-airgun continuously throughout the survey. A define the apparent change in structure array along predetermined lines. The 75-kilohertz (kHz) acoustic Doppler between two large continental blocks. vessel will also tow the hydrophone current profiler (ADCP) may also be This study will test existing tectonic streamer and deploy the sonobuoys. used. models and develop new constraints on When the Langseth is towing the airgun Acoustic stimuli (i.e., increased the development of the Amerasian Basin array, as well as the hydrophone underwater sound) generated during the and will substantially advance our streamer, the turning rate of the vessel operation of the seismic airgun array understanding of the Mesozoic history while the gear is deployed is limited. may have the potential to cause a short- of this basin. In addition, these data will Thus, the maneuverability of the vessel term behavioral disturbance for marine enable the formulation of new tectonic is limited during operations with the mammals in the proposed survey area. models for the history of this region, streamer.

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The vessel has a length of 71.5 m (235 pressure of the array is 1,950 pounds (4) ADCP ft); a beam of 17 m (56 ft); a maximum per square inch. During firing, a brief The Ocean Surveyor 75 is an ADCP draft of 5.9 m (19 ft); and a gross (approximately 0.1 s) pulse of sound is operating at a frequency of 75 kHz, tonnage of 3,834. The Langseth was emitted. The airguns will be silent producing a ping every 1.4 s. The designed as a seismic research vessel during the intervening periods. system is a four-beam phased array with with a propulsion system designed to be The tow depth of the array will be 6 a beam angle of 30°. Each beam has a as quiet as possible to avoid interference m (19.7 ft). Because the actual source is width of 4°, and there is no overlap. with the seismic signals emanating from a distributed sound source (10 airguns) Maximum output is 1 kilowatt, with a the airgun array. The ship is powered by rather than a single point source, the maximum depth range of 700 m (2,296.6 two 3,550 horsepower (hp) Bergen BRG– highest sound levels measurable at any ft). 6 diesel engines which drive two location in the water will be less than propellers directly. Each propeller has the nominal source level. In addition, Metrics Used in This Document four blades, and the shaft typically the effective source level for sound This section includes a brief rotates at 750 revolutions per minute. propagating in near-horizontal explanation of the sound measurements The vessel also has an 800 hp directions will be substantially lower frequently used in the discussions of bowthruster, which is not used during than the nominal source level acoustic effects in this document. Sound seismic acquisition. The Langseth’s applicable to downward propagation pressure is the sound force per unit operation speed during seismic because of the directional nature of the area, and is usually measured in acquisition is typically 7.4 to 9.3 km per sound from the airgun array. micropascals (μPa), where 1 pascal (Pa) hour (hr) (km/hr) (4 to 5 knots [kts]). is the pressure resulting from a force of When not towing seismic survey gear, (2) MBES one newton exerted over an area of one the Langseth typically cruises at 18.5 The Langseth will operate a square meter. Sound pressure level km/hr (10 kts). The Langseth has a range (SPL) is expressed as the ratio of a of 25,000 km (15,534 mi) (the distance Kongsberg EM 122 MBES concurrently during airgun operations to map measured sound pressure and a the vessel can travel without refueling). reference level. The commonly used The Langseth is not an ice- characteristics of the ocean floor. The hull-mounted MBES emits brief pulses reference pressure level in underwater strengthened vessel and must especially μ of sound (also called a ping) (10.5 to 13 acoustics is 1 Pa, and the units for consider safety-of-operations while SPLs are dB re: 1 μPa. SPL (in decibels towing a significant amount of kHz, usually 12 kHz) in a fan-shaped beam that extends downward and to the [dB]) = 20 log (pressure/reference equipment behind the vessel; it pressure). therefore cannot operate in ice sides of the ship. The transmitting beamwidth is 1° fore-aft and 150° SPL is an instantaneous measurement conditions that would pose serious and can be expressed as the peak, the hazards to the vessel and crew. After athwartship, and the maximum source level is 242 dB re 1 μPa (rms). peak-peak (p-p), or the root mean square consideration of the operational (rms). Root mean square, which is the challenges, however, NSF and L–DEO For deep-water operations, each ping square root of the arithmetic average of concluded that the Langseth would be consists of eight (in water greater than the squared instantaneous pressure able to support the activity if it 1,000 m [3,281 ft]) or four (in water less values, is typically used in discussions remained in ice-free waters. An ice than 1,000 m [3,281 ft]) successive, fan- of the effects of sounds on vertebrates, expert would be available to help shaped transmissions, each ensonifying ° and all references to SPL in this provide guidance during any operations. a sector that extends 1 fore-aft. document refer to rms unless otherwise The vessel also has an observation Continuous-wave pulses increase from 2 noted. SPL does not take the duration of tower from which protected species to 15 milliseconds (ms) long in water a sound into account. visual observers (PSVO) will watch for depths up to 2,600 m (8,530.2 ft), and marine mammals before and during the frequency-modulated chirp pulses up to Predicted Sound Levels proposed airgun operations. When 100 ms long are used in water greater Received sound levels have been stationed on the observation platform, than 2,600 m (8,530.2 ft). The successive predicted by Marine Acoustics, Inc. the PSVO’s eye level will be transmissions span an overall cross- (MAI), in relation to distance and ° approximately 21.5 m (71 ft) above sea track angular extent of about 150 , with direction from the airguns, for the 10- level, providing the PSVO an 2 ms gaps between the pulses for airgun array. The MAI model was site unobstructed view around the entire successive sectors. specific; sound velocity profiles, vessel. (3) SBP bathymetry, and bottom composition Acoustic Source Specifications were used to model propagation at The Langseth will also operate a seven sites 120–2,727 m (328–8,947 ft) (1) Airgun Array Knudsen 320B SBP continuously deep in the survey area that represented During the survey, the airgun array to throughout the cruise simultaneously different physiographic provinces be used will consist of 10 airguns, with with the MBES to map and provide described by Jakobsson et al. (2003). a total volume of approximately 1,830 information about the sedimentary The source model used was the CASS/ cubic inches (in3). The airgun array will features and bottom topography. The GRAB model, and propagation was consist of a mixture of Bolt 1500LL and beam is transmitted as a 27° cone, modeled using the Range-Dependent Bolt 1900LLX airguns, set in a typical which is directed downward by a 3.5 Acoustic Model (RAM) (Zingarelli and configuration of one of the Langseth’s kHz transducer in the hull of the King, 2005). The detailed modeling four linear arrays or ‘‘strings’’ (see Langseth. The maximum output is 1,000 report can be found in Appendix A1 of Figure 2 in UAGI’s application); the first watts (204 dB re 1 μPa), but in practice, the draft EA (see ADDRESSES). and last airguns in the strings are spaced the output varies with water depth. The Received sound levels for a single 40- 16 m (52 ft) apart. The airgun array will pulse interval is 1 s, but a common in3 airgun were modeled by L–DEO. The be towed approximately 100 m (328 ft) mode of operation is to broadcast five tow depth has minimal effect on the behind the Langseth. The shot interval pings at 1-s intervals followed by a 5-s maximum near-field output and the will be 15 seconds (s). The firing pause. shape of the frequency spectrum for the

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single airgun; thus, the predicted zone radii in shallow and intermediate- distances at which three rms sound exclusion zone radii are essentially the depth water as was done for previous L– levels are expected to be received from same at different tow depths. As the L– DEO surveys from the Langseth. A the 10-airgun array and a single airgun. DEO model does not allow for bottom detailed description of the L–DEO For the 10-airgun array, distances were interactions, and thus is most directly modeling effort is provided in Appendix modeled at seven sites; the distances in applicable to deep water and to A2 of the draft EA. Table 1 are the averages from the sites relatively short ranges, correction Table 1 in this document and Table 1 in each depth range. factors were used to estimate exclusion in UAGI’s application show the

TABLE 1—MAXIMUM PREDICTED DISTANCES TO WHICH SOUND LEVELS ≥190, 180, AND 160 DB RE 1 μPA (RMS) COULD BE RECEIVED IN VARIOUS WATER-DEPTH CATEGORIES DURING THE PROPOSED SURVEY IN THE ARCTIC OCEAN. THE DISTANCES FOR THE 10-AIRGUN ARRAY ARE THE AVERAGES OF MODELED 95% PERCENTILE DISTANCES AT MOD- ELING SITES IN EACH DEPTH RANGE

Predicted RMS radii (m) Source and volume Tow depth Water depth (m) 190 dB 180 dB 160 dB

Single Bolt ...... Deep (>1000 m) ...... 12 40 385 6 Intermediate (100–1000 m) ...... 18 60 578 Shallow (<100) ...... 150 296 1,050 1 string ...... Deep (>1000 m) ...... 130 425 14,070 10 airguns ...... 6 Intermediate (200–1000 m) ...... 130 1400 13,980 1830 in3 ...... Shallow (<200) ...... 190 1870 14,730 * The tow depth has minimal effect on the maximum near-field output and the shape of the frequency spectrum for the single 40 in3 airgun; thus, the predicted safety radii are essentially the same at any tow depth.

NMFS expects that acoustic stimuli segments of the bearded seal (75 FR occurrence in the proposed project area. resulting from the proposed operation of 77496) in the Federal Register. Neither When reviewing the application, NMFS the single airgun or the 10 airgun array species is considered depleted under determined that the species descriptions has the potential to harass marine the MMPA. provided by UAGI correctly mammals, incidental to the conduct of The bowhead and beluga whales and characterized the abundance and the proposed seismic survey. NMFS the ringed and bearded seals are the distribution, seasonal distribution, expects these disturbances to be marine mammal species most likely to population status, and life history and temporary and result, at worst, in a be encountered during this survey, with behavior of each species. Additional temporary modification in behavior the ringed seal being the most likely information can also be found in the and/or low-level physiological effects marine mammal species to occur NMFS Stock Assessment Reports (SAR). (Level B harassment) of small numbers throughout the proposed survey area. The 2010 Alaska Marine Mammal SAR of certain species of marine mammals. Although humpback and minke whales is available on the Internet at: http:// NMFS does not expect that the are uncommon in the Arctic Ocean, www.nmfs.noaa.gov/pr/pdfs/sars/ movement of the Langseth, during the sightings of both species have occurred ak2010.pdf. conduct of the seismic survey, has the in the Chukchi Sea in recent years The application also presents how potential to harass marine mammals (Brueggeman, 2009; Haley et al., 2010; UAGI calculated the estimated densities because of the relatively slow operation Clarke et al., 2011). for the marine mammals in the speed of the vessel (4–5 kts [7.4 to 9.3 There are scattered records of narwhal proposed survey area. NMFS has km/hr]) during seismic data acquisition. in Alaskan waters, where the species is reviewed these data and determined considered extralimital (Reeves et al., them to be the best available scientific Description of Marine Mammals in the 2002). Harbor porpoises occur mainly in information for the purposes of the Area of the Specified Activity shelf areas where they can dive to proposed IHA. UAGI’s methodology for The Chukchi Sea supports a diverse depths of at least 220 m (722 ft) and stay estimating take is described further in assemblage of marine mammals, submerged for more than 5 min the ‘‘Estimated Take by Incidental including: Bowhead, gray, beluga, killer, (Harwood and Wilson, 2001). This Harassment’’ section found later in this minke, humpback, and fin whales; species prefers shallower waters, document. harbor porpoise; ringed, ribbon, spotted, making it unlikely that harbor porpoises and bearded seals; narwhals; polar would be encountered during the Brief Background on Marine Mammal bears; and walruses. The bowhead, proposed seismic survey. Because of the Hearing humpback, and fin whales are listed as rarity of these two species in the When considering the influence of endangered, and the polar bear is listed proposed survey area, they are not various kinds of sound on the marine as threatened under the U.S. considered further in this document. environment, it is necessary to Endangered Species Act of 1973 (ESA; The polar bear and walrus are managed understand that different kinds of 16 U.S.C. 1531 et seq.). All of these by the U.S. Fish and Wildlife Service marine life are sensitive to different species are also considered depleted (USFWS) and are not considered further frequencies of sound. Based on available under the MMPA. On December 10, in this proposed IHA notice. behavioral data, audiograms have been 2010, NMFS published a notification of Refer to Sections III and IV of UAGI’s derived using auditory evoked proposed threatened status for application for detailed information potentials, anatomical modeling, and subspecies of the ringed seal (75 FR regarding the abundance and other data, Southall et al. (2007) 77476) and a notification of proposed distribution, seasonal distribution, designate ‘‘functional hearing groups’’ threatened and not warranted status for population status, and life history and for marine mammals and estimate the subspecies and distinct population behavior of these species and their lower and upper frequencies of

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functional hearing of the groups. The Tolerance significant fraction of the time functional groups and the associated Studies on marine mammals’ (Richardson et al., 1995). Even in the frequencies are indicated below (though tolerance to sound in the natural absence of manmade sounds, the sea is animals are less sensitive to sounds at environment are relatively rare. usually noisy. Background ambient the outer edge of their functional range Richardson et al. (1995) define tolerance noise often interferes with or masks the and most sensitive to sounds of as the occurrence of marine mammals in ability of an animal to detect a sound frequencies within a smaller range areas where they are exposed to human signal even when that signal is above its somewhere in the middle of their activities or man-made noise. In many absolute hearing threshold. Natural functional hearing range): cases, tolerance develops by the animal ambient noise includes contributions • Low frequency cetaceans (13 habituating to the stimulus (i.e., the from wind, waves, precipitation, other species of mysticetes): Functional gradual waning of responses to a animals, and (at frequencies above 30 hearing is estimated to occur between repeated or ongoing stimulus) kHz) thermal noise resulting from approximately 7 Hz and 22 kHz (Richardson, et al., 1995; Thorpe, 1963), molecular agitation (Richardson et al., (however, a study by Au et al. (2006) of but because of ecological or 1995). Background noise also can humpback whale songs indicate that the physiological requirements, many include sounds from human activities. range may extend to at least 24 kHz); marine animals may need to remain in Masking of natural sounds can result • Mid-frequency cetaceans (32 areas where they are exposed to chronic when human activities produce high species of dolphins, six species of larger stimuli (Richardson, et al., 1995). levels of background noise. Conversely, toothed whales, and 19 species of Numerous studies have shown that if the background level of underwater beaked and bottlenose whales): pulsed sounds from airguns are often noise is high (e.g., on a day with strong Functional hearing is estimated to occur readily detectable in the water at wind and high waves), an between approximately 150 Hz and 160 distances of many kilometers. Malme et anthropogenic noise source will not be kHz; al., (1985) studied the responses of detectable as far away as would be • High frequency cetaceans (eight humpback whales on their summer possible under quieter conditions and species of true porpoises, six species of feeding grounds in southeast Alaska to will itself be masked. river dolphins, Kogia, the franciscana, seismic pulses from an airgun with a Masking effects of pulsed sounds and four species of cephalorhynchids): total volume of 100 in 3. They noted that (even from large arrays of airguns) on functional hearing is estimated to occur the whales did not exhibit persistent marine mammal calls and other natural between approximately 200 Hz and 180 avoidance when exposed to the airgun sounds are expected to be limited. kHz; and and concluded that there was no clear Because of the intermittent nature and • Pinnipeds in Water: functional evidence of avoidance, despite the low duty cycle of seismic airgun pulses, hearing is estimated to occur between possibility of subtle effects, at received animals can emit and receive sounds in approximately 75 Hz and 75 kHz, with levels up to 172 dB re 1 μPa. the relatively quiet intervals between the greatest sensitivity between Weir (2008) observed marine mammal pulses. However, in some situations, approximately 700 Hz and 20 kHz. responses to seismic pulses from a 24 reverberation occurs for much or the As mentioned previously in this airgun array firing a total volume of entire interval between pulses (e.g., document, 11 marine mammal species either 5,085 in 3 or 3,147 in 3 in Angolan Simard et al., 2005; Clark and Gagnon, (seven cetacean and four pinniped waters between August 2004 and May 2006), which could mask calls. Some species) are likely to occur in the 2005. Weir recorded a total of 207 baleen and toothed whales are known to proposed survey area. Of the seven sightings of humpback whales (n = 66), continue calling in the presence of cetacean species likely to occur in sperm whales (n = 124), and Atlantic seismic pulses, and their calls can UAGI’s propose survey area, five are spotted dolphins (n = 17) and reported usually be heard between the seismic classified as low frequency cetaceans that there were no significant pulses (e.g., Richardson et al., 1986; (i.e., bowhead, gray, humpback, minke, differences in encounter rates McDonald et al., 1995; Greene et al., and fin whales) and two are classified (sightings/hr) for humpback and sperm 1999; Nieukirk et al., 2004; Smultea et as mid-frequency cetaceans (i.e., beluga whales according to the airgun array’s al., 2004; Holst et al., 2005a,b, 2006; and and killer whales) (Southall et al., 2007). operational status (i.e., active versus Dunn and Hernandez, 2009). However, silent). Clark and Gagnon (2006) reported that Potential Effects of the Specified fin whales in the northeast Pacific Activity on Marine Mammals Masking Ocean went silent for an extended Acoustic stimuli generated by the The term masking refers to the period starting soon after the onset of a operation of the airguns, which inability of a subject to recognize the seismic survey in the area. Similarly, introduce sound into the marine occurrence of an acoustic stimulus as a there has been one report that sperm environment, may have the potential to result of the interference of another whales ceased calling when exposed to cause Level B harassment of marine acoustic stimulus (Clark et al., 2009). pulses from a very distant seismic ship mammals in the proposed survey area. Marine mammals are highly dependent (Bowles et al., 1994). However, more The effects of sounds from airgun on sound, and their ability to recognize recent studies found that they continued operations might include one or more of sound signals amid other noise is calling in the presence of seismic pulses the following: tolerance, masking of important in communication, predator (Madsen et al., 2002; Tyack et al., 2003; natural sounds, behavioral disturbance, and prey detection, and, in the case of Smultea et al., 2004; Holst et al., 2006; temporary or permanent hearing toothed whales, echolocation. and Jochens et al., 2008). Dolphins and impairment, or non-auditory physical or Introduced underwater sound may, porpoises commonly are heard calling physiological effects (Richardson et al., through masking, reduce the effective while airguns are operating (e.g., 1995; Gordon et al., 2004; Nowacek et communication distance of a marine Gordon et al., 2004; Smultea et al., 2004; al., 2007; Southall et al., 2007). Takes by mammal species if the frequency of the Holst et al., 2005a,b; and Potter et al., serious injury or mortality are not source is close to that used as a signal 2007). The sounds important to small anticipated to occur as a result of the by the marine mammal, and if the odontocetes are predominantly at much proposed activities. anthropogenic sound is present for a higher frequencies than are the

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dominant components of airgun sounds, within approximately 5 km (3.1 mi). separation between a sound source and thus limiting the potential for masking. Additionally, masking is more likely to a masking noise source had little effect Although some degree of masking is occur closer to a sound source, and on the degree of masking when the inevitable when high levels of manmade distant anthropogenic sound is less sound frequency was 18 kHz, in contrast broadband sounds are introduced into likely to mask short-distance acoustic to the pronounced effect at higher the sea, marine mammals have evolved communication (Richardson et al., frequencies. Directional hearing has systems and behavior that function to 1995a). been demonstrated at frequencies as low reduce the impacts of masking. Redundancy and context can also as 0.5–2 kHz in several marine Structured signals, such as the facilitate detection of weak signals. mammals, including killer whales echolocation click sequences of small These phenomena may help marine (Richardson et al., 1995). This ability toothed whales, may be readily detected mammals detect weak sounds in the may be useful in reducing masking at even in the presence of strong presence of natural or manmade noise. these frequencies. In summary, high background noise because their Most masking studies in marine levels of noise generated by frequency content and temporal features mammals present the test signal and the anthropogenic activities may act to usually differ strongly from those of the masking noise from the same direction. mask the detection of weaker background noise (Au and Moore, 1988, The sound localization abilities of biologically important sounds by some 1990). The components of background marine mammals suggest that, if signal marine mammals. This masking may be noise that are similar in frequency to the and noise come from different more prominent for lower frequencies. sound signal in question primarily directions, masking would not be as For higher frequencies, such as that determine the degree of masking of that severe as the usual types of masking used in echolocation by toothed whales, signal. studies might suggest (Richardson et al., several mechanisms are available that There is evidence of other marine 1995). The dominant background noise may allow them to reduce the effects of mammal species continuing to call in may be highly directional if it comes such masking. the presence of industrial activity. For from a particular anthropogenic source In general, NMFS expects the masking example, bowhead whale calls are such as a ship or industrial site. effects of seismic pulses to be minor, frequently detected in the presence of Directional hearing may significantly given the normally intermittent nature seismic pulses, although the number of reduce the masking effects of these of seismic pulses. Refer to Appendix B calls detected may sometimes be noises by improving the effective signal- (4) of the draft EA for a more detailed reduced (Richardson et al., 1986; Greene to-noise ratio. In the cases of high- discussion of masking effects on marine et al., 1999; Blackwell et al., 2009). frequency hearing by the bottlenose mammals. Additionally, annual acoustical dolphin, beluga whale, and killer whale, Behavioral Disturbance monitoring near BP’s Northstar empirical evidence confirms that production facility during the fall masking depends strongly on the Disturbance includes a variety of bowhead migration westward through relative directions of arrival of sound effects, including subtle to conspicuous the Beaufort Sea has recorded thousands signals and the masking noise (Penner et changes in behavior, movement, and of calls each year (for examples, see al., 1986; Dubrovskiy, 1990; Bain et al., displacement. Reactions to sound, if Richardson et al., 2007; Aerts and 1993; Bain and Dahlheim, 1994). any, depend on species, state of Richardson, 2008). Construction, Toothed whales, and probably other maturity, experience, current activity, maintenance, and operational activities marine mammals as well, have reproductive state, time of day, and have been occurring from this facility additional capabilities besides many other factors (Richardson et al., for more than 10 years. To compensate directional hearing that can facilitate 1995; Wartzok et al., 2004; Southall et and reduce masking, some mysticetes detection of sounds in the presence of al., 2007; Weilgart, 2007). If a marine may alter the frequencies of their background noise. There is evidence mammal does react briefly to an communication sounds (Richardson et that some toothed whales can shift the underwater sound by changing its al., 1995a; Parks et al., 2007). Masking dominant frequencies of their behavior or moving a small distance, the processes in baleen whales are not echolocation signals from a frequency impacts of the change are unlikely to be amenable to laboratory study, and no range with a lot of ambient noise toward significant to the individual, let alone direct measurements on hearing frequencies with less noise (Au et al., the stock or population. However, if a sensitivity are available for these 1974, 1985; Moore and Pawloski, 1990; sound source displaces marine species. It is not currently possible to Thomas and Turl, 1990; Romanenko mammals from an important feeding or determine with precision the potential and Kitain, 1992; Lesage et al., 1999). A breeding area for a prolonged period, consequences of temporary or local few marine mammal species are known impacts on individuals and populations background noise levels. However, to increase the source levels or alter the could be significant (e.g., Lusseau and Parks et al. (2007) found that right frequency of their calls in the presence Bejder, 2007; Weilgart, 2007). Given the whales altered their vocalizations, of elevated sound levels (Dahlheim, many uncertainties in predicting the possibly in response to background 1987; Au, 1993; Lesage et al., 1993, quantity and types of impacts of noise noise levels. For species that can hear 1999; Terhune, 1999; Foote et al., 2004; on marine mammals, it is common over a relatively broad frequency range, Parks et al., 2007, 2009; Di Iorio and practice to estimate how many as is presumed to be the case for Clark, 2009; Holt et al., 2009). mammals would be present within a mysticetes, a narrow band source may These data demonstrating adaptations particular distance of industrial only cause partial masking. Richardson for reduced masking pertain mainly to activities and/or exposed to a particular et al. (1995a) note that a bowhead whale the very high frequency echolocation level of industrial sound. In most cases, 20 km (12.4 mi) from a human sound signals of toothed whales. There is less this approach likely overestimates the source, such as that produced during oil information about the existence of numbers of marine mammals that would and gas industry activities, might hear corresponding mechanisms at moderate be affected in some biologically- strong calls from other whales within or low frequencies or in other types of important manner. approximately 20 km (12.4 mi), and a marine mammals. For example, Zaitseva The sound criteria used to estimate whale 5 km (3.1 mi) from the source et al. (1980) found that, for the how many marine mammals might be might hear strong calls from whales bottlenose dolphin, the angular disturbed to some biologically-

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important degree by a seismic program 3–4 km (1.9–2.5 mi) from the operating Studies of the bowhead whale show are based primarily on behavioral seismic boat. In the 2000 study, that their responsiveness to seismic observations of a few species. Scientists McCauley et al. (2000a) noted localized surveys can be quite variable depending have conducted detailed studies on displacement during migration of 4–5 on their activity (migrating vs. feeding). humpback, gray, bowhead, and sperm km (2.5–3.1 mi) by traveling pods and Bowhead whales migrating west across whales. Less detailed data are available 7–12 km (4.3–7.5 mi) by more sensitive the Alaskan Beaufort Sea in autumn, in for some other species of baleen whales, resting pods of cow-calf pairs. particular, are unusually responsive, small toothed whales, and sea otters, but Avoidance distances with respect to the with substantial avoidance occurring for many species there are no data on single airgun were smaller but out to distances of 20–30 km (12.4–18.6 responses to marine seismic surveys. consistent with the results from the full mi) from a medium-sized airgun source Baleen Whales—Baleen whales array in terms of the received sound at received sound levels of around 120 generally tend to avoid operating levels. The mean received level for to 130 dB re 1 μPa (Miller et al., 1999; airguns, but avoidance radii are quite initial avoidance of an approaching Richardson et al., 1999; see Appendix B variable (reviewed in Richardson et al., airgun was 140 dB re 1 μPa for (5) of NSF’s EA). However, more recent 1995). Whales are often reported to humpback pods containing females, research on bowhead whales (Miller et show no overt reactions to pulses from and, at the mean closest point of al., 2005; Harris et al., 2007) large arrays of airguns at distances approach distance, the received level corroborates earlier evidence that, beyond a few kilometers, even though was 143 dB re 1 μPa. The initial during the summer feeding season, the airgun pulses remain well above avoidance response generally occurred bowheads are not as sensitive to seismic ambient noise levels out to much longer at distances of 5–8 km (3.1–5 mi) from sources. Nonetheless, subtle but distances. However, as reviewed in the airgun array and 2 km (1.2 mi) from statistically significant changes in Appendix B (5) of NSF’s EA, baleen the single airgun. However, some surfacing–respiration–dive cycles were whales exposed to strong noise pulses individual humpback whales, especially evident upon statistical analysis from airguns often react by deviating males, approached within distances of (Richardson et al., 1986). In the from their normal migration route and/ 100–400 m (328–1,312 ft), where the summer, bowheads typically begin to or interrupting their feeding and moving maximum received level was 179 dB re show avoidance reactions at received μ away. In the cases of migrating gray and 1 μPa. levels of about 152 to 178 dB re 1 Pa bowhead whales, the observed changes Data collected by observers during (Richardson et al., 1986, 1995; in behavior appeared to be of little or no several seismic surveys in the Ljungblad et al., 1988; Miller et al., biological consequence to the animals Northwest Atlantic showed that sighting 2005). (Richardson et al., 1995). They simply rates of humpback whales were Reactions of migrating and feeding avoided the sound source by displacing significantly greater during periods of (but not wintering) gray whales to their migration route to varying degrees seismic surveys have been studied. no seismic compared with periods when but within the natural boundaries of the Malme et al. (1986, 1988) studied the a full array was operating (Moulton and migration corridors. responses of feeding eastern Pacific gray Holst, 2010). In addition, humpback Studies of gray, bowhead, and whales to pulses from a single 100 in 3 whales were more likely to swim away humpback whales have shown that airgun off St. Lawrence Island in the and less likely to swim towards a vessel seismic pulses with received levels of northern Bering Sea. They estimated, during seismic vs. non-seismic periods 160 to 170 dB re 1 μPa (rms) seem to based on small sample sizes, that 50% (Moulton and Holst, 2010). cause obvious avoidance behavior in a of feeding gray whales stopped feeding substantial fraction of the animals Humpback whales on their summer at an average received pressure level of exposed (Malme et al., 1986, 1988; feeding grounds in southeast Alaska did 173 dB re 1 μPa on an (approximate) Richardson et al., 1995). In many areas, not exhibit persistent avoidance when rms basis, and that 10% of feeding seismic pulses from large arrays of exposed to seismic pulses from a 100 whales interrupted feeding at received 3 airguns diminish to those levels at in airgun (Malme et al., 1985). Some levels of 163 dB re 1 μPa. Those findings distances ranging from 4–15 km (2.5–9.3 humpbacks seemed ‘‘startled’’ at were generally consistent with the mi) from the source. A substantial received levels of 150 to 169 dB re 1 μ results of experiments conducted on proportion of the baleen whales within Pa. Malme et al. (1985) concluded that larger numbers of gray whales that were those distances may show avoidance or there was no clear evidence of migrating along the California coast other strong behavioral reactions to the avoidance, despite the possibility of (Malme et al., 1984; Malme and Miles, airgun array. Subtle behavioral changes subtle effects, at received levels up to 1985), and western Pacific gray whales μ sometimes become evident at somewhat 172 dB re 1 Pa (rms). feeding off Sakhalin Island, Russia lower received levels, and studies Studies have suggested that south (Wursig et al., 1999; Gailey et al., 2007; summarized in Appendix B (5) of NSF’s Atlantic humpback whales wintering off Johnson et al., 2007; Yazvenko et al., EA have shown that some species of Brazil may be displaced or even strand 2007a, b), along with data on gray baleen whales, notably bowhead and upon exposure to seismic surveys (Engel whales off British Columbia (Bain and humpback whales, at times, show strong et al., 2004). The evidence for this was Williams, 2006). avoidance at received levels lower than circumstantial and subject to alternative Various species of Balaenoptera (blue, 160 to 170 dB re 1 μPa (rms). explanations (IAGC, 2004). Also, the sei, fin, and minke whales) have McCauley et al. (1998, 2000a) studied evidence was not consistent with occasionally been seen in areas the responses of humpback whales off subsequent results from the same area of ensonified by airgun pulses (Stone, western Australia to a full-scale seismic Brazil (Parente et al., 2006) or with 2003; MacLean and Haley, 2004; Stone survey with a 16 airgun array (2,678 direct studies of humpbacks exposed to and Tasker, 2006), and calls from blue in 3) and to a single airgun (20 in3) with seismic surveys in other areas and and fin whales have been localized in a source level of 227 dB re 1 μPa (p-p). seasons. After allowance for data from areas with airgun operations (e.g., In the 1998 study, they documented that subsequent years, there was no McDonald et al., 1995; Dunn and avoidance reactions began at 5–8 km observable direct correlation between Hernandez, 2009, Castellote et al., (3.1–5 mi) from the array, and that those strandings and seismic surveys (IWC, 2010). Sightings by observers on seismic reactions kept most pods approximately 2007:236). vessels off the United Kingdom from

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1997 to 2000 suggest that, during times exploration (and much ship traffic) in beluga whale is a species that (at least of good sightability, sighting rates for that area for decades (Appendix A in at times) shows long-distance avoidance mysticetes (mainly fin and sei whales) Malme et al., 1984; Richardson et al., of seismic vessels. Aerial surveys were similar when large arrays of 1995; Allen and Angliss, 2010). The conducted in the southeastern Beaufort airguns were shooting vs. silent (Stone, western Pacific gray whale population Sea during summer found that sighting 2003; Stone and Tasker, 2006). did not seem affected by a seismic rates of beluga whales were significantly However, these whales tended to exhibit survey in its feeding ground during a lower at distances 10–20 km (6.2–12.4 localized avoidance, remaining previous year (Johnson et al., 2007). mi) compared with 20–30 km (12.4–18.6 significantly further (on average) from Similarly, bowhead whales have mi) from an operating airgun array, and the airgun array during seismic continued to travel to the eastern observers on seismic boats in that area operations compared with non-seismic Beaufort Sea each summer, and their rarely saw belugas (Miller et al., 2005; periods (Stone and Tasker, 2006). In a numbers have increased notably, Harris et al., 2007). study off of Nova Scotia, Moulton and despite seismic exploration in their Captive bottlenose dolphins and Miller (2005) found little difference in summer and autumn range for many beluga whales exhibited changes in sighting rates (after accounting for water years (Richardson et al., 1987; Allen and behavior when exposed to strong pulsed depth) and initial sighting distances of Angliss, 2010). sounds similar in duration to those balaenopterid whales when airguns Toothed Whales—Little systematic typically used in seismic surveys were operating vs. silent. However, information is available about reactions (Finneran et al., 2000, 2002, 2005). there were indications that these whales of toothed whales to noise pulses. Few However, the animals tolerated high were more likely to be moving away studies similar to the more extensive received levels of sound before when seen during airgun operations. baleen whale/seismic pulse work exhibiting aversive behaviors. Similarly, ship-based monitoring summarized above and (in more detail) Results for porpoises depend on studies of blue, fin, sei and minke in Appendix B of NSF’s EA have been species. The limited available data whales offshore of Newfoundland reported for toothed whales. However, suggest that harbor porpoises show (Orphan Basin and Laurentian Sub- there are recent systematic studies on stronger avoidance of seismic operations basin) found no more than small sperm whales (e.g., Gordon et al., 2006; than do Dall’s porpoises (Stone, 2003; differences in sighting rates and swim Madsen et al., 2006; Winsor and Mate, MacLean and Koski, 2005; Bain and directions during seismic versus non- 2006; Jochens et al., 2008; Miller et al., Williams, 2006; Stone and Tasker, seismic periods (Moulton et al., 2005, 2009). There is an increasing amount of 2006). Dall’s porpoises seem relatively 2006a,b). Castellote et al. (2010) information about responses of various tolerant of airgun operations (MacLean reported that singing fin whales in the odontocetes to seismic surveys based on and Koski, 2005; Bain and Williams, Mediterranean moved away from an monitoring studies (e.g., Stone, 2003; 2006), although they too have been operating airgun array. Smultea et al., 2004; Moulton and observed to avoid large arrays of Ship-based monitoring studies of Miller, 2005; Bain and Williams, 2006; operating airguns (Calambokidis and baleen whales (including blue, fin, sei, Holst et al., 2006; Stone and Tasker, Osmek, 1998; Bain and Williams, 2006). minke, and humpback whales) in the 2006; Potter et al., 2007; Hauser et al., This apparent difference in Northwest Atlantic found that, overall, 2008; Holst and Smultea, 2008; Weir, responsiveness of these two porpoise this group had lower sighting rates 2008; Barkaszi et al., 2009; Richardson species is consistent with their relative during seismic vs. non-seismic periods et al., 2009, Moulton and Holst, 2010). responsiveness to boat traffic and some (Moulton and Holst, 2010). Baleen Seismic operators and marine other acoustic sources (Richardson et whales as a group were also seen mammal observers on seismic vessels al., 1995; Southall et al., 2007). significantly farther from the vessel regularly see dolphins and other small Most studies of sperm whales exposed during seismic compared with non- toothed whales near operating airgun to airgun sounds indicate that the sperm seismic periods, and they were more arrays, but, in general, there is a whale shows considerable tolerance of often seen to be swimming away from tendency for most delphinids to show airgun pulses (e.g., Stone, 2003; the operating seismic vessel (Moulton some avoidance of operating seismic Moulton et al., 2005, 2006a; Stone and and Holst, 2010). Blue and minke vessels (e.g., Goold, 1996a,b,c; Tasker, 2006; Weir, 2008). In most cases whales were initially sighted Calambokidis and Osmek, 1998; Stone, the whales do not show strong significantly farther from the vessel 2003; Moulton and Miller, 2005; Holst avoidance, and they continue to call during seismic operations compared to et al., 2006; Stone and Tasker, 2006; (see Appendix B of NSF’s EA for a non-seismic periods; the same trend was Weir, 2008; Richardson et al., 2009; review). However, controlled exposure observed for fin whales (Moulton and Barkaszi et al., 2009, Moulton and experiments in the Gulf of Mexico Holst, 2010). Minke whales were most Holst, 2010). Some dolphins seem to be indicate that foraging behavior was often observed to be swimming away attracted to the seismic vessel and altered upon exposure to airgun sound from the vessel when seismic operations floats, and some ride the bow wave of (Jochens et al., 2008; Miller et al., 2009; were underway (Moulton and Holst, the seismic vessel even when large Tyack, 2009). 2010). arrays of airguns are firing (e.g., There are almost no specific data on Data on short-term reactions by Moulton and Miller, 2005). Nonetheless, the behavioral reactions of beaked cetaceans to impulsive noises are not small toothed whales more often tend to whales to seismic surveys. However, necessarily indicative of long-term or head away, or to maintain a somewhat some northern bottlenose whales biologically significant effects. It is not greater distance from the vessel, when a remained in the general area and known whether impulsive sounds affect large array of airguns is operating than continued to produce high-frequency reproductive rate or distribution and when it is silent (e.g., Stone and Tasker, clicks when exposed to sound pulses habitat use in subsequent days or years. 2006; Weir, 2008, Barry et al., 2010, from distant seismic surveys (Gosselin However, gray whales have continued to Moulton and Holst, 2010). In most and Lawson, 2004; Laurinolli and migrate annually along the west coast of cases, the avoidance radii for delphinids Cochrane, 2005; Simard et al., 2005). North America with substantial appear to be small, on the order of 1 km Most beaked whales tend to avoid increases in the population over recent (0.6 mi) or less, and some individuals approaching vessels of other types (e.g., years, despite intermittent seismic show no apparent avoidance. The Wursig et al., 1998). They may also dive

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for an extended period when be larger when airguns were operating mammals, TTS can last from minutes or approached by a vessel (e.g., Kasuya, (Calambokidis and Osmek, 1998). hours to (in cases of strong TTS) days. 1986), although it is uncertain how Previous telemetry work suggests that For sound exposures at or somewhat much longer such dives may be as avoidance and other behavioral above the TTS threshold, hearing compared to dives by undisturbed reactions may be stronger than evident sensitivity in both terrestrial and marine beaked whales, which also are often to date from visual studies (Thompson mammals recovers rapidly after quite long (Baird et al., 2006; Tyack et et al., 1998). exposure to the noise ends. Few data on al., 2006). Based on a single observation, sound levels and durations necessary to Hearing Impairment and Other Aguilar-Soto et al. (2006) suggested that elicit mild TTS have been obtained for Physical Effects foraging efficiency of Cuvier’s beaked marine mammals, and none of the whales may be reduced by close Temporary or permanent hearing published data concern TTS elicited by approach of vessels. In any event, it is impairment is a possibility when marine exposure to multiple pulses of sound. likely that most beaked whales would mammals are exposed to very strong Available data on TTS in marine also show strong avoidance of an sounds. Non-auditory physical effects mammals are summarized in Southall et approaching seismic vessel, although might also occur in marine mammals al. (2007). Table 1 (found earlier in this this has not been documented exposed to strong underwater sound. document and Table 1 in UAGI’s explicitly. In fact, Moulton and Holst Possible types of non-auditory physical application) presents the distances from (2010) reported 15 sightings of beaked effects or injuries that theoretically the Langseth’s 10-airgun array at which whales during seismic studies in the might occur in mammals close to a the received energy level (per pulse, Northwest Atlantic; seven of those strong sound source include stress, flat-weighted) would be expected to be sightings were made at times when at neurological effects, bubble formation, greater than or equal to 180 and 190 dB least one airgun was operating. There and other types of organ or tissue re 1 μPa (rms). As shown in the table, was little evidence to indicate that damage. It is possible that some marine these distances vary with depth. beaked whale behavior was affected by mammal species (i.e., beaked whales) Researchers have derived TTS airgun operations; sighting rates and may be especially susceptible to injury information for odontocetes from distances were similar during seismic and/or stranding when exposed to studies on the bottlenose dolphin and and non-seismic periods (Moulton and strong pulsed sounds. However, as beluga. For the one harbor porpoise Holst, 2010). However, no beaked whale discussed later in this document, there tested, the received level of airgun species are known to occur in the is no definitive evidence that any of sound that elicited onset of TTS was proposed project area. these effects occur even for marine lower (Lucke et al., 2009). If these Odontocete reactions to large arrays of mammals in close proximity to results from a single animal are airguns are variable and, at least for industrial sound sources, and beaked representative, it is inappropriate to delphinids and Dall’s porpoises, seem to whales do not occur in the proposed assume that onset of TTS occurs at be confined to a smaller radius than has activity area. similar received levels in all been observed for the more responsive Factors that influence the amount of odontocetes (cf. Southall et al., 2007). of the mysticetes, belugas, and harbor threshold shift include the amplitude, Some cetaceans apparently can incur porpoises (see Appendix B of NSF’s EA duration, frequency content, temporal TTS at considerably lower sound for more information). pattern, and energy distribution of noise exposures than are necessary to elicit Pinnipeds—Pinnipeds are not likely exposure. The magnitude of hearing TTS in the beluga or bottlenose dolphin. to show a strong avoidance reaction to threshold shift normally decreases over For baleen whales, there are no data, the airgun array. Pinnipeds generally time following cessation of the noise direct or indirect, on levels or properties seem to be less responsive to exposure exposure. The amount of threshold shift of sound that are required to induce to industrial sound than most cetaceans. just after exposure is called the initial TTS. The frequencies to which baleen Responses by pinnipeds to underwater threshold shift. If the threshold shift whales are most sensitive are assumed sound from some types of industrial eventually returns to zero (i.e., the to be lower than those to which activities such as seismic exploration threshold returns to the pre-exposure odontocetes are most sensitive, and appear to be temporary and localized value), it is called temporary threshold natural background noise levels at those (Harris et al., 2001; Reiser et al., 2009). shift (TTS) (Southall et al., 2007). low frequencies tend to be higher. As a Visual monitoring from seismic Researchers have studied TTS in certain result, auditory thresholds of baleen vessels has shown only slight (if any) captive odontocetes and pinnipeds whales within their frequency band of avoidance of airguns by pinnipeds, and exposed to strong sounds (reviewed in best hearing are believed to be higher only slight (if any) changes in behavior, Southall et al., 2007). However, there (less sensitive) than are those of see Appendix B(5) of NSF’s EA. In the has been no specific documentation of odontocetes at their best frequencies Beaufort Sea, some ringed seals avoided TTS let alone permanent hearing (Clark and Ellison, 2004), meaning that an area of 100 m (328 ft) to (at most) a damage, i.e., permanent threshold shift baleen whales require sounds to be few hundred meters around seismic (PTS), in free-ranging marine mammals louder (i.e., higher dB levels) than vessels, but many seals remained within exposed to sequences of airgun pulses odontocetes in the frequency ranges at 100–200 m (328–656 ft) of the trackline during realistic field conditions. The which each group hears the best. From as the operating airgun array passed by following subsections discuss in this, it is suspected that received levels (e.g., Harris et al., 2001; Moulton and somewhat more detail the possibilities causing TTS onset may also be higher in Lawson, 2002; Miller et al., 2005). of TTS, PTS, and non-auditory physical baleen whales (Southall et al., 2007). Ringed seal sightings averaged effects. Since current NMFS practice assumes somewhat farther away from the seismic Temporary Threshold Shift—TTS is the same thresholds for the onset of vessel when the airguns were operating the mildest form of hearing impairment hearing impairment in both odontocetes than when they were not, but the that can occur during exposure to a and mysticetes, NMFS’ onset of TTS difference was small (Moulton and strong sound (Kryter, 1985). While threshold is likely conservative for Lawson, 2002). Similarly, in Puget experiencing TTS, the hearing threshold mysticetes. For this proposed study, Sound, sighting distances for harbor rises, and a sound must be stronger in UAGI expects no cases of TTS given the seals and California sea lions tended to order to be heard. At least in terrestrial strong likelihood that baleen whales

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would avoid the approaching airguns close to airguns might incur PTS (e.g., (Southall et al., 2007) or any meaningful (or vessel) before being exposed to Richardson et al., 1995, p. 372ff; quantitative predictions of the numbers levels high enough for TTS to occur. Gedamke et al., 2008). Single or (if any) of marine mammals that might In pinnipeds, TTS thresholds occasional occurrences of mild TTS are be affected in those ways. Marine associated with exposure to brief pulses not indicative of permanent auditory mammals that show behavioral (single or multiple) of underwater sound damage, but repeated or (in some cases) avoidance of seismic vessels, including have not been measured. Initial single exposures to a level well above most baleen whales and some evidence from more prolonged (non- that causing TTS onset might elicit PTS. odontocetes, are especially unlikely to pulse) exposures suggested that some Relationships between TTS and PTS incur non-auditory physical effects. pinnipeds (harbor seals in particular) thresholds have not been studied in incur TTS at somewhat lower received marine mammals but are assumed to be Stranding and Mortality levels than do small odontocetes similar to those in humans and other Marine mammals close to underwater exposed for similar durations (Kastak et terrestrial mammals. PTS might occur at detonations of high explosives can be al., 1999, 2005; Ketten et al., 2001). The a received sound level at least several killed or severely injured, and the TTS threshold for pulsed sounds has dB above that inducing mild TTS if the auditory organs are especially been indirectly estimated as being a animal were exposed to strong sound susceptible to injury (Ketten et al., 1993; sound exposure level (SEL) of pulses with rapid rise time—see Ketten, 1995). However, explosives are approximately 171 dB re 1 μPa2·s Appendix B (6) of NSF’s EA. Based on no longer used for marine waters for (Southall et al., 2007) which would be data from terrestrial mammals, a commercial seismic surveys or (with equivalent to a single pulse with a precautionary assumption is that the rare exceptions) for seismic research; received level of approximately 181 to PTS threshold for impulse sounds (such they have been replaced entirely by 186 dB re 1 μPa (rms), or a series of as airgun pulses as received close to the airguns or related non-explosive pulse pulses for which the highest rms values source) is at least 6 dB higher than the generators. Airgun pulses are less are a few dB lower. Corresponding TTS threshold on a peak-pressure basis energetic and have slower rise times, values for California sea lions and and probably greater than 6 dB (Southall and there is no specific evidence that northern elephant seals are likely to be et al., 2007). they can cause serious injury, death, or higher (Kastak et al., 2005). Given the higher level of sound stranding even in the case of large NMFS has established acoustic necessary to cause PTS as compared airgun arrays. However, the association thresholds that identify the received with TTS, it is considerably less likely of strandings of beaked whales with sound levels above which hearing that PTS would occur. Baleen whales naval exercises involving mid-frequency impairment or other injury could generally avoid the immediate area active sonar and, in one case, a L–DEO potentially occur, which are 180 and around operating seismic vessels, as do seismic survey (Malakoff, 2002; Cox et 190 dB re 1 μPa (rms) for cetaceans and some other marine mammals. al., 2006), has raised the possibility that pinnipeds, respectively (NMFS 1995, Non-auditory Physiological Effects— beaked whales exposed to strong 2000). The established 180- and 190-dB Non-auditory physiological effects or ‘‘pulsed’’ sounds may be especially re 1 μPa (rms) criteria are the received injuries that theoretically might occur in susceptible to injury and/or behavioral levels above which, in the view of a marine mammals exposed to strong reactions that can lead to stranding (e.g., panel of bioacoustics specialists underwater sound include stress, Hildebrand, 2005; Southall et al., 2007). convened by NMFS before additional neurological effects, bubble formation, Appendix B (6) of NSF’s EA provides TTS measurements for marine mammals resonance, and other types of organ or additional details. became available, one could not be tissue damage (Cox et al., 2006; Southall Specific sound-related processes that certain that there would be no injurious et al., 2007). Studies examining such lead to strandings and mortality are not effects, auditory or otherwise, to marine effects are limited. However, resonance well documented, but may include: mammals. TTS is considered by NMFS effects (Gentry, 2002) and direct noise- (1) Swimming in avoidance of a to be a type of Level B (non-injurious) induced bubble formations (Crum et al., sound into shallow water; harassment. The 180- and 190-dB levels 2005) are implausible in the case of (2) A change in behavior (such as a are shutdown criteria applicable to exposure to an impulsive broadband change in diving behavior) that might cetaceans and pinnipeds, respectively, source like an airgun array. If seismic contribute to tissue damage, gas bubble as specified by NMFS (2000); these surveys disrupt diving patterns of deep- formation, hypoxia, cardiac arrhythmia, levels were used to establish the diving species, this might perhaps result hypertensive hemorrhage or other forms exclusion zones (EZs) described later in in bubble formation and a form of the of trauma; this document. bends, as speculated to occur in beaked (3) A physiological change, such as a Permanent Threshold Shift—When whales exposed to sonar. However, vestibular response leading to a PTS occurs, there is physical damage to there is no specific evidence of this behavioral change or stress-induced the sound receptors in the ear. In severe upon exposure to airgun pulses. hemorrhagic diathesis, leading in turn cases, there can be total or partial Additionally, no beaked whale species to tissue damage; and deafness, whereas in other cases, the occur in the proposed project area. (4) Tissue damage directly from sound animal has an impaired ability to hear In general, very little is known about exposure, such as through acoustically- sounds in specific frequency ranges the potential for seismic survey sounds mediated bubble formation and growth (Kryter, 1985). There is no specific (or other types of strong underwater or acoustic resonance of tissues. evidence that exposure to pulses of sounds) to cause non-auditory physical Some of these mechanisms are airgun sound can cause PTS in any effects in marine mammals. Such unlikely to apply in the case of impulse marine mammal (see Southall et al., effects, if they occur at all, would sounds. However, there are indications 2007), even with large arrays of airguns. presumably be limited to short distances that gas-bubble disease (analogous to However, given the possibility that and to activities that extend over a ‘‘the bends’’), induced in supersaturated mammals close to an airgun array might prolonged period. The available data do tissue by a behavioral response to incur at least mild TTS, there has been not allow identification of a specific acoustic exposure, could be a pathologic further speculation about the possibility exposure level above which non- mechanism for the strandings and that some individuals occurring very auditory effects can be expected mortality of some deep-diving cetaceans

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exposed to sonar. However, the anticipated during the proposed study Masking—Marine mammal evidence for this remains circumstantial because none occur in the proposed communications will not be masked and is associated with exposure to naval project area. appreciably by the MBES signals given mid-frequency sonar, not seismic the low duty cycle of the echosounder surveys (Cox et al., 2006; Southall et al., Potential Effects on Marine Mammals of and the brief period when an individual 2007). Other Acoustic Devices mammal is likely to be within its beam. Seismic pulses and mid-frequency (1) MBES Furthermore, in the case of baleen sonar signals are quite different, and whales, the MBES signals (12 kHz) do some mechanisms by which sonar UAGI intends to operate the not overlap with the predominant sounds have been hypothesized to affect Kongsberg EM 122 MBES from the frequencies in the calls, which would beaked whales are unlikely to apply to source vessel during the proposed avoid any significant masking. airgun pulses. Sounds produced by study. Sounds from the MBES are very Behavioral Responses—Behavioral airgun arrays are broadband impulses short pings, occurring for 2–15 ms once reactions of free-ranging marine with most of the energy below 1 kHz. every 5–20 s, depending on water depth. mammals to sonars, echosounders, and Typical military mid-frequency sonar Most of the energy in the sound pulses other sound sources appear to vary by emits non-impulse sounds at emitted by this MBES is at frequencies species and circumstance. Observed frequencies of 2–10 kHz, generally with near 12 kHz, and the maximum source reactions have included silencing and a relatively narrow bandwidth at any level is 242 dB re 1 μPa (rms). The beam dispersal by sperm whales (Watkins et one time. A further difference between is narrow (1–2°) in fore-aft extent and al., 1985), increased vocalizations and seismic surveys and naval exercises is wide (150°) in the cross-track extent. no dispersal by pilot whales (Rendell that naval exercises can involve sound Each ping consists of eight (in water and Gordon, 1999), and the previously- sources on more than one vessel. Thus, greater than 1,000 m [3,280 ft] deep) or mentioned beachings by beaked whales. it is not appropriate to assume that there four (in water less than 1,000 m [3,280 During exposure to a 21–25 kHz ‘‘whale- is a direct connection between the ft] deep) successive fan-shaped finding’’ sonar with a source level of effects of military sonar and seismic transmissions (segments) at different 215 dB re 1 μPa, gray whales reacted by surveys on marine mammals. However, cross-track angles. Any given mammal orienting slightly away from the source evidence that sonar signals can, in at depth near the trackline would be in and being deflected from their course by special circumstances, lead (at least the main beam for only one or two of approximately 200 m (656 ft) (Frankel, indirectly) to physical damage and the nine segments. Also, marine 2005). When a 38 kHz echosounder and mortality (e.g., Balcomb and Claridge, mammals that encounter the Kongsberg a 150 kHz ADCP were transmitting 2001; NOAA and USN, 2001; Jepson et EM 122 are unlikely to be subjected to during studies in the Eastern Tropical al., 2003; Ferna´ndez et al., 2004, 2005; repeated pulses because of the narrow Pacific, baleen whales showed no Hildebrand, 2005; Cox et al., 2006) fore-aft width of the beam and will significant responses, while spotted and suggests that caution is warranted when receive only limited amounts of pulse spinner dolphins were detected slightly dealing with exposure of marine energy because of the short pulses. more often and beaked whales less often mammals to any high-intensity Animals close to the ship (where the during visual surveys (Gerrodette and ‘‘pulsed’’ sound. beam is narrowest) are especially Pettis, 2005). There is no conclusive evidence of unlikely to be ensonified for more than Captive bottlenose dolphins and a cetacean strandings or deaths at sea as one 2–15 ms pulse (or two pulses if in beluga whale exhibited changes in a result of exposure to seismic surveys, the overlap area). Similarly, Kremser et behavior when exposed to 1 s tonal but a few cases of strandings in the al. (2005) noted that the probability of signals at frequencies similar to those general area where a seismic survey was a cetacean swimming through the area that will be emitted by the MBES used ongoing have led to speculation of exposure when a MBES emits a pulse by UAGI and L–DEO (the ship operator), and to shorter broadband pulsed signals. concerning a possible link between is small. The animal would have to pass seismic surveys and strandings. Behavioral changes typically involved the transducer at close range and be Suggestions that there was a link what appeared to be deliberate attempts swimming at speeds similar to the between seismic surveys and strandings to avoid the sound exposure (Schlundt vessel in order to receive the multiple of humpback whales in Brazil (Engel et et al., 2000; Finneran et al., 2002; pulses that might result in sufficient al., 2004) were not well founded (IAGC, Finneran and Schlundt, 2004). The exposure to cause TTS. 2004; IWC, 2007). In September 2002, relevance of those data to free-ranging there was a stranding of two Cuvier’s Navy sonars that have been linked to odontocetes is uncertain, and in any beaked whales in the Gulf of California, avoidance reactions and stranding of case, the test sounds were quite Mexico, when the L–DEO vessel R/V cetaceans: (1) Generally have longer different in duration as compared with Maurice Ewing was operating a 20 pulse duration than the Kongsberg EM those from a MBES. airgun (8,490 in3) array in the general 122; and (2) are often directed close to Very few data are available on the area. The link between the stranding horizontally versus more downward for reactions of pinnipeds to echosounder and the seismic surveys was the MBES. The area of possible sounds at frequencies similar to those inconclusive and not based on any influence of the MBES is much used during seismic operations. Hastie physical evidence (Hogarth, 2002; smaller—a narrow band below the and Janik (2007) conducted a series of Yoder, 2002). Nonetheless, the Gulf of source vessel. Also, the duration of behavioral response tests on two captive California incident, plus the beaked exposure for a given marine mammal gray seals to determine their reactions to whale strandings near naval exercises can be much longer for naval sonar. underwater operation of a 375 kHz involving use of mid-frequency sonar, During operation of this MBES for this multibeam imaging echosounder that suggests a need for caution in proposed seismic survey, the individual included significant signal components conducting seismic surveys in areas pulses will be very short, and a given down to 6 kHz. Results indicated that occupied by beaked whales until more mammal would not receive many of the the two seals reacted to the signal by is known about effects of seismic downward-directed pulses as the vessel significantly increasing their dive surveys on those species (Hildebrand, passes by. Possible effects of a MBES on durations. Because of the likely brevity 2005). No injuries of beaked whales are marine mammals are discussed next. of exposure to the MBES sounds,

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pinniped reactions are expected to be Behavioral Responses—Marine sound sources are discussed above. limited to startle or otherwise brief mammal behavioral reactions to other Responses to the ADCP are likely to be responses of no lasting consequences to pulsed sound sources are discussed similar to those for other sources if the animals. above, and responses to the SBP are received at the same levels. The signals Hearing Impairment and Other likely to be similar to those for other from the ADCP are weaker than those Physical Effects—Given recent stranding pulsed sources if received at the same from the echosounders and the airguns. events that have been associated with levels. However, the pulsed signals from Therefore, behavioral responses are not the operation of naval sonar, there is the SBP are considerably weaker than expected unless marine mammals are concern that mid-frequency sonar those from the MBES. Therefore, very close to the source. sounds can cause serious impacts to behavioral responses are not expected Hearing Impairment and Other marine mammals (see above). However, unless marine mammals are very close Physical Effects—Source levels of the the MBES proposed for use during to the source. ADCP are lower than those of the UAGI’s proposed seismic survey is quite Hearing Impairment and Other airguns, which are discussed above. It is different than sonar used for Navy Physical Effects—It is unlikely that the unlikely that the ADCP produces sound operations. Pulse duration of the MBES SBP produces pulse levels strong levels strong enough to cause TTS or is very short relative to the naval sonar. enough to cause hearing impairment or (especially) PTS or other physical Also, at any given location, an other physical injuries even in an injuries even in marine mammals that individual marine mammal would be in animal that is (briefly) in a position near are (briefly) in a position near the the beam of the MBES for much less the source. The SBP is usually operated source. time given the generally downward simultaneously with other higher-power The potential effects to marine orientation of the beam and its narrow acoustic sources, including airguns. mammals from the acoustic sources fore-aft beamwidth; Navy sonar often Many marine mammals are anticipated described in this section of the uses near-horizontally-directed sound. to move away in response to the document do not take into consideration Those factors would all reduce the approaching higher-power sources or the proposed monitoring and mitigation sound energy received from the MBES the vessel itself before the mammals measures described later in this document (see the ‘‘Proposed rather drastically relative to that from would be close enough for there to be Mitigation’’ and ‘‘Proposed Monitoring naval sonar. As noted by Burkhardt et any possibility of effects from the less and Reporting’’ sections), which, as al. (2008), cetaceans are very unlikely to intense sounds from the SBP. noted, are designed to ensure the least incur PTS from operation of scientific (3) ADCP practicable impact on affected marine sonars on a ship that is underway. UAGI intends to operate an ADCP mammal species and stocks. NMFS believes that the brief exposure during the proposed seismic survey. of marine mammals to one pulse, or Sounds from the ADCP are very short, Anticipated Effects on Habitat small numbers of signals, from the occurring every 0.65–1.4 ms. Most of the The proposed seismic survey is not MBES is not likely to result in the energy in the sound emitted is at high anticipated to have any permanent harassment of marine mammals. frequencies (approximately 75 kHz). impact on habitats used by the marine (2) SBP The ADCP produces sounds that are mammals in the proposed survey area, within the range of frequencies used by including the food sources they use (i.e., UAGI also intends to operate a SBP odontocetes that may occur in the fish and invertebrates). Additionally, no from the source vessel during the proposed project area; however, it is physical damage to any habitat is proposed survey. Sounds from the SBP outside the hearing range of mysticetes anticipated as a result of conducting the are very short pulses, occurring for 1– and at the extreme upper end of the proposed seismic survey. While it is 4 ms once every second. Most of the hearing range for pinnipeds. anticipated that the specified activity energy in the sound pulses emitted by Masking—Whereas the ADCP may result in marine mammals avoiding the SBP is at 3.5 kHz, and the beam is produces sounds within the frequency certain areas due to temporary directed downward. The SBP on the range used by odontocetes that may be ensonification, this impact to habitat is Langseth has a maximum source level of present in the proposed survey area, temporary and reversible and was μ 204 dB re 1 Pa. marine mammal communications are considered in further detail earlier in Kremser et al. (2005) noted that the not anticipated to be masked this document, as behavioral probability of a cetacean swimming appreciably by the signals. This is a modification. The main impact through the area of exposure when a consequence of the relatively low power associated with the proposed activity bottom profiler emits a pulse is small— output, low duty cycle, and brief period will be temporarily elevated noise levels even for a SBP more powerful than that when an individual mammal is likely to and the associated direct effects on on the Langseth—if the animal was in be within the area of potential effects. In marine mammals, previously discussed the area, it would have to pass the the case of mysticetes and pinnipeds, in this notice. This section discusses the transducer at close range in order to be the pulses do not overlap with the potential impacts of anthropogenic subjected to sound levels that could predominant frequencies in the calls, sound sources on common marine cause TTS. thus avoiding significant masking mammal prey in the proposed survey Masking—Marine mammal impacts. area (i.e., fish and invertebrates). communications will not be masked Behavioral Responses—When a 38- appreciably by the SBP signals given the kHz echosounder and a 150-kHz ADCP Effects on Fish directionality of the signal and the brief were transmitting during studies in the One reason for the adoption of airguns period when an individual mammal is Eastern Tropical Pacific, baleen whales as the standard energy source for marine likely to be within its beam. showed no significant responses, while seismic surveys is that, unlike Furthermore, in the case of most baleen spotted and spinner dolphins were explosives, they have not been whales, the SBP signals do not overlap detected slightly more often and beaked associated with large-scale fish kills. with the predominant frequencies in the whales less often during visual surveys However, existing information on the calls, which would avoid significant (Gerrodette and Pettis, 2005). Marine impacts of seismic surveys on marine masking. mammal behavioral reactions to other fish populations is limited (see

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Appendix C of NSF’s EA). There are on the number of individuals affected and arrays involved with the proposed three types of potential effects of and whether critical behaviors involving program, the pathological (mortality) exposure to seismic surveys: (1) sound (e.g., predator avoidance, prey zone for fish would be expected to be Pathological; (2) physiological; and (3) capture, orientation and navigation, within a few meters of the seismic behavioral. Pathological effects involve reproduction, etc.) are adversely source. Numerous other studies provide lethal and temporary or permanent sub- affected. examples of no fish mortality upon lethal injury. Physiological effects Little is known about the mechanisms exposure to seismic sources (Falk and involve temporary and permanent and characteristics of damage to fish Lawrence, 1973; Holliday et al., 1987; primary and secondary stress responses, that may be inflicted by exposure to La Bella et al., 1996; Santulli et al., such as changes in levels of enzymes seismic survey sounds. Few data have 1999; McCauley et al., 2000a,b, 2003; and proteins. Behavioral effects refer to been presented in the peer-reviewed Bjarti, 2002; Thomsen, 2002; Hassel et temporary and (if they occur) permanent scientific literature. As far as UAGI and al., 2003; Popper et al., 2005; Boeger et changes in exhibited behavior (e.g., NMFS know, there are only two papers al., 2006). startle and avoidance behavior). The with proper experimental methods, Some studies have reported, some three categories are interrelated in controls, and careful pathological equivocally, that mortality of fish, fish complex ways. For example, it is investigation implicating sounds eggs, or larvae can occur close to possible that certain physiological and produced by actual seismic survey seismic sources (Kostyuchenko, 1973; behavioral changes could potentially airguns in causing adverse anatomical Dalen and Knutsen, 1986; Booman et lead to an ultimate pathological effect effects. One such study indicated al., 1996; Dalen et al., 1996). Some of on individuals (i.e., mortality). anatomical damage, and the second the reports claimed seismic effects from The specific received sound levels at indicated TTS in fish hearing. The treatments quite different from actual which permanent adverse effects to fish anatomical case is McCauley et al. seismic survey sounds or even potentially could occur are little studied (2003), who found that exposure to reasonable surrogates. However, Payne and largely unknown. Furthermore, the airgun sound caused observable et al. (2009) reported no statistical available information on the impacts of anatomical damage to the auditory differences in mortality/morbidity seismic surveys on marine fish is from maculae of pink snapper (Pagrus between control and exposed groups of studies of individuals or portions of a auratus). This damage in the ears had capelin eggs or monkfish larvae. Saetre population; there have been no studies not been repaired in fish sacrificed and and Ona (1996) applied a ‘worst-case at the population scale. The studies of examined almost two months after scenario’ mathematical model to individual fish have often been on caged exposure. On the other hand, Popper et investigate the effects of seismic energy fish that were exposed to airgun pulses al. (2005) documented only TTS (as on fish eggs and larvae. They concluded in situations not representative of an determined by auditory brainstem that mortality rates caused by exposure actual seismic survey. Thus, available response testing) in two of three fish to seismic surveys are so low, as information provides limited insight on species from the Mackenzie River Delta. compared to natural mortality rates, that possible real-world effects at the ocean This study found that broad whitefish the impact of seismic surveying on or population scale. (Coregonus nasus) exposed to airgun recruitment to a fish stock must be Hastings and Popper (2005), Popper shots at a SEL of 177 dB re 1 μPa2•s regarded as insignificant. (2009), and Popper and Hastings showed no hearing loss. During both (2009a,b) provided recent critical studies, the repetitive exposure to sound Physiological Effects—Physiological reviews of the known effects of sound was greater than would have occurred effects refer to cellular and/or on fish. The following sections provide during a typical seismic survey. biochemical responses of fish to a general synopsis of the available However, the substantial low-frequency acoustic stress. Such stress potentially information on the effects of exposure to energy produced by the airguns [less could affect fish populations by seismic and other anthropogenic sound than 400 Hz in the study by McCauley increasing mortality or reducing as relevant to fish. The information et al. (2003) and less than reproductive success. Primary and comprises results from scientific studies approximately 200 Hz in Popper et al. secondary stress responses of fish after of varying degrees of rigor plus some (2005)] likely did not propagate to the exposure to seismic survey sound anecdotal information. Some of the data fish because the water in the study areas appear to be temporary in all studies sources may have serious shortcomings was very shallow (approximately 9 m done to date (Sverdrup et al., 1994; in methods, analysis, interpretation, and [29.5 ft] in the former case and less than Santulli et al., 1999; McCauley et al., reproducibility that must be considered 2 m [6.6 ft] in the latter). Water depth 2000a,b). The periods necessary for the when interpreting their results (see sets a lower limit on the lowest sound biochemical changes to return to normal Hastings and Popper, 2005). Potential frequency that will propagate (the are variable and depend on numerous adverse effects of the program’s sound ‘‘cutoff frequency’’) at about one-quarter aspects of the biology of the species and sources on marine fish are noted. wavelength (Urick, 1983; Rogers and of the sound stimulus (see Appendix C Pathological Effects—The potential Cox, 1988). of NSF’s EA). for pathological damage to hearing Wardle et al. (2001) suggested that in Behavioral Effects—Behavioral effects structures in fish depends on the energy water, acute injury and death of include changes in the distribution, level of the received sound and the organisms exposed to seismic energy migration, mating, and catchability of physiology and hearing capability of the depends primarily on two features of fish populations. Studies investigating species in question (see Appendix C of the sound source: (1) The received peak the possible effects of sound (including NSF’s EA). For a given sound to result pressure and (2) the time required for seismic survey sound) on fish behavior in hearing loss, the sound must exceed, the pressure to rise and decay. have been conducted on both uncaged by some substantial amount, the hearing Generally, as received pressure and caged individuals (e.g., Chapman threshold of the fish for that sound increases, the period for the pressure to and Hawkins, 1969; Pearson et al., 1992; (Popper, 2005). The consequences of rise and decay decreases, and the Santulli et al., 1999; Wardle et al., 2001; temporary or permanent hearing loss in chance of acute pathological effects Hassel et al., 2003). Typically, in these individual fish on a fish population are increases. According to Buchanan et al. studies, fish exhibited a sharp startle unknown; however, they likely depend (2004), for the types of seismic airguns response at the onset of a sound

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followed by habituation and a return to invertebrate populations and their acoustic stress. Such stress potentially normal behavior after the sound ceased. viability, including availability to could affect invertebrate populations by There is general concern about fisheries. increasing mortality or reducing potential adverse effects of seismic Literature reviews of the effects of reproductive success. Primary and operations on fisheries, namely a seismic and other underwater sound on secondary stress responses (i.e., changes potential reduction in the ‘‘catchability’’ invertebrates were provided by in haemolymph levels of enzymes, of fish involved in fisheries. Although Moriyasu et al. (2004) and Payne et al. proteins, etc.) of crustaceans have been reduced catch rates have been observed (2008). The following sections provide a noted several days or months after in some marine fisheries during seismic synopsis of available information on the exposure to seismic survey sounds testing, in a number of cases the effects of exposure to seismic survey (Payne et al., 2007). The periods findings are confounded by other sound on species of decapod necessary for these biochemical changes sources of disturbance (Dalen and crustaceans and cephalopods, the two to return to normal are variable and Raknes, 1985; Dalen and Knutsen, 1986; taxonomic groups of invertebrates on depend on numerous aspects of the Lokkeborg, 1991; Skalski et al., 1992; which most such studies have been biology of the species and of the sound Engas et al., 1996). In other airgun conducted. The available information is stimulus. experiments, there was no change in from studies with variable degrees of Behavioral Effects—There is catch per unit effort of fish when airgun scientific soundness and from anecdotal increasing interest in assessing the pulses were emitted, particularly in the information. A more detailed review of possible direct and indirect effects of immediate vicinity of the seismic survey the literature on the effects of seismic seismic and other sounds on (Pickett et al., 1994; La Bella et al., survey sound on invertebrates is invertebrate behavior, particularly in 1996). For some species, reductions in provided in Appendix D of NSF’s EA. relation to the consequences for catch may have resulted from a change Pathological Effects—In water, lethal fisheries. Changes in behavior could in behavior of the fish, e.g., a change in and sub-lethal injury to organisms potentially affect such aspects as vertical or horizontal distribution, as exposed to seismic survey sound reproductive success, distribution, reported in Slotte et al. (2004). appears to depend on at least two susceptibility to predation, and In general, any adverse effects on fish features of the sound source: (1) The catchability by fisheries. Studies behavior or fisheries attributable to received peak pressure; and (2) the time investigating the possible behavioral seismic testing may depend on the required for the pressure to rise and effects of exposure to seismic survey species in question and the nature of the decay. Generally, as received pressure sound on crustaceans and cephalopods fishery (season, duration, fishing increases, the period for the pressure to have been conducted on both uncaged method). They may also depend on the rise and decay decreases, and the and caged animals. In some cases, age of the fish, its motivational state, its chance of acute pathological effects invertebrates exhibited startle responses size, and numerous other factors that are increases. For the type of airgun array (e.g., squid in McCauley et al., 2000a,b). difficult, if not impossible, to quantify at planned for the proposed program, the In other cases, no behavioral impacts this point, given such limited data on pathological (mortality) zone for were noted (e.g., crustaceans in effects of airguns on fish, particularly crustaceans and cephalopods is Christian et al., 2003, 2004; DFO 2004). under realistic at-sea conditions. expected to be within a few meters of There have been anecdotal reports of the seismic source, at most; however, Anticipated Effects on Invertebrates reduced catch rates of shrimp shortly very few specific data are available on after exposure to seismic surveys; The existing body of information on levels of seismic signals that might however, other studies have not the impacts of seismic survey sound on damage these animals. This premise is observed any significant changes in marine invertebrates is very limited. based on the peak pressure and rise/ shrimp catch rate (Andriguetto-Filho et However, there is some unpublished decay time characteristics of seismic al., 2005). Similarly, Parry and Gason and very limited evidence of the airgun arrays currently in use around (2006) did not find any evidence that potential for adverse effects on the world. lobster catch rates were affected by invertebrates, thereby justifying further Some studies have suggested that seismic surveys. Any adverse effects on discussion and analysis of this issue. seismic survey sound has a limited crustacean and cephalopod behavior or The three types of potential effects of pathological impact on early fisheries attributable to seismic survey exposure to seismic surveys on marine developmental stages of crustaceans sound depend on the species in invertebrates are pathological, (Pearson et al., 1994; Christian et al., question and the nature of the fishery physiological, and behavioral. Based on 2003; DFO, 2004). However, the impacts (season, duration, fishing method). the physical structure of their sensory appear to be either temporary or In conclusion, NMFS has organs, marine invertebrates appear to insignificant compared to what occurs preliminarily determined that UAGI’s be specialized to respond to particle under natural conditions. Controlled proposed marine seismic survey is not displacement components of an field experiments on adult crustaceans expected to have any habitat-related impinging sound field and not to the (Christian et al., 2003, 2004; DFO, 2004) effects that could cause significant or pressure component (Popper et al., and adult cephalopods (McCauley et al., long-term consequences for individual 2001; see also Appendix D of NSF’s EA). 2000a,b) exposed to seismic survey marine mammals or on the food sources The only information available on the sound have not resulted in any that they utilize. impacts of seismic surveys on marine significant pathological impacts on the invertebrates involves studies of animals. It has been suggested that Proposed Mitigation individuals; there have been no studies exposure to commercial seismic survey In order to issue an incidental take at the population scale. Thus, available activities has injured giant squid authorization (ITA) under section information provides limited insight on (Guerra et al., 2004), but the article 101(a)(5)(D) of the MMPA, NMFS must, possible real-world effects at the provides little evidence to support this where applicable, set forth the regional or ocean scale. The most claim. permissible methods of taking pursuant important aspect of potential impacts Physiological Effects—Physiological to such activity, and other means of concerns how exposure to seismic effects refer mainly to biochemical effecting the least practicable impact on survey sound ultimately affects responses by marine invertebrates to such species or stock and its habitat,

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paying particular attention to rookeries, airgun array and a single airgun at mysticetes; no large odontocetes, such mating grounds, and areas of similar shallow, intermediate, and deep water as sperm whales, or beaked whales significance, and on the availability of depths. The 180- and 190-dB levels are occur in the proposed survey area). such species or stock for taking for shut-down criteria applicable to The airgun array will be ramped up subsistence uses (where relevant). cetaceans and pinnipeds, respectively, gradually after the marine mammal has UAGI and L–DEO have based the as specified by NMFS (2000); these cleared the EZ (see Ramp-up proposed mitigation measures described levels were used to establish the EZs. Procedures). herein, to be implemented for the For the 10-airgun array, the 180-dB Shut-Down Procedures proposed seismic survey, on the radius for each of the three water depth following: categories is as follows: 425 m (0.26 mi) UAGI and L–DEO will shut down the (1) Protocols used during previous in deep water; 1,400 m (0.87 mi) in operating airgun(s) if a marine mammal L–DEO seismic research cruises as intermediate water; and 1,870 m (1.16 is seen within or approaching the EZ for approved by NMFS; and mi) in shallow water. For the 10-airgun the single airgun. A shut-down shall be (2) Recommended best practices in array, the 190-dB radius for each of the implemented: Richardson et al. (1995), Pierson et al. three water depth categories is as (1) If an animal enters the EZ of the (1998), and Weir and Dolman (2007). follows: 130 m (426.5 ft) in deep water; single airgun after a power-down has To reduce the potential for 130 m (426.5 ft) in intermediate water; been initiated; or disturbance from acoustic stimuli and 190 m (623.4 ft) in shallow water. (2) If an animal is initially seen within associated with the proposed activities, If the protected species visual observer the EZ of the single airgun when more UAGI and/or its designees has proposed (PSVO) detects marine mammal(s) than one airgun (typically the full to implement the following mitigation within or about to enter the appropriate airgun array) is operating. measures for marine mammals: EZ, the airguns will be powered down UAGI and L–DEO shall not resume (1) Proposed exclusion zones; (or shut down if necessary) immediately airgun activity until the marine mammal (2) Power-down procedures; (described next). has cleared the EZ or until the PSVO is (3) Shut-down procedures; and confident that the animal has left the (4) Ramp-up procedures. Power-Down Procedures vicinity of the vessel. Criteria for judging that the animal has cleared the Planning Phase A power-down involves decreasing the number of airguns in use such that EZ will be as described in the preceding Prior to submitting a final MMPA ITA the radius of the 180 dB (or 190 dB) section regarding a power-down. request to NMFS, NSF works with the zone is decreased to the extent that Ramp-Up Procedures scientists that propose studies to marine mammals are no longer in or determine when to conduct the research about to enter the EZ. A power-down of UAGI and L–DEO shall follow a ramp- study. Dr. Coakley worked with L–DEO the airgun array can also occur when the up procedure when the airgun array and NSF to identify potential time vessel is moving from one seismic line begins operating after a specified period periods to carry out the proposed to another. During a power-down for without airgun operations or when a survey, taking into consideration key mitigation, UAGI and L–DEO will power-down has exceeded that period. factors such as environmental operate one airgun. The continued UAGI proposes that, for the present conditions (i.e., ice conditions, the operation of one airgun is intended to cruise, this period would be seasonal presence of marine mammals alert marine mammals to the presence of approximately 8 min. L–DEO has used and sea birds), weather conditions, and the seismic vessel in the area. In similar periods (approximately 8 to 10 equipment. The project’s proposed contrast, a shut-down occurs when the min) during previous L–DEO surveys. timeframe avoids the eastward (spring) Langseth suspends all airgun activity. Ramp-up will begin with the smallest bowhead migration but overlaps with If the PSVO detects a marine mammal airgun in the array (40 in3). Airguns will that of the westward fall migration and outside the EZ, but it is likely to enter be added in a sequence such that the the subsistence bowhead hunt along the the EZ, the airguns will be powered- source level of the array will increase in north shore of Alaska near Barrow. To down before the animal is within the steps not exceeding 6 dB per 5 min avoid disturbance, the seismic survey applicable EZ (dependent upon period over a total duration of has been scheduled to depart from species). Likewise, if a marine mammal approximately 15–20 min. During ramp- Dutch Harbor in early September and is already within the EZ when first up, the PSVOs will monitor the EZ, and remain at least 200 km (124 mi) from detected, UAGI and L–DEO will power- if marine mammals are sighted, UAGI Barrow during transit to and from the down the airguns immediately. During a and L–DEO will implement a power- survey area, which is approximately power-down of the airgun array, USGS down or shut-down as though the full 250–800 km (155–497 mi) northwest of will also operate the 40 in3 airgun. If a airgun array were operational. Barrow. Also, to reduce potential marine mammal is detected within or If the complete EZ has not been effects, the size of the energy source was near the smaller EZ around that single visible for at least 30 min prior to the reduced from the Langseth’s 36-airgun, airgun (Table 1), UAGI and L–DEO will start of operations in either daylight or 6600-in3 array to a 10-airgun, 1830-in3 shut-down the airgun (see next section). nighttime, ramp-up shall not commence array. Following a power-down, airgun unless at least one airgun (40 in3 or activity will not resume until the marine similar) has been operating during the Proposed Exclusion Zones mammal has cleared the EZ. UAGI and interruption of seismic survey Received sound levels for the 10- L–DEO will consider the animal to have operations. Given these provisions, it is airgun array have been predicted by cleared the EZ if: likely that the airgun array will not be MAI in relation to distance and • A PSVO has visually observed the ramped-up from a complete shut-down direction from the airguns, and received animal leave the EZ, or at night or in thick fog, because the sound levels for a single 40-in3 • A PSVO has not sighted the animal outer part of the safety zone for that mitigation airgun have been predicted within the EZ for 15 min for species array will not be visible during those by L–DEO. Table 1 shows the distances with shorter dive durations (i.e., small conditions. If one airgun has operated at which three rms sound levels are odontocetes or pinnipeds), or 30 min for during a power-down period, ramp-up expected to be received from the 10- species with longer dive durations (i.e., to full power will be permissible at

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night or in poor visibility, on the the proposed mitigation measures that a typical daytime cruise would have assumption that marine mammals will require real-time monitoring and to scheduled two PSVOs on duty from the be alerted to the approaching seismic satisfy the anticipated monitoring observation tower, and a third PSO on vessel by the sounds from the single requirements of the IHA (if issued). PAM. Other crew will also be instructed airgun and could move away. UAGI and UAGI’s proposed Monitoring Plan is to assist in detecting marine mammals L–DEO shall not initiate a ramp-up of described next. UAGI understands that and implementing mitigation the airguns if a marine mammal is this monitoring plan will be subject to requirements (if practical). Before the sighted within or near the applicable review by NMFS (as well as the public), start of the seismic survey, the crew will EZs during the day or night. and that refinements may be required. be given additional instruction on how The monitoring work described here has to do so. Mitigation Conclusions been planned as a self-contained project The Langseth is a suitable platform for NMFS has carefully evaluated the independent of any other related marine mammal observations. When applicant’s proposed mitigation monitoring projects that may be stationed on the observation platform, measures and considered a range of occurring simultaneously in the same the eye level will be approximately 21.5 other measures in the context of regions. UAGI is prepared to discuss m (70.5 ft) above sea level, and the ensuring that NMFS prescribes the coordination of its monitoring program PSVO will have a good view around the means of effecting the least practicable with any related work that might be entire vessel. During daytime, the impact on the affected marine mammal done by other groups insofar as this is PSVOs will scan the area around the species and stocks and their habitat. Our practical and desirable. vessel systematically with reticle evaluation of potential measures binoculars (e.g., 7 x 50 Fujinon), Big-eye Vessel-Based Visual Monitoring included consideration of the following binoculars (25 x 150), and with the factors in relation to one another: PSVOs will be based aboard the naked eye. During darkness, night • The manner in which, and the seismic source vessel and will watch for vision devices (NVDs) will be available degree to which, the successful marine mammals near the vessel during (ITT F500 Series Generation 3 implementation of the measure is daytime airgun operations and during binocular-image intensifier or expected to minimize adverse impacts any ramp-ups at night. PSVOs will also equivalent), when required. Laser range- to marine mammals; watch for marine mammals near the finding binoculars (Leica LRF 1200 laser • The proven or likely efficacy of the seismic vessel for at least 30 min prior rangefinder or equivalent) will be specific measure to minimize adverse to the start of airgun operations after an available to assist with distance impacts as planned; and extended shut-down (as described in the estimation. Those are useful in training • The practicability of the measure ‘‘Proposed Mitigation’’ section earlier in observers to estimate distances visually, for applicant implementation. this document). PSVOs will conduct but are generally not useful in Based on our evaluation of the observations during daytime periods measuring distances to animals directly; applicant’s proposed measures, NMFS when the seismic system is not that is done primarily with the reticles has preliminarily determined that the operating for comparison of sighting in the binoculars. mitigation measures proposed above rates and behavior with and without When marine mammals are detected provide the means of effecting the least airgun operations and between within or about to enter the designated practicable impact on marine mammal acquisition periods. Based on PSVO EZ, the airguns will immediately be species or stocks and their habitat, observations, the airguns will be powered-down or shut-down if paying particular attention to rookeries, powered-down or shut-down when necessary. The PSO(s) will continue to mating grounds, and areas of similar marine mammals are observed within or maintain watch to determine when the significance. Proposed measures to about to enter a designated EZ. animal(s) are outside the EZ by visual ensure availability of such species or During seismic operations in the confirmation. Airgun operations will stock for taking for certain subsistence Arctic Ocean, at least five PSOs will be not resume until the animal is uses is discussed later in this document based aboard the Langseth. L–DEO will confirmed to have left the EZ, or if not (see ‘‘Impact on Availability of Affected appoint the PSOs with NMFS’ observed after 15 min for species with Species or Stock for Taking for concurrence. Observations will take shorter dive durations (small Subsistence Uses’’ section). place during ongoing daytime odontocetes and pinnipeds) or 30 min operations and nighttime ramp-ups of for species with longer dive durations Proposed Monitoring and Reporting the airguns. During the majority of (mysticetes). In order to issue an ITA for an seismic operations, two PSVOs will be activity, section 101(a)(5)(A) of the on duty from the observation tower to Passive Acoustic Monitoring (PAM) MMPA states that NMFS must, where monitor marine mammals near the PAM will complement the visual applicable, set forth ‘‘requirements seismic vessel. Use of two simultaneous monitoring program, when practicable. pertaining to the monitoring and PSVOs will increase the effectiveness of Visual monitoring typically is not reporting of such taking.’’ The MMPA detecting animals near the source effective during periods of poor implementing regulations at 50 CFR vessel. However, during meal times and visibility or at night, and even with 216.104 (a)(13) indicate that requests for bathroom breaks, it is sometimes good visibility, is unable to detect ITAs must include the suggested means difficult to have two PSVOs on effort, marine mammals when they are below of accomplishing the necessary but at least one PSVO will be on duty. the surface or beyond visual range. monitoring and reporting that will result PSVO(s) will be on duty in shifts of Besides the three PSVOs, an in increased knowledge of the species duration no longer than 4 hr. additional Protected Species Acoustic and of the level of taking or impacts on Two PSVOs will also be on visual Observer (PSAO) with primary populations of marine mammals that are watch during all nighttime ramp-ups of responsibility for PAM will also be expected to be present in the proposed the seismic airguns. A third PSO will aboard the vessel. UAGI and L–DEO can action area. monitor the passive acoustic monitoring use acoustic monitoring in addition to UAGI proposes to sponsor marine (PAM) equipment 24 hours a day to visual observations to improve mammal monitoring during the detect vocalizing marine mammals detection, identification, and proposed project, in order to implement present in the action area. In summary, localization of marine mammals. The

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acoustic monitoring will serve to alert All PSVOs are expected to rotate entered into an electronic database. The visual observers (if on duty) when through the PAM position, although the accuracy of the data entry will be vocalizing marine mammals are most experienced with acoustics will be verified by computerized data validity detected. It is only useful when marine on PAM duty more frequently. checks as the data are entered and by mammals call, but it can be effective When a vocalization is detected while subsequent manual checking of the either by day or by night and does not visual observations are in progress, the database. These procedures will allow depend on good visibility. It will be PSAO will contact the PSVO initial summaries of data to be prepared monitored in real time so that the immediately, to alert him/her to the during and shortly after the field PSVOs can be advised when animals are presence of marine mammals (if they program and will facilitate transfer of detected acoustically. When bearings have not already been seen), and to the data to statistical, graphical, and (primary and mirror-image) to calling allow a power-down or shut-down to be other programs for further processing animal(s) are determined, the bearings initiated, if required. The information and archiving. will be relayed to the visual observer to regarding the call will be entered into a Results from the vessel-based help him/her sight the calling animal(s). database. Data entry will include an observations will provide: The PAM system consists of hardware acoustic encounter identification 1. The basis for real-time mitigation (i.e., hydrophones) and software. The number, whether it was linked with a (airgun power-down or shut-down). ‘‘wet end’’ of the system consists of a visual sighting, date, time when first 2. Information needed to estimate the towed hydrophone array that is and last heard and whenever any number of marine mammals potentially connected to the vessel by a tow cable. additional information was recorded, taken by harassment, which must be The array will be deployed from a position and water depth when first reported to NMFS. winch located on the back deck. A deck detected, bearing if determinable, 3. Data on the occurrence, cable will connect from the winch to the species or species group (e.g., distribution, and activities of marine main computer laboratory where the unidentified dolphin, sperm whale), mammals in the area where the seismic acoustic station and signal conditioning types and nature of sounds heard (e.g., study is conducted. and processing system will be located. clicks, continuous, sporadic, whistles, 4. Information to compare the The digitized signal and PAM system is creaks, burst pulses, strength of signal, distance and distribution of marine monitored by PSAOs at a station in the etc.), and any other notable information. mammals relative to the source vessel at main laboratory. The hydrophone array The acoustic detection can also be times with and without seismic activity. is typically towed at depths of less than recorded for further analysis. 5. Data on the behavior and 20 m (66 ft). movement patterns of marine mammals Ideally, the PSAO will monitor the PSVO Data and Documentation seen at times with and without seismic towed hydrophones 24 hr per day at the PSVOs will record data to estimate activity. seismic survey area during airgun the numbers of marine mammals UAGI will submit a report to NMFS operations and during most periods exposed to various received sound and NSF within 90 days after the end of when the Langseth is underway while levels and to document apparent the cruise. The report will describe the the airguns are not operating. However, disturbance reactions or lack thereof. operations that were conducted and PAM may not be possible if damage Data will be used to estimate numbers sightings of marine mammals near the occurs to both the primary and back-up of animals potentially ‘taken’ by operations. The report will provide full hydrophone arrays during operations. harassment (as defined in the MMPA). documentation of methods, results, and The primary PAM streamer on the They will also provide information interpretation pertaining to all Langseth is a digital hydrophone needed to order a power-down or shut- monitoring. The 90-day report will streamer. Should the digital streamer down of the airguns when a marine summarize the dates and locations of fail, back-up systems should include an mammal is within or near the EZ. seismic operations and all marine analog spare streamer and a hull- Observations will also be made during mammal sightings (dates, times, mounted hydrophone. Every effort daytime periods when the Langseth is locations, activities, associated seismic would be made to have a working PAM underway without seismic operations. survey activities). The report will also system during the cruise. In the unlikely When a sighting is made, the include estimates of the number and event that all three of these systems following information about the sighting nature of exposures that could result in were to fail, UAGI would continue will be recorded: ‘‘takes’’ of marine mammals by science acquisition with the visual- 1. Species, group size, age/size/sex harassment or in other ways. based observer program. The PAM categories (if determinable), behavior In the unanticipated event that the system is a supplementary enhancement when first sighted and after initial specified activity clearly causes the take to the visual monitoring program. If sighting, heading (if consistent), bearing of a marine mammal in a manner weather conditions were to prevent the and distance from seismic vessel, prohibited by the IHA (if issued), such use of PAM, then conditions would also sighting cue, apparent reaction to the as an injury (Level A harassment), likely prevent the use of the airgun airguns or vessel (e.g., none, avoidance, serious injury or mortality (e.g., ship- array. approach, paralleling, etc.), and strike, gear interaction, and/or One PSAO will monitor the acoustic behavioral pace. entanglement), UAGI and L–DEO will detection system at any one time, by 2. Time, location, heading, speed, immediately cease the specified listening to the signals from two activity of the vessel, sea state, activities and immediately report the channels via headphones and/or visibility, and sun glare. incident to the Chief of the Permits, speakers and watching the real-time The data listed under (2) will also be Conservation, and Education Division, spectrographic display for frequency recorded at the start and end of each Office of Protected Resources, NMFS, ranges produced by marine mammals. observation watch and during a watch and the Alaska Regional Stranding PSAOs monitoring the acoustical data whenever there is a change in one or Coordinators. The report must include will be on shift for 1–6 hours at a time. more of the variables. the following information: Besides the PSVO, an additional PSAO All observations and power-downs or • Time, date, and location (latitude/ with primary responsibility for PAM shut-downs will be recorded in a longitude) of the incident; will also be aboard the source vessel. standardized format. Data will be • Name and type of vessel involved;

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• Vessel’s speed during and leading Estimated Take by Incidental marine mammals are expected to exhibit up to the incident; Harassment no more than short-term and • Description of the incident; Except with respect to certain inconsequential responses to the MBES, • Status of all sound source use in the activities not pertinent here, the MMPA SBP, and ADCP given their 24 hours preceding the incident; defines ‘‘harassment’’ as: ‘‘any act of characteristics (e.g., narrow, downward- • Water depth; pursuit, torment, or annoyance which (i) directed beam) and other considerations • Environmental conditions (e.g., Has the potential to injure a marine described previously. Therefore, UAGI provides no additional allowance for wind speed and direction, Beaufort sea mammal or marine mammal stock in the animals that could be affected by sound state, cloud cover, and visibility); wild [Level A harassment]; or (ii) has • the potential to disturb a marine sources other than airguns. Description of all marine mammal UAGI calculated densities using data mammal or marine mammal stock in the observations in the 24 hours preceding from the Chukchi Sea for the fall in wild by causing disruption of behavioral the incident; depth strata 35–50 m (115–164 ft), 51– • patterns, including, but not limited to, Species identification or 200 m (167–656 ft), and greater than 200 migration, breathing, nursing, breeding, description of the animal(s) involved; m (656 ft), mean group sizes from the • Fate of the animal(s); and feeding, or sheltering [Level B Beaufort Whale Aerial Survey Project • Photographs or video footage of the harassment].’’ Only take by Level B (BWASP) database, and values for animal(s) (if equipment is available). harassment is anticipated and proposed trackline detection probability bias and to be authorized as a result of the Activities will not resume until NMFS availability bias, f(0) and g(0), from proposed marine seismic survey in the Harwood et al. (1996) for belugas, is able to review the circumstances of Arctic Ocean. Acoustic stimuli (i.e., the prohibited take. NMFS will work Thomas et al. (2002) for bowhead increased underwater sound) generated whales, and Forney and Barlow (1998) with UAGI to determine what is during the operation of the seismic necessary to minimize the likelihood of for gray whales. Based on the lack of airgun array may have the potential to any beluga whale sightings and very low further prohibited take and ensure cause marine mammals in the survey MMPA compliance. UAGI may not densities of bowheads (0.0003–0.0044/ area to be exposed to sounds at or 2 resume their activities until notified by km ) and gray whales (0.0026–0.0042/ greater than 160 dB or cause temporary, km 2) during non-seismic periods of NMFS via letter, e-mail, or telephone. short-term changes in behavior. NMFS In the event that UAGI discovers an industry vessel operations in the also assumes that marine mammals Chukchi Sea in September–October injured or dead marine mammal, and exposed to levels exceeding 160 dB re 2006–2008 (Haley et al. 2010), and the the lead PSO determines that the cause μ 1 Pa (rms) may experience Level B lack of beluga, bowhead, or gray whale of the injury or death is unknown and harassment. The use of the ADCP is not sightings during arctic cruises by the the death is relatively recent (i.e., in less anticipated to result in the take of low- Healy in August–September 2005 or than a moderate state of decomposition frequency cetaceans or pinnipeds, as the July–August 2006 (Haley 2006; Haley as described in the next paragraph), frequency for this device is outside of or and Ireland 2006), the calculated UAGI will immediately report the at the extreme upper end of the hearing densities are possibly overestimates. incident to the Chief of the Permits, ranges of these species. There is no Accordingly, they were reduced by an Conservation, and Education Division, evidence that the planned activities order of magnitude. Densities were Office of Protected Resources, NMFS, could result in injury, serious injury, or calculated for depths greater than 200 m and the NMFS Alaska Stranding Hotline mortality within the specified (656 ft) and less than 200 m (656 ft); in and/or by e-mail to the Alaska Regional geographic area for which UAGI seeks the latter case, the densities were effort- Stranding Coordinators. The report must the IHA. The proposed mitigation and weighted averages of the 35–50 m (115– include the same information identified monitoring measures will minimize any 164 ft) and 51–200 m (167–656 ft) in the paragraph above. Activities may potential risk for injury, serious injury, densities. continue while NMFS reviews the or mortality. There is evidence of the occasional circumstances of the incident. NMFS The following sections describe occurrence of humpback, minke, fin, will work with UAGI to determine UAGI’s methods to estimate take by and killer whales in the northern whether modifications in the activities incidental harassment and present the Chukchi Sea, but because they occur so are appropriate. applicant’s estimates of the numbers of infrequently in the Chukchi Sea, little to In the event that UAGI discovers an marine mammals that could be affected no data are available for the calculation injured or dead marine mammal, and during the proposed seismic program. of densities. Minimal densities have the lead PSO determines that the injury The estimates are based on a therefore been assigned to these species or death is not associated with or related consideration of the number of marine to allow for chance encounters. to the activities authorized in the IHA mammals that could be disturbed Four species of pinnipeds under (e.g., previously wounded animal, appreciably by operations with the 10- NMFS jurisdiction could be carcass with moderate to advanced airgun array to be used during encountered in the proposed seismic decomposition, or scavenger damage), approximately 5,500 km (3,417.5 mi) of survey area: ringed seal, bearded seal, UAGI will report the incident to the survey lines in the Arctic Ocean. ribbon seal, and spotted seal. Bengtson Chief of the Permits, Conservation, and The anticipated radii of influence of et al. (2005) reported ringed and Education Division, Office of Protected the MBES, SBP, and ADCP are less than bearded seal densities in nearshore fast Resources, NMFS, and the NMFS those for the airgun array. UAGI ice and pack ice and offshore pack ice Alaska Stranding Hotline and/or by e- assumes that, during simultaneous based on aerial surveys in May–June mail to the Alaska Regional Stranding operations of the airgun array and the 1999 and May 2000; ringed seal but not Coordinators, within 24 hours of the other sources, any marine mammals bearded seal densities were corrected discovery. UAGI will provide close enough to be affected by the for haulout behavior. UAGI used photographs or video footage (if MBES, SBP, and ADCP would already densities from the offshore stratum available) or other documentation of the be affected by the airguns. However, (12P). Bearded seal densities were used stranded animal sighting to NMFS and whether or not the airguns are operating for water depths less than 200 m (656 the Marine Mammal Stranding Network. simultaneously with the other sources, ft) and were assumed to be zero in water

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depths greater than 200 m (656 ft) based on the ratio of the estimated representativeness of the data and because they are predominantly benthic Chukchi populations of the two species: assumptions used in the calculations. feeders. The fall densities of ringed seals 8% of the Alaskan population of spotted Because few data were available for the in the open water of the offshore survey seals is present in the Chukchi Sea survey area, UAGI calculated densities area have been estimated as 1/10 of the during the summer and fall (Rugh et al., based on densities observed in adjacent spring pack ice densities because ringed 1997); the Alaskan population of areas of the northern Chukchi Sea, seals are strongly associated with sea ice spotted seals is 59,214 (Allen and adjusted downward by various assumed and begin to reoccupy nearshore fast ice Angliss, 2010); and the population of factors (see above and UAGI’s areas as it forms in the fall. The ringed seals in the Alaskan Chukchi Sea application). For species seen only resulting densities (.081/km 2 in 1999 is greater than 208,000 (Bengtson et al., rarely in the northern Chukchi Sea, and .023/km 2 in 2000) are similar to 2005). The ribbon seal density used is UAGI assigned low densities. It is not ringed seal density estimates (0.016/ based on two ribbon seal sightings km 2 to 0.069/km 2) from industry vessel reported during industry vessel known how closely the densities that operations during summer 2006–2008 operations in the Chukchi Sea in 2006– were used reflect the actual densities (Haley et al., 2010). 2008 (Haley et al., 2010). that will be encountered; however, the Little information is available on Table 2 in this document (and Table approach used here is believed to be the spotted seal or ribbon seal densities in 3 in UAGI’s application) provides the best available at this time. The offshore areas of the Chukchi Sea. estimated densities of marine mammals estimated numbers of individuals Spotted seal density in the summer was expected to occur in the proposed potentially exposed are presented below estimated by multiplying the ringed seal survey area. As noted previously, there based on the 160-dB re 1 μParms density by 0.02. This calculation was is some uncertainty about the criterion for all marine mammals.

TABLE 2—EXPECTED DENSITIES OF MARINE MAMMALS IN THE OFFSHORE SURVEY AREA OF THE ARCTIC OCEAN NORTH OF THE CHUKCHI SEA IN SEPTEMBER–OCTOBER 2011. CETACEAN DENSITIES ARE CORRECTED FOR F(0) AND G(0) BI- ASES. SPECIES LISTED AS ENDANGERED ARE IN ITALICS

Density Density Species (#/1000 km 2) (#/1000 km 2) in depths <200 m in depths >200 m

Mysticetes: Bowhead Whale ...... 1.87 0 Gray Whale ...... 1.48 0 Fin Whale ...... 0.01 0.01 Humpback Whale ...... 0.01 0.01 Minke Whale ...... 0.01 0.01 Odontocetes: Beluga ...... 1.65 6.78 Killer whale ...... 0.01 0.01 Pinnipeds: Bearded Seal ...... 14.18 0 Spotted Seal ...... 0.98 0.98 Ringed Seal ...... 48.92 48.92 Ribbon Seal ...... 0.27 0.27

UAGI’s estimates of exposures to mammals potentially exposed to 160 dB areas of overlap. In the proposed survey, various sound levels assume that the (rms) sounds are precautionary, and the seismic lines are widely spaced in proposed survey will be fully probably overestimate the actual the survey area, so few individual completed; in fact, the ensonified areas numbers of marine mammals that might marine mammals would be exposed calculated using the planned number of be involved. These estimates assume more than once during the survey. The line-kilometers have been increased by that there will be no ice, weather, area including overlap is only 1.3 times 25% to accommodate turns, lines that equipment, or mitigation delays, which the area excluding overlap. Moreover, it may need to be repeated, equipment is highly unlikely. is unlikely that a particular animal testing, etc. As is typical during offshore UAGI estimated the number of would stay in the area during the entire ship surveys, inclement weather and different individuals that may be survey. The number of different equipment malfunctions are likely to exposed to airgun sounds with received individuals potentially exposed to cause delays and may limit the number levels greater than or equal to 160 dB re received levels greater than or equal to μ of useful line-kilometers of seismic 1 μPa (rms) on one or more occasions by 160 re 1 Pa (rms) was calculated by operations that can be undertaken. The considering the total marine area that multiplying: Langseth is not ice-strengthened and would be within the 160 dB radius (1) The expected species density, will completely avoid ice, so it is very around the operating airgun array on at times. likely that the survey will not be least one occasion and the expected (2) The anticipated area to be completed because ice likely will be density of marine mammals. The ensonified to that level during airgun present. Furthermore, any marine number of possible exposures operations in each depth stratum, mammal sightings within or near the (including repeated exposures of the excluding overlap. designated EZ will result in the shut- same individuals) can be estimated by The area expected to be ensonified down of seismic operations as a considering the total marine area that was determined by entering the planned mitigation measure. Thus, the following would be within the 160 dB radius survey lines into a MapInfo GIS, using estimates of the numbers of marine around the operating airguns, including the GIS to identify the relevant areas by

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‘‘drawing’’ the applicable 160 dB buffer potentially could be exposed to sounds [59,137 mi2] including the 25% (see Table 1 in this document and in the greater than or equal to 160 dB re 1 μPa contingency) would be within the 160- IHA application) around each seismic (rms) during the proposed seismic dB isopleth on one or more occasions line, and then calculating the total area survey if no animals moved away from during the survey. For less than 200 m within the buffers. Areas of overlap the survey vessel. Table 3 in this (656 ft) and greater than 200 m (656 ft) (because of lines being closer together document presents the abundance of the depth ranges, the areas are 38,188 km2 than the 160 dB radius) were limited different species or stocks, proposed (14,744 mi2; 47,736 km2 [18,431 mi2] and included only once when take authorization, and the percentage including the 25% contingency) and estimating the number of individuals of the regional population or stock. 84,342 km2 (32,565 mi2; 105,427 km2 exposed. Before calculating numbers of Table 4 in UAGI’s application includes [40,706 mi2] including the 25% individuals exposed, the areas were species beyond those presented in Table contingency), respectively. Because this increased by 25% as a precautionary 3 in this document for which take is measure. requested. Walrus and polar bears are approach does not allow for turnover in For species whose densities were the not included in this document because the mammal populations in the study same regardless of water depth, UAGI those species are under the jurisdiction area during the course of the survey, the used ensonified areas for all water of the USFWS. Although presented in actual number of individuals exposed depths to calculate numbers exposed. Table 4 in UAGI’s application, no take could be underestimated in some cases. For species whose densities were has been requested and none is However, the approach assumes that no different in water depths less than 200 proposed to be authorized for narwhal marine mammals will move away from m (656 ft) and greater than 200 m (656 or harbor porpoise. Because the harbor or toward the trackline as the Langseth ft; see Table 2 in this document and porpoise is mainly a shallow-water approaches in response to increasing Table 3 in UAGI’s application), UAGI species, it is not expected to occur in sound levels prior to the time the levels used ensonified areas for tracklines in the survey area. Narwhals are reach 160 dB, which will result in water depths less than 200 m (656 ft) considered extralimital in Alaska, and overestimates for those species known and the sum of the ensonified areas in any vagrants likely would be associated to avoid seismic vessels. The take water depths 200–1,000 m (656–3,280 with sea ice. The Langseth is not ice- estimates presented in this section of ft) and greater than 1,000 m (3,280 ft) strengthened and will completely avoid the document do not take into and applied them to the different ice, so encounters with narwhals are not consideration the mitigation and densities. expected. monitoring measures that are proposed Table 4 in UAGI’s application shows Applying the approach described for inclusion in the IHA (if issued). the estimates of the number of different above, approximately 122,530 km2 individual marine mammals that (47,309 mi2; approximately 153,163 km2

TABLE 3—POPULATION ABUNDANCE ESTIMATES, TOTAL PROPOSED TAKE, AND THE PERCENTAGE OF THE POPULATION OR STOCK THAT MAY BE EXPOSED TO SOUNDS ≥160 DB RE 1 μPA (RMS) DURING THE PROPOSED SEISMIC SURVEY IN THE ARCTIC OCEAN, SEPTEMBER–OCTOBER 2011

1 Proposed take Percentage of Species Abundance authorization population or stock

Bowhead Whale ...... 2 14,731 89 0.6 Gray Whale ...... 19,126 71 0.4 Humpback Whale ...... 3 20,800 2 0.01 Minke Whale ...... 810 2 0.2 Fin Whale ...... 5,700 2 0.04 Beluga Whale ...... 4 42,968 794 1.8 Killer Whale ...... 5 768 2 0.3 Bearded Seal ...... 250,000–300,000 677 0.2–0.3 Spotted Seal ...... 59,214 150 0.3 Ringed Seal ...... 249,000 7,492 3 Ribbon Seal ...... 49,000 42 0.09 1 Unless stated otherwise, abundance estimates are from Allen and Angliss (2011). 2 Based on estimate of 10,545 individuals in 2001 with a 3.4% annual growth rate (George et al., 2004 and revised by Zeh and Punt, 2005). 3 North Pacific Ocean (Barlow et al., 2009). 4 Based on estimates for the eastern Chukchi Sea and Beaufort Sea stocks (Allen and Angliss, 2011). 5 Based on estimates for the Northern resident and transient stocks (Allen and Angliss, 2011).

Encouraging and Coordinating Research seismic surveys may be occurring in the Negligible Impact and Small Numbers northeast Chukchi and/or western Analysis and Preliminary Determination UAGI and NSF will coordinate the Beaufort Sea closer to shore, and those planned marine mammal monitoring projects are likely to involve marine NMFS has defined ‘‘negligible program associated with the seismic mammal monitoring. UAGI and NSF impact’’ in 50 CFR 216.103 as ‘‘* * * an survey in the Arctic Ocean with other impact resulting from the specified have coordinated, and will continue to parties that may have interest in the area activity that cannot be reasonably coordinate, with other applicable and/or be conducting marine mammal expected to, and is not reasonably likely studies in the same region during the Federal, State, and Borough agencies, to, adversely affect the species or stock proposed seismic survey. No other and will comply with their through effects on annual rates of marine mammal studies are expected to requirements. recruitment or survival.’’ In making a occur in the study area at the proposed negligible impact determination, NMFS time. However, other industry-funded considers a variety of factors, including

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but not limited to: (1) The number of and fin whale. All of these species are Availability of Affected Species or anticipated mortalities; (2) the number also considered depleted under the Stock for Taking for Subsistence Uses and nature of anticipated injuries; (3) MMPA. As stated previously in this Relevant Subsistence Uses the number, nature, intensity, and document, the affected bowhead whale duration of Level B harassment; and (4) stock has been increasing at a rate of Subsistence remains the basis for the context in which the takes occur. 3.4% per year since 2001. On December Alaska Native culture and community. Marine mammals are legally hunted in For reasons stated previously in this 10, 2010, NMFS published a notification Alaskan waters by coastal Alaska document, no injuries or mortalities are of proposed threatened status for anticipated to occur as a result of Natives. In rural Alaska, subsistence subspecies of the ringed seal (75 FR UAGI’s proposed seismic survey, and activities are often central to many 77476) and a notification of proposed none are proposed to be authorized by aspects of human existence, including NMFS. Additionally, for reasons threatened and not warranted status for patterns of family life, artistic presented earlier in this document, subspecies and distinct population expression, and community religious temporary hearing impairment (and segments of the bearded seal (75 FR and celebratory activities. Additionally, especially permanent hearing 77496) in the Federal Register. Neither the animals taken for subsistence impairment) is not anticipated to occur species is considered depleted under provide a significant portion of the food during the proposed specified activity. the MMPA. The listing for these species that will last the community throughout Impacts to marine mammals are is not anticipated to be completed prior the year. The main species that are anticipated to be in the form of Level B to the end of this proposed seismic hunted include bowhead and beluga behavioral harassment only, due to the survey. Certain stocks of beluga whale whales, ringed, spotted, and bearded brief duration and sporadic nature of the and spotted seal are listed or proposed seals, walruses, and polar bears. (As survey. Certain species may have a for listing under the ESA. However, mentioned previously in this document, behavioral reaction (e.g., increased those stocks do not occur in the both the walrus and the polar bear are swim speed, avoidance of the area, etc.) proposed project area. under the USFWS’ jurisdiction.) The to the sound emitted during the importance of each of these species As has been noted previously in this proposed marine seismic survey. Table varies among the communities and is 3 in this document outlines the number document, many cetacean species, largely based on availability. of Level B harassment takes that are especially mysticetes, may display Barrow and Wainwright, which is in anticipated as a result of the proposed avoidance reactions and not enter into the Chukchi Sea, are the two villages activities. No mortality or injury is areas close to the active airgun array. that are closest to the proposed survey expected to occur, and due to the However, alternate areas are available to area, which will be initiated more than nature, degree, and context of these species. The location of the survey 200 km (124 mi) offshore. Marine behavioral harassment anticipated, the is not a known feeding ground for these mammals are also hunted in the activity is not expected to impact rates species. It is not used for breeding or Beaufort Sea villages of Kaktovik and of recruitment or survival. The proposed nursing. Although ice seals breed and Nuiqsut (mostly from Cross Island). survey would not occur in any areas nurse in the Chukchi Sea, the survey Other villages in the Chukchi Sea that designated as critical habitat for ESA- occurs outside of the time for ice seal hunt for marine mammals include Point listed species. Additionally, as breeding or nursing in the Chukchi Sea. Lay, Point Hope, Kivalina, and mentioned previously in this document, Kotzebue. The villages of Kivalina and The population estimates for the the proposed seismic survey will not Kotzebue are many hundreds of miles species that may potentially be taken as destroy marine mammal habitat. south of the proposed project area. a result of UAGI’s proposed seismic While some of the species could (1) Bowhead Whale potentially occur in the proposed survey survey were presented earlier in this area year-round, some species only document. For reasons described earlier Bowhead whale hunting is the key occur at certain times of the year. In the in this document, the maximum activity in the subsistence economies of fall, bowhead whales begin their calculated number of individual marine Barrow and two smaller communities to westward migration through the mammals for each species that could the east, Nuiqsut and Kaktovik. Beaufort Sea in late August/early potentially be taken by harassment is Bowhead whales are also hunted by September. The whales usually reach small relative to the overall population communities along the Chukchi Sea. Barrow around mid-September. It is sizes (3% for ringed seals, 1.8% for The community of Barrow hunts likely that most bowhead whales will beluga whales, and less than 1% of each bowhead whales in both the spring and not enter the proposed survey area until of the other 9 marine mammal fall during the whales’ seasonal about the second half of the proposed populations or stocks). migrations along the coast. The survey time period. Additionally, communities of Nuiqsut and Kaktovik Based on the analysis contained humpback and fin whales have only participate only in the fall bowhead started to be sighted in the Chukchi Sea herein of the likely effects of the harvest. The spring hunt at Barrow in the last 5–6 years. As the extent of specified activity on marine mammals occurs after leads open because of the Arctic sea ice begins to change, these and their habitat, and taking into deterioration of pack ice; the spring species may be expanding their normal consideration the implementation of the hunt typically occurs from early April range further north. However, this is mitigation and monitoring measures, until the first week of June. The fall still considered the extreme northern NMFS preliminarily finds that the migration of bowhead whales that edge of the range of these species, so it proposed seismic survey will result in summer in the eastern Beaufort Sea is unlikely that they will be present the incidental take of small numbers of typically begins in late August or throughout the entire proposed survey marine mammals and that the total September. The location of the fall time period. taking from UAGI’s proposed activities subsistence hunt depends on ice Of the 11 marine mammal species will have a negligible impact on the conditions and (in some years) likely to occur in the proposed survey affected species or stocks. Impact on industrial activities that influence the area, three are listed as endangered bowheads movements as they move under the ESA: Bowhead, humpback, west (Brower, 1996). In the fall,

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subsistence hunters use aluminum or Sea coast, bowhead whales have Chukchi Sea and Barrow, as those hunts fiberglass boats with outboards. Hunters recently primarily been hunted during are completed many months prior to the prefer to take bowheads close to shore the spring, between March and June. beginning of this proposed survey. The to avoid a long tow during which the However, with changing ice patterns, villages of Kaktovik and Nuiqsut are meat can spoil, but Braund and there is a possibility that Chukchi Sea several hundred miles to the east of the Moorehead (1995) report that crews may villages could begin participating in fall proposed survey location. Therefore, no (rarely) pursue whales as far as 80 km bowhead whale hunts. Table 4 in this impacts are anticipated on the fall hunts (50 mi) offshore. The autumn hunt at document (Table 5 in UAGI’s at Kaktovik or Nuiqsut (Cross Island). Barrow usually begins in mid- application) presents harvest data for The closest tracklines to Barrow are September, and mainly occurs in the the years 1993–2008 for bowhead whale more than 200 km (124 mi) and in most waters east and northeast of Point hunts in five North Slope communities. cases between 250 and 800 km (155–497 Barrow. The whales have usually left The proposed survey will not have mi) to the northwest of Barrow. The the Beaufort Sea by late October any impacts on the spring bowhead whales will reach Barrow before they (Treacy, 2002a,b). Along the Chukchi whale hunt by communities along the enter into the proposed survey area.

(2) Beluga Whale 25.4 beluga whales from the Beaufort Point Hope, the vessel will remain Sea stock and 59 from the eastern approximately 80 km (50 mi) from the Beluga whales are available to Chukchi Sea stock. The average annual coast, in transit northward to the study subsistence hunters at Barrow in the harvest of beluga whales taken by spring when pack-ice conditions area. Barrow for 1962–1982 was five (MMS, deteriorate and leads open up. Belugas 1996). The Alaska Beluga Whale (3) Ice Seals may remain in the area through June and sometimes into July and August in Committee recorded that 23 beluga Ringed seals are hunted by villagers ice-free waters. Hunters usually wait whales had been harvested by Barrow along the Beaufort Sea coast mainly until after the spring bowhead whale hunters from 1987 to 2002, ranging from from October through June. Hunting for hunt is finished before turning their 0 in 1987, 1988, and 1995 to the high these smaller mammals is concentrated attention to hunting belugas. Few, if of 8 in 1997 (Fuller and George, 1999; during winter because bowhead whales, any, belugas are taken by Kaktovik and Alaska Beluga Whale Committee, 2002 bearded seals, and caribou are available Nuiqsut hunters and only during the fall cited in USDI/BLM, 2005). through other seasons. Winter leads in whale harvest. Along the Chukchi Sea, UAGI’s proposed seismic survey is the area off Point Barrow and along the belugas are hunted during the spring not anticipated to impact beluga hunts barrier islands of Elson Lagoon to the and in the summer (between July and conducted by villages of the North east are used for hunting ringed seals. August) by residents of Wainwright and Slope. The timing of the proposed The average annual ringed seal harvest Point Hope. Near Point Lay, belugas are survey is after the spring and summer by the community of Barrow from the taken in June and July. During 2002– beluga harvests in the Chukchi Sea. 1960s through much of the 1980s has 2006, Alaska Native subsistence hunters Although hunting of beluga from Point been estimated as 394. Along the took a mean annual number of Hope may extend into September, off Chukchi Sea coast, ringed seals are

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mainly taken between May and the ice floes in the drifting ice pack, so potential conflict. The project’s September near Wainwright, and hunting usually occurs from boats in the principal investigator (PI) contacted Dr. throughout the year by Point Lay and drift ice. Braund et al. (1993) estimated Glenn Sheehan of the Barrow Arctic Point Hope hunters. As the seismic that 174 bearded seals were harvested Science Consortium and NSB biologist, survey will occur far offshore, the annually at Barrow from 1987 to 1990. Dr. Robert Suydam, on January 7, 2010, survey will not affect ringed seals in the The majority of bearded seal harvest to inform them of the proposed study nearshore areas where they are hunted. sites from 1987 to 1990 was within and the elements intended to minimize It is unlikely that accessibility to ringed approximately 24 km (15 mi) of Point potential subsistence conflict. The PI seals during the subsistence hunt could Barrow (Braund et al., 1993), well presented the proposed UAGI survey at be impaired during the Langseth’s inshore of the proposed survey. Along a meeting of the Alaska Eskimo Whaling transit to and from the study area when the Chukchi Sea coast, bearded seals are Commission (AEWC) in Barrow on the airguns are not operating. Although mainly taken between May and February 11, 2010. He explained the some hunting in the Chukchi Sea does September near Wainwright, during the survey plans to the local residents, occur as far as 32 km (20 mi) from shore, spring and summer by Point Hope including NSB Department of Wildlife the area affected during transit would be hunters, and throughout the year by Management biologists, consulted with in close proximity to the ship, which Point Lay hunters. These hunts occur stakeholders about their concerns, and will be transiting approximately 80 km closer into shore than the proposed discussed the aspects of the survey (50 mi) offshore. survey area or the proposed transit designed to mitigate impacts. No major The spotted seal subsistence hunt on route. concerns were expressed. The PI also the Beaufort Sea coast peaks in July and attended the 2011 AEWC meeting on August, at least in 1987–1990, but Potential Impacts to Subsistence Uses February 17–18; representatives from all involves few animals. Spotted seals NMFS has defined ‘‘unmitigable NSB communities attended. The only typically migrate south by October to adverse impact’’ in 50 CFR 216.103 as: concern expressed was that AEWC overwinter in the Bering Sea. Admiralty * * * an impact resulting from the specified would like a good communication link Bay, less than 60 km (37 mi) to the east activity: (1) That is likely to reduce the with the Langseth during the survey. As of Barrow (and more than 260 km availability of the species to a level requested by AEWC, communication [162 mi] from the proposed survey area), insufficient for a harvest to meet subsistence lines between the NSB and the Langseth is a location where spotted seals are needs by: (i) Causing the marine mammals to during the survey will be kept open in harvested. Spotted seals are also abandon or avoid hunting areas; (ii) Directly order to minimize potential conflicts. occasionally hunted in the area off Point displacing subsistence users; or (iii) Placing The study was also presented to Barrow and along the barrier islands of physical barriers between the marine government agencies, affected Elson Lagoon to the east (USDI/BLM, mammals and the subsistence hunters; and stakeholders, and the general public at 2005). The average annual spotted seal (2) That cannot be sufficiently mitigated by the annual Arctic Open-water Meeting harvest by the community of Barrow other measures to increase the availability of marine mammals to allow subsistence needs in Anchorage, Alaska, on March 7–8, from 1987–1990 was one (Braund et al., to be met. 2011. 1993). Along the Chukchi Sea coast, As part of its MMPA IHA application, seals are mainly taken between May and Noise emitted during the proposed UAGI submitted a POC to NMFS. As September near Wainwright, and seismic survey from the acoustic noted in the POC, a Barrow resident throughout the year by Point Lay and sources has the potential to impact knowledgeable about the mammals and Point Hope hunters. marine mammals hunted by Native fish of the area is expected to be The proposed seismic survey will take Alaskans. In the case of cetaceans, the included as a PSO aboard the Langseth. place at least 200 km offshore from the most common reaction to anthropogenic Although the primary duty of this preferred nearshore harvest area of these sounds (as noted previously in this individual will be as a member of the seals. It is unlikely that accessibility to document) is avoidance of the PSO team responsible for implementing spotted seals during the subsistence ensonified area. In the case of bowhead the monitoring and mitigation hunt could be impaired during the whales, this often means that the requirements, this person will also be Langseth’s transit to and from the study animals divert from their normal able to act as a liaison with hunters if area when the airguns are not operating. migratory path by several kilometers. they are encountered at sea. However, Although some hunting in the Chukchi However, because the proposed survey the proposed activity has been timed so Sea does occur as far as 40 km (25 mi) occurs so far from any of the traditional as to avoid overlap with the main from shore, the area affected during hunting grounds and to the west of the harvests of marine mammals (especially transit would be in close proximity to fall bowhead hunting areas (meaning bowhead whales). Meetings with the ship. the whales would reach the hunting whaling captains, other community Bearded seals, although not favored grounds before entering the survey representatives, the AEWC, NSB, and for their meat, are important to area), it is not anticipated that there will any other parties to the POC have been subsistence activities in Barrow because be impacts to subsistence uses. and will continue to be held, as of their skins. Six to nine bearded seal Plan of Cooperation (POC) necessary, to negotiate the terms of the hides are used by whalers to cover each POC and to coordinate the planned of the skin-covered boats traditionally Regulations at 50 CFR 216.104(a)(12) seismic survey operations with used for spring whaling. Because of require MMPA authorization applicants subsistence activity. their valuable hides and large size, for activities that take place in Arctic bearded seals are specifically sought. waters to provide a POC or information Unmitigable Adverse Impact Analysis Bearded seals are harvested during the that identifies what measures have been and Preliminary Determination summer months in the Beaufort Sea taken and/or will be taken to minimize NMFS has preliminarily determined (USDI/BLM, 2005). The summer hunt adverse effects on the availability of that UAGI’s proposed marine seismic typically occurs near Thetis Island in marine mammals for subsistence survey in the Arctic Ocean will not have July through August (prior to initiation purposes. UAGI has worked with the an unmitigable adverse impact on the of UAGI’s proposed survey). The people of the North Slope Borough availability of marine mammal species animals inhabit the environment around (NSB) to identify and avoid areas of or stocks for taking for subsistence uses.

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This preliminary determination is the proposed seismic survey. Therefore, ACTION: Notice of issuance of a Letter of supported by the fact that UAGI and consultation pursuant to section 7 of the Authorization. NSF have worked closely with the ESA is not needed for these species. AEWC and NSB to ensure that the SUMMARY: In accordance with the National Environmental Policy Act proposed activities are not co-located Marine Mammal Protection Act (NEPA) with annual subsistence activities. (MMPA), as amended, and Additionally, the proposed seismic With its complete application, UAGI implementing regulations, notification survey will occur more than 200 km and NSF provided NMFS an EA is hereby given that a Letter of (124 mi) offshore of the North Slope and analyzing the direct, indirect, and Authorization (LOA) has been issued to to the west of the communities that cumulative environmental impacts of Neptune LNG LLC (Neptune) to take conduct fall bowhead whale subsistence the proposed specified activities on marine mammals, by harassment, hunts. This means that the whales will marine mammals including those listed incidental to port commissioning and reach the communities prior to entering as threatened or endangered under the operations, including maintenance and into the proposed survey area. The ESA. The EA, prepared by LGL on repair activities, at the Neptune Chukchi Sea beluga hunts are typically behalf of NSF is entitled Deepwater Port (the Port) in completed prior to the time the ‘‘Environmental Assessment of a Marine Massachusetts Bay. Langseth would be transiting through Geophysical Survey by the R/V Marcus DATES: Effective from July 12, 2011, the Chukchi Sea to the survey site. G. Langseth in the Arctic Ocean, through July 10, 2016. Should late summer or early fall hunts September–October 2011.’’ Prior to ADDRESSES: The LOA and supporting of certain species be occurring at the making a final decision on the IHA documentation may be obtained by time of transit of the vessel, the hunts application, NMFS will either prepare writing to Michael Payne, Chief, occur closer into shore than the an independent EA, or, after review and Permits, Conservation and Education proposed transit route of the Langseth. evaluation of the NSF EA for Division, Office of Protected Resources, Based on the measures described in consistency with the regulations NMFS, 1315 East-West Highway, Silver UAGI’s POC, the proposed mitigation published by the Council on Spring, MD 20910, calling the contact and monitoring measures (described Environmental Quality and NOAA listed under FOR FURTHER INFORMATION earlier in this document), and the Administrative Order 216–6, CONTACT, or visiting the Internet at: project design itself, NMFS has Environmental Review Procedures for http://www.nmfs.noaa.gov/pr/permits/ determined preliminarily that there will Implementing the National incidental.htm. Documents cited in this not be an unmitigable adverse impact on Environmental Policy Act, adopt the notice may also be viewed, by subsistence uses from UAGI’s marine NSF EA and make a decision of whether appointment, during regular business seismic survey. or not to issue a Finding of No hours at the above address. Endangered Species Act (ESA) Significant Impact. The Final Environmental Impact Statement (Final EIS) on the Neptune Three of the marine mammal species Proposed Authorization that could occur in the proposed Deepwater Port License Application seismic survey area are listed under the As a result of these preliminary authored by the Maritime ESA: Bowhead whale; humpback whale; determinations, NMFS proposes to Administration (MARAD) and U.S. and fin whale. Under Section 7 of the authorize the take of marine mammals Coast Guard (USCG) is available for ESA, NSF has initiated formal incidental to UAGI’s proposed marine viewing at http://www.regulations.gov consultation with the NMFS, Office of seismic survey in the Arctic Ocean, by entering the search words ‘‘Neptune Protected Resources, Endangered provided the previously mentioned LNG.’’ FOR FURTHER INFORMATION Species Division, on this proposed mitigation, monitoring, and reporting CONTACT: Candace Nachman, Office of seismic survey. NMFS’s Office of requirements are incorporated. Protected Resources, NMFS, (301) 427– Protected Resources, Permits, Dated: July 11, 2011. 8401. Conservation and Education Division, James H. Lecky, SUPPLEMENTARY INFORMATION: has also initiated formal consultation Director, Office of Protected Resources, Background under section 7 of the ESA with NMFS’ National Marine Fisheries Service. Section 101(a)(5)(A) of the MMPA (16 Office of Protected Resources, [FR Doc. 2011–17765 Filed 7–13–11; 8:45 am] Endangered Species Division, to obtain U.S.C. 1361 et seq.) directs the Secretary BILLING CODE 3510–22–P a Biological Opinion evaluating the of Commerce to allow, upon request, the effects of issuing the IHA on ESA-listed incidental, but not intentional, taking of marine mammals and, if appropriate, DEPARTMENT OF COMMERCE small numbers of marine mammals by authorizing incidental take. NMFS will U.S. citizens who engage in a specified conclude formal section 7 consultation National Oceanic and Atmospheric activity (other than commercial fishing) prior to making a determination on Administration within a specified geographical region if whether or not to issue the IHA. If the certain findings are made and IHA is issued, UAGI, in addition to the [RIN 0648–XA562] regulations are issued. Under the mitigation and monitoring requirements MMPA, the term ‘‘take’’ means to included in the IHA, will be required to Taking and Importing Marine harass, hunt, capture, or kill or to comply with the Terms and Conditions Mammals; Taking Marine Mammals attempt to harass, hunt, capture, or kill of the Incidental Take Statement Incidental to Operation and any marine mammal. corresponding to NMFS’s Biological Maintenance of the Neptune Liquefied Authorization for incidental takings Opinion issued to both NSF and Natural Gas Facility off Massachusetts may be granted for periods up to 5 NMFS’s Office of Protected Resources. years, after notification and opportunity Although the ringed seal and bearded AGENCY: National Marine Fisheries for public comment, if NMFS finds that seal have been proposed for listing Service (NMFS), National Oceanic and the taking will have a negligible impact under the ESA, neither of the listings Atmospheric Administration (NOAA), on the species or stock(s), will not have will be finalized prior to conclusion of Commerce. an unmitigable adverse impact on the

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availability of the species or stock(s) for Take of marine mammals will be monitoring during the period of subsistence uses (where relevant), and if minimized through the implementation effectiveness of this LOA. the permissible methods of taking and of the following mitigation measures: (1) Dated: July 11, 2011. requirements pertaining to the Restricting repair and maintenance James H. Lecky, mitigation, monitoring and reporting of activities to the period between May 1 such takings are set forth. NMFS has Director, Office of Protected Resources, and November 30, to the greatest extent National Marine Fisheries Service. defined ‘‘negligible impact’’ in 50 CFR practicable, so that acoustic disturbance 216.103 as ‘‘* * * an impact resulting to the endangered North Atlantic right [FR Doc. 2011–17762 Filed 7–13–11; 8:45 am] from the specified activity that cannot whale can largely be avoided; (2) using BILLING CODE 3510–22–P be reasonably expected to, and is not NMFS-approved protected species reasonably likely to, adversely affect the observers (PSOs) onboard vessels and species or stock through effects on bioacoustic technicians; (3) taking CONSUMER PRODUCT SAFETY annual rates of recruitment or survival.’’ appropriate actions to minimize the risk COMMISSION Regulations governing the take of 14 of striking whales, including reducing [CPSC Docket No. 11–C0006] species of marine mammals, by Level B speed to 10 knots or less in certain harassment only, incidental to operation seasons and areas and alerting Macy’s, Inc., Provisional Acceptance of and repair and maintenance activities at personnel responsible for navigation a Settlement Agreement and Order the Neptune Port off Massachusetts and lookout duties to concentrate their were issued on June 13, 2011 (76 FR efforts when a marine mammal is AGENCY: Consumer Product Safety 34157). These regulations are effective sighted; (4) remaining 1 km (0.6 mi) Commission. from July 11, 2011, through July 10, away from North Atlantic right whales ACTION: Notice. 2016 (76 FR 35995, June 21, 2011). The and other whales to the extent possible species which are authorized for taking while moving, and PSOs will direct a SUMMARY: It is the policy of the are: North Atlantic right whale; moving vessel to slow to idle if a baleen Commission to publish settlements humpback whale; fin whale; sei whale; whale is seen less than 1 km (0.6 mi) which it provisionally accepts under the minke whale; long-finned pilot whale; from the vessel; (5) remaining 91 m (100 Consumer Product Safety Act in the killer whale; Atlantic white-sided yd) away from all other marine mammal Federal Register in accordance with the dolphin; harbor porpoise; common species; (6) ceasing any noise emitting terms of 16 CFR 1118.20(e). Published dolphin; Risso’s dolphin; bottlenose activities that exceed a source level of below is a provisionally-accepted dolphin; harbor seal; and gray seal. For 139 dB re 1 μPa if a right whale is Settlement Agreement with Macy’s, Inc., detailed information on this action, sighted within or approaching to a containing a civil penalty of please refer to the final rule and distance of 457 m (500 yd); (7) ceasing $750,000.00. correction to the final rule (76 FR 34157, any noise emitting activities that exceed DATES: Any interested person may ask June 13, 2011; 76 FR 35995, June 21, a source level of 139 dB re 1 μPa if a the Commission not to accept this 2011). These regulations include marine mammal other than a right agreement or otherwise comment on its mitigation, monitoring, and reporting whale is sighted within or approaching contents by filing a written request with requirements for the incidental take of to a distance of 91 m (100 yd); and (8) the Office of the Secretary by July 29, marine mammals during operation and implementing passive acoustic 2011. repair and maintenance activities at the monitoring of marine mammals to Neptune Port. ADDRESSES: Persons wishing to supplement the effectiveness of visual This LOA is effective from July 12, comment on this Settlement Agreement sightings. Additionally, the rule 2011, through July 10, 2016, and should send written comments to the authorizes the incidental take of the 14 includes an adaptive management Comment 11–C0006, Office of the marine mammal species listed above component that allows for timely Secretary, Consumer Product Safety that may result from port modification of mitigation or monitoring Commission, 4330 East-West Highway, commissioning and operations, measures based on new information, Room 820, Bethesda, Maryland 20814– including maintenance and repair when appropriate. No injury or 4408. activities, at the Neptune Deepwater mortality is anticipated, and none is authorized. FOR FURTHER INFORMATION CONTACT: Seth Port off Massachusetts. Once the Port is B. Popkin, Lead Trial Attorney, Division fully operational, it is anticipated that Through this LOA, Neptune is of Enforcement and Information, Office there may be up to 50 shuttle required to monitor for marine of the General Counsel, Consumer regasification vessel (SRV) trips per mammals using both visual observers Product Safety Commission, 4330 East- year. (i.e., PSOs) and passive acoustic West Highway, Bethesda, Maryland Potential effects of Neptune’s port monitoring systems. Neptune is 20814–4408; telephone (301) 504–7612. operations and maintenance/repair required to submit an annual report to SUPPLEMENTARY INFORMATION: activities would most likely be acoustic NMFS on August 1 of each year. The The text of in nature. LNG port operations and report will include data collected for the Agreement and Order appears maintenance/repair activities introduce each distinct marine mammal species below. sound into the marine environment. observed in the LNG facility area during July 11, 2011. Potential acoustic effects on marine the period of January 1 through Todd A. Stevenson, mammals relate to sound produced by December 31 of the previous year of Secretary. thrusters during maneuvering of the activity. Additional information on the SRVs while docking and undocking, mitigation, monitoring, and reporting Settlement Agreement occasional weathervaning at the port, requirements can be found in the final 1. In accordance with 16 CFR 1118.20, and during thruster use of dynamic rule (76 FR 34157, June 13, 2011). Macy’s, Inc. (‘‘Macy’s’’) and the U.S. positioning maintenance vessels should Neptune is also required to submit a Consumer Product Safety Commission a major repair be necessary. Marine comprehensive report, which shall (‘‘Commission’’) staff (‘‘Staff’’) enter into mammals may experience masking and provide full documentation of methods, this Settlement Agreement behavioral disturbance. results, and interpretation of all (‘‘Agreement’’). The Agreement and the

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incorporated attached Order (‘‘Order’’) 8. In June 1997, ASTM adopted a violated CPSA section 19(a)(4), 15 settle Staff’s allegations set forth below. voluntary standard (ASTM F1816–97) U.S.C. 2068(a)(4). Pursuant to CPSA incorporating the Guidelines. The section 20, 15 U.S.C. 2069, this knowing Parties Guidelines state that firms should be failure subjected Macy’s to civil 2. Staff is the staff of the Commission, aware of the hazards associated with penalties. an independent Federal regulatory drawstrings and should ensure that 15. On multiple occasions from March agency established pursuant to, and garments they sell conform to the 2009 to January 2010, Macy’s offered responsible for the enforcement of, the voluntary standard. Garments for sale, sold Garments, and/ Consumer Product Safety Act, 15 U.S.C. 9. On May 19, 2006, the Commission or distributed Garments in commerce 2051–2089 (‘‘CPSA’’). posted on its website a letter from the that were subject to voluntary corrective 3. Macy’s is a corporation organized Commission’s Director of the Office of action taken by the Garments’ and existing under the laws of Compliance to manufacturers, manufacturers, in consultation with the Delaware, with its principal offices importers, and retailers of children’s Commission. The Commission notified located in Cincinnati, Ohio. At all upper outerwear. The letter urges them the public of that action, or Macy’s relevant times, Macy’s sold apparel and to make certain that all children’s upper knew or should have known of that other products. outerwear sold in the United States action. Staff Allegations complies with ASTM F1816–97. The 16. Macy’s knowingly engaged in the letter states that Staff considers acts alleged in paragraph 15 as the term 4. During periods of time from April children’s upper outerwear with ‘‘knowingly’’ is defined in CPSA section 2006 through October 2010, Macy’s, drawstrings at the hood or neck area to 20(d), 15 U.S.C. 2069(d). These acts through its subsidiaries, imported, sold, be defective and to present a substantial violated CPSA section 19(a)(2)(B), 15 and/or held for sale various quantities of risk of injury to young children under U.S.C. 2068(a)(2)(B). Pursuant to CPSA the following children’s upper Federal Hazardous Substances Act section 20, 15 U.S.C. 2069, these acts outerwear products with drawstrings at (‘‘FHSA’’) section 15(c), 15 U.S.C. subjected Macy’s to civil penalties. the neck: Quiksilver, Inc.—Hide & Seek 1274(c). The letter also references the hooded sweatshirts; Jerry Leigh of CPSA’s section 15(b) (15 U.S.C. 2064(b)) Macy’s Responsive Allegations California, Inc.—Harajuku Lovers reporting requirements. 17. Macy’s denies Staff’s allegations hooded jackets; La Jolla Sport USA, 10. Macy’s informed the Commission above, including, but not limited to, any Inc.—O’Neill hooded sweatshirts; that there had been no reported claim that Macy’s failed to timely report Dysfunctional Clothing, LLC—Lost incidents or injuries associated with the to the Commission the sale or hooded sweatshirts; Macy’s Garments. distribution of any children’s upper Merchandising Group, Inc.—Epic 11. Macy’s distribution in commerce outerwear products with drawstrings Threads hooded sweatshirts; Macy’s of the Garments did not meet either the pursuant to section 15(b) of the CPSA. Merchandising Group, Inc.—Greendog Guidelines or ASTM F1816–97, failed to 18. Macy’s promptly notified the sweaters; C–MRK, Inc.—Ocean Current comport with Staff’s May 2006 defect Commission pursuant to section 15(b) of hooded sweatshirts; NTD Apparel, notice, and posed a strangulation hazard the CPSA upon learning that certain Inc.—Hello Kitty hooded sweatshirts; S. to children. children’s upper outerwear products Rothschild & Co., Inc.—wool coats; and 12. The Commission, in cooperation contained drawstrings. VF Contemporary Brands, Inc.— with Macy’s and/or other firms that Splendid hooded jackets and hooded were the Garments’ manufacturers, Agreement of the Parties vest sets. The products identified in this importers, or distributors, announced 19. Under the CPSA, the Commission paragraph are collectively referred to recalls of the Garments. has jurisdiction over this matter and herein as ‘‘Garments.’’ 13. Based in part on information over Macy’s. 5. Macy’s sold the Garments, and/or available through the sources set forth 20. The parties enter into the held the Garments for sale, to in paragraphs 7 through 9 herein, Agreement for settlement purposes only. consumers. Macy’s had presumed and actual The Agreement does not constitute an 6. The Garments are ‘‘consumer knowledge that the Garments admission by Macy’s, or a determination product[s],’’ and, at all relevant times, distributed in commerce posed a by the Commission, that Macy’s Macy’s was a ‘‘manufacturer’’ and/or strangulation hazard and presented a knowingly violated the CPSA. ‘‘retailer’’ of those consumer products, substantial risk of injury to children 21. In settlement of Staff’s allegations, which were ‘‘distributed in commerce,’’ under FHSA section 15(c)(1), 15 U.S.C. Macy’s shall pay a civil penalty in the as those terms are defined in CPSA 1274(c)(1). Macy’s obtained information amount of seven hundred fifty thousand sections 3(a)(5), (8), (11), and (13), 15 that reasonably supported the dollars ($750,000.00). The civil penalty U.S.C. 2052(a)(5), (8), (11), and (13). conclusion that the Garments contained shall be paid within twenty (20) 7. In February 1996, Staff issued the a defect that could create a substantial calendar days of service of the Guidelines for Drawstrings on product hazard or that the Garments Commission’s final Order accepting the Children’s Upper Outerwear created an unreasonable risk of serious Agreement. The payment shall be made (‘‘Guidelines’’) to help prevent children injury or death. Pursuant to CPSA electronically to the Commission via from strangling or entangling on neck sections 15(b)(3) and (4), 15 U.S.C. http://www.pay.gov. and waist drawstrings. The Guidelines 2064(b)(3) and (4), Macy’s was required 22. Macy’s agrees that it will not seek state that drawstrings can cause, and to immediately inform the Commission or accept, directly or indirectly, have caused, injuries and deaths when of the defect and risk. indemnification, reimbursement, they catch on items such as playground 14. Macy’s knowingly failed to insurance, or any other form of equipment, bus doors, or cribs. In the immediately inform the Commission compensation or payment, including, Guidelines, Staff recommends that no about the Garments as required by CPSA but not limited to, cash, account credit, children’s upper outerwear in sizes 2T sections 15(b)(3) and (4), 15 U.S.C. or set-off, from any vendor or supplier to 12 be manufactured or sold to 2064(b)(3) and (4), and as the term from which Macy’s acquired the consumers with hood and neck ‘‘knowingly’’ is defined in CPSA section Garments, or from any other firm or drawstrings. 20(d), 15 U.S.C. 2069(d). This failure person, for the civil penalty that Macy’s

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agrees and is ordered to pay pursuant to submitting false information to Federal Executive Vice President, General Counsel, the Agreement and Order. officials, including the possibility of fines and Secretary, Seven West Seventh Street, 23. Upon provisional acceptance of and imprisonment. Cincinnati, Ohio 45202. the Agreement, the Agreement shall be The report shall be directed to the Dated: 6/22/11. placed on the public record and following Staff: Seth B. Popkin, Lead By: lllllllllllllllllll published in the Federal Register, in Trial Attorney, Office of the General Jeffrey B. Margulies, Esq., William L. accordance with the procedures set Counsel, Division of Compliance, U.S. Troutman, Esq., forth in 16 CFR 1118.20(e). In Consumer Product Safety Commission, Fulbright & Jaworski L.L.P., 555 South Flower accordance with 16 CFR 1118.20(f), if 4330 East-West Highway, Bethesda, MD Street, 41st Floor, Los Angeles, CA 90071, the Commission does not receive any 20814. Counsel for Macy’s, Inc. written request not to accept the 27. Upon the Commission’s final Agreement within fifteen (15) calendar U.S. Consumer Product Safety Commission acceptance of the Agreement and Staff. days, the Agreement shall be deemed issuance of the final Order, Macy’s finally accepted on the sixteenth (16th) knowingly, voluntarily, and completely Cheryl A. Falvey, calendar day after the date it is waives any rights it may have in this General Counsel. published in the Federal Register. matter to the following: (1) An Mary B. Murphy, 24. Macy’s shall conduct annual administrative or judicial hearing; (2) Assistant General Counsel, Office of the training of all employees responsible for judicial review or other challenge or General Counsel. purchasing children’s upper outerwear, contest of the validity of the Order or of Dated: 6/28/11. including training regarding all the Commission’s actions; (3) a By: lllllllllllllllllll drawstring prohibitions, restrictions, determination by the Commission of Seth B. Popkin, guidelines, rules, and laws, and shall whether Macy’s failed to comply with include such training when first hiring the CPSA and its underlying Lead Trial Attorney, Division of Compliance, or assigning employees responsible for regulations; (4) a statement of findings Office of the General Counsel. purchasing children’s upper outerwear. of fact and conclusions of law; and (5) Order 25. Within twenty (20) calendar days any claims under the Equal Access to of service of the Commission’s final Justice Act. Upon consideration of the Settlement Order accepting the Agreement, Macy’s 28. The Commission may publicize Agreement entered into between shall conduct a comprehensive review the terms of the Agreement and the Macy’s, Inc. (‘‘Macy’s’’) and the U.S. of its existing children’s apparel Order. Consumer Product Safety Commission inventory to identify any children’s 29. The Agreement and the Order (‘‘Commission’’) staff, and the upper outerwear bearing drawstrings at shall apply to, and be binding upon, Commission having jurisdiction over the neck (‘‘Drawstring Garments’’). Macy’s and each of its successors and the subject matter and over Macy’s, and 26. Within ten (10) calendar days of assigns. it appearing that the Settlement the completion of the review Macy’s 30. The Commission issues the Order Agreement and the Order are in the conducts pursuant to paragraph 25, under the provisions of the CPSA, and public interest, it is Macy’s shall submit to Staff an violation of the Order may subject Ordered, that the Settlement Inventory Review Completion Report, Macy’s and each of its successors and Agreement be, and hereby is, accepted; covering the review that Macy’s assigns to appropriate legal action. and it is conducted pursuant to paragraph 25. 31. The Agreement may be used in The report shall, at a minimum, include interpreting the Order. Understandings, Further Ordered, that Macy’s shall the following: agreements, representations, or pay a civil penalty in the amount of a. A comprehensive list of all interpretations apart from those seven hundred fifty thousand dollars Drawstring Garments that Macy’s has contained in the Agreement and the ($750,000.00) within twenty (20) identified, including, but not limited to, Order may not be used to vary or calendar days of service of the the following: item description; style contradict their terms. The Agreement Commission’s final Order accepting the number(s); garment sizes in inventory; shall not be waived, amended, Agreement. The payment shall be made number of units of each size in modified, or otherwise altered without electronically to the Commission via inventory; date(s) of purchase; identity written agreement thereto executed by http://www.pay.gov. Upon the failure of of the company/ies from which the the party against whom such waiver, Macy’s to make the foregoing payment garment was purchased; and (if amendment, modification, or alteration when due, interest on the unpaid applicable) the period of time during is sought to be enforced. amount shall accrue and be paid by which Macy’s sold and/or offered for 32. If any provision of the Agreement Macy’s at the Federal legal rate of sale the Drawstring Garment. and the Order is held to be illegal, interest set forth at 28 U.S.C. 1961(a) b. One sample of each available size invalid, or unenforceable under present and (b); and it is of each Drawstring Garment identified or future laws effective during the terms during the inventory review; Further Ordered, that Macy’s shall of the Agreement and the Order, such c. A description of the step(s) that fully perform all of its obligations as set provision shall be fully severable. The Macy’s has taken to eliminate the forth in the Settlement Agreement at balance of the Agreement and the Order strangulation hazards posed by each of paragraphs 24, 25, and 26. shall remain in full force and effect, the Drawstring Garments; and unless the Commission and Macy’s Provisionally accepted and provisional d. The following certification signed Order issued on the 8th day of July, 2011. by an officer of Macy’s: agree that severing the provision materially affects the purpose of the By Order of the Commission. Pursuant to 28 U.S.C. 1746, I certify under Agreement and the Order. Todd A. Stevenson, penalty of perjury that I have examined and Macy’s, Inc. Secretary, U.S. Consumer Product Safety am familiar with the information submitted Commission. in this document and all attachments, and Dated: 6/21/11. that the information is true and correct. I am By: lllllllllllllllllll [FR Doc. 2011–17746 Filed 7–13–11; 8:45 am] aware that there are significant penalties for Dennis Broderick, BILLING CODE 6355–01–P

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DEPARTMENT OF DEFENSE floor or speak to any issue under the use of appropriate automated, consideration by the Board. electronic, mechanical, or other Department of the Army FOR FURTHER INFORMATION CONTACT: The technological collection techniques or Committee’s Designated Federal Officer other forms of information technology. Board of Visitors, United States or Point of Contact is Ms. Joy A. Military Academy (USMA) Dated: July 11, 2011. Pasquazi, (845) 938–5078, Darrin A. King, [email protected]. AGENCY: Department of the Army, DoD. Director, Information Collection Clearance ACTION: Meeting notice. Brenda S. Bowen, Division, Privacy, Information and Records Army Federal Register Liaison Officer. Management Services, Office of Management. SUMMARY: Under the provisions of the Federal Advisory Committee Act of [FR Doc. 2011–17704 Filed 7–13–11; 8:45 am] Office of Postsecondary Education BILLING CODE 3710–08–P 1972 (5 U.S.C., Appendix, as amended), Type of Review: Extension. the Government in the Sunshine Act of Title of Collection: Upward Bound 1976 (5 U.S.C. 552b, as amended), and Annual Performance Report. 41 CFR 102–3.150, the Department of DEPARTMENT OF EDUCATION Defense announces that the following OMB Control Number: 1840–0762. Notice of Submission for OMB Review Federal advisory committee meeting Agency Form Number(s): N/A. will take place: AGENCY: Department of Education. Frequency of Responses: Annually. 1. Name of Committee: United States ACTION: Comment Request. Affected Public: Not-for-profit Military Academy Board of Visitors. institutions; State, Local, or Tribal 2. Date: Friday, July 29, 2011. SUMMARY: The Director, Information Government, State Educational 3. Time: 12 p.m.–3 p.m. Members of Collection Clearance Division, Privacy, Agencies or Local Educational Agencies. the public wishing to attend the meeting Information and Records Management Total Estimated Number of Annual will need to show photo identification Services, Office of Management, invites Responses: 1,143. in order to gain access to the meeting comments on the submission for OMB location. All participants are subject to review as required by the Paperwork Total Estimated Annual Burden security screening. Reduction Act of 1995 (Pub. L. 104–13). Hours: 10,287. 4. Location: Jefferson Hall Library, DATES: Interested persons are invited to Abstract: Grantees in the Upward Haig Room. West Point, NY. submit comments on or before August Bound programs (Upward Bound, 5. Purpose of the Meeting: This is the 15, 2011. Upward Bound Math-Science, and 2011 Summer Meeting of the USMA ADDRESSES: Written comments should Veterans Upward Bound) must submit Board of Visitors (BoV). Members of the be addressed to the Office of this report annually. The Department Board will be provided updates on Information and Regulatory Affairs, uses the reports to evaluate the Academy issues. Attention: Education Desk Officer, performance of grantees prior to 6. Agenda: The Academy leadership Office of Management and Budget, 725 awarding continuation funding and to will provide the Board updates on the 17th Street, NW., Room 10222, New assess grantees’ prior experience at the following: West Point Leader Executive Office Building, Washington, end of the budget period. The development System, Propensity to DC 20503, be faxed to (202) 395–5806 or Department will also aggregate the data Serve, Cost of Educating a Cadet, e-mailed to across projects to provide descriptive Connecting with Graduates and Net [email protected] with a information on the programs and to Zero. cc: to [email protected]. Please note analyze their outcomes in response to 7. Public’s Accessibility to the that written comments received in the Government Performance and Meeting: Pursuant to 5 U.S.C. 552b and response to this notice will be Results Act. 41 CFR 102–3.140 through 102–3.165, considered public records. Copies of the information collection and the availability of space, this SUPPLEMENTARY INFORMATION: Section submission for OMB review may be meeting is open to the public. Seating is 3506 of the Paperwork Reduction Act of accessed from the RegInfo.gov Web site on a first-come basis. 1995 (44 U.S.C. Chapter 35) requires at http://www.reginfo.gov/public/do/ 8. Committee’s Designated Federal that the Office of Management and PRAMain or from the Department’s Web Officer or Point of Contact: Ms. Joy A. Budget (OMB) provide interested site at http://edicsweb.ed.gov, by Pasquazi, (845) 938–5078, Federal agencies and the public an early selecting the ‘‘Browse Pending [email protected]. opportunity to comment on information Collections’’ link and by clicking on SUPPLEMENTARY INFORMATION: Any collection requests. The OMB is link number 4577. When you access the member of the public is permitted to file particularly interested in comments information collection, click on a written statement with the USMA which: (1) Evaluate whether the ‘‘Download Attachments ’’ to view. Board of Visitors. Written statements proposed collection of information is Written requests for information should should be sent to the Designated Federal necessary for the proper performance of be addressed to U.S. Department of Officer (DFO) at: United States Military the functions of the agency, including Education, 400 Maryland Avenue, SW., Academy, Office of the Secretary of the whether the information will have LBJ, Washington, DC 20202–4537. General Staff (MASG), 646 Swift Road, practical utility; (2) Evaluate the Requests may also be electronically West Point, NY 10996–1905 or faxed to accuracy of the agency’s estimate of the mailed to the Internet address the Designated Federal Officer (DFO) at burden of the proposed collection of [email protected] or faxed to 202– (845) 938–3214. Written statements information, including the validity of 401–0920. Please specify the complete must be received no later than five the methodology and assumptions used; title of the information collection and working days prior to the next meeting (3) Enhance the quality, utility, and OMB Control Number when making in order to provide time for member clarity of the information to be your request. consideration. By rule, no member of collected; and (4) Minimize the burden Individuals who use a the public attending open meetings will of the collection of information on those telecommunications device for the deaf be allowed to present questions from the who are to respond, including through (TDD) may call the Federal Information

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Relay Service (FIRS) at 1–800–877– preference priority. Under 34 CFR measures of academic achievement 8339. 75.105(c)(2)(i) we award up to an (preferably, the same measures that the [FR Doc. 2011–17772 Filed 7–13–11; 8:45 am] additional 10 points to an application, study will use to evaluate outcomes for BILLING CODE 4000–01–P depending on how well the application the two groups); (2) Demographic meets this priority. characteristics, such as age, disability, This priority is: gender, English proficiency, ethnicity, DEPARTMENT OF EDUCATION Supporting Programs, Practices, or poverty level, parents’ educational Strategies for which there are Strong or attainment, and single- or two-parent Applications for New Awards; Arts in Moderate Evidence of Effectiveness. family background; (3) The time period Education National Program Projects that are supported by strong in which the two groups are studied or moderate evidence. A project that is (e.g., the two groups are children AGENCY: Office of Innovation and supported by strong evidence (as entering kindergarten in the same year Improvement, Department of Education. defined in this notice) will receive more as opposed to sequential years); and (4) ACTION: Notice. points than a project that is supported Methods used to collect outcome data by moderate evidence (as defined in this (e.g., the same test of reading skills Overview Information notice). administered in the same way to both Arts in Education National Program. Application Requirements: groups). Notice inviting applications for new A project must describe how it would Experimental study means a study awards for fiscal year (FY) 2011. (a) Serve low-income students and that employs random assignment of, for students with disabilities; and (b) example, students, teachers, classrooms, Catalog of Federal Domestic Assistance (CFDA) Number: 84.351F. implement the following activities on a schools, or districts to participate in a national level: project being evaluated (treatment Dates: 1. Professional development based on group) or not to participate in the Applications Available: July 14, 2011. national standards for pre-kindergarten- project (control group). The effect of the Deadline for Transmittal of through-grade-12 arts educators. project is the average difference in Applications: August 15, 2011. Note: National standards refers to the arts outcomes between the treatment and Full Text of Announcement standards developed by the Consortium of control groups. Integration means (i) Encouraging the I. Funding Opportunity Description National Arts Education Associations. The standards outline what students should know use of high-quality arts instruction Purpose of Program: The Arts in and be able to do in the arts. These are not within other academic content areas, Education National Program supports Department standards. To view the and (ii) strengthening the arts as a core national level high-quality arts standards, please go to http://www.menc.org/ academic subject in the school education projects and programs for resources/view/the-national-standards-for- curriculum. children and youth, with special arts-education-a-brief-history. Interrupted time series design means emphasis on serving students from low- 2. Development and dissemination of a type of quasi-experimental study (as income families and students with instructional materials, including online defined in this notice) in which the disabilities. resources, in multiple arts disciplines outcome of interest is measured Priorities: This notice includes one for arts educators. multiple times before and after the absolute priority and one competitive 3. Arts-based educational treatment for program participants only. preference priority. We are establishing programming in music, dance, theater, If the program had an impact, the these priorities for the FY 2011 grant media arts, and visual arts, including outcomes after treatment will have a competition only, in accordance with folk arts for pre-kindergarten-through- different slope or level from those before section 437(d)(1) of the General grade-12 students and arts educators. treatment. That is, the series should Education Provisions Act (GEPA), 20 4. Community and national outreach show an ‘‘interruption’’ of the prior U.S.C. 1232(d)(1). activities that strengthen and expand situation at the time when the program Absolute Priority: For FY 2011, this partnerships among schools, school was implemented. Adding a comparison priority is an absolute priority. Under 34 districts, and communities throughout group time series, such as schools not CFR 75.105(c)(3) we consider only the country. participating in the program or schools applications that meet this priority. Definitions: participating in the program in a This priority is: As used in this notice— different geographic area, substantially Model Projects. Arts means music, dance, theater, increases the reliability of the findings.1 High-quality projects that are media arts, and visual arts, including designed to develop and implement, or folk arts. 1 A single subject or single case design is an expand, initiatives in arts education and Arts educator means a teacher or adaptation of an interrupted time series design that relies on the comparison of treatment effects on a arts integration on a national level for other instructional staff who work in single subject or group of single subjects. There is pre-kindergarten-through-grade-12 music, dance, theater, media arts, or little confidence that findings based on this design children and youth, with special visual arts, including folk arts. would be the same for other members of the emphasis on serving students from low- Carefully matched comparison group population. In some single subject designs, treatment reversal or multiple baseline designs are income families and students with design means a type of quasi- used to increase internal validity. In a treatment disabilities. experimental study (as defined in this reversal design, after a pretreatment or baseline In order to meet this priority, an notice) that attempts to approximate an outcome measurement is compared with a post applicant must demonstrate that the experimental study (as defined in this treatment measure, the treatment would then be stopped for a period of time; a second baseline project for which it seeks funding will notice). More specifically, it is a design measure of the outcome would be taken, followed provide services and develop initiatives in which project participants are by a second application of the treatment or a in multiple schools, school districts, matched with non-participants based on different treatment. A multiple baseline design and communities throughout the key characteristics that are thought to be addresses concerns about the effects of normal development, timing of the treatment, and amount country. related to the outcome. These of the treatment with treatment-reversal designs by Competitive Preference Priority: For characteristics include, but are not using a varying time schedule for introduction of FY 2011, this priority is a competitive limited to: (1) Prior test scores and other Continued

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Moderate evidence means evidence Another example would be assignment requirements will apply to the FY 2011 from previous studies whose designs of eligible students, teachers, grant competition only. can support causal conclusions (i.e., classrooms, or schools above a certain Program Authority: 20 U.S.C. 7271. studies with high internal validity) but score (‘‘cut score’’) to the treatment Applicable Regulations: The have limited generalizability (i.e., group and assignment of those below Education Department General moderate external validity), or studies the score to the comparison group. Administrative Regulations (EDGAR) in with high external validity but moderate Strong evidence means evidence from 34 CFR Parts 74, 75, 77, 79, 80, 81, 82, internal validity. The following would previous studies whose designs can 84, 85, 86, 97, 98, and 99. constitute moderate evidence: support causal conclusions (i.e., studies (1) At least one well-designed and with high internal validity), and studies II. Award Information well-implemented experimental or that in total include enough of the range Type of Award: Discretionary grants. quasi-experimental study supporting the of participants and settings to support Estimated Available Funds: effectiveness of the practice, strategy, or scaling up to the State, regional, or $6,654,000. program, with small sample sizes or national level (i.e., studies with high Estimated Number of Awards: 1. other conditions of implementation or external validity). The following are examples of strong evidence: Note: The Department is not bound by any analysis that limit generalizability; estimates in this notice. (2) At least one well-designed and (1) More than one well-designed and well-implemented experimental or well-implemented (as defined in this Budget Period: 12 months. quasi-experimental study that does not notice) experimental study (as defined Project Period: Up to 36 months demonstrate equivalence between the in this notice) or well-designed and (subject to availability of funds). intervention and comparison groups at well-implemented (as defined in this program entry but that has no other notice) quasi-experimental study (as Note: The applicant should propose to use the entire amount of available funds major flaws related to internal validity; defined in this notice) that supports the effectiveness of the practice, strategy, or ($6,654,000) during the twelve month budget or period. If additional funds subsequently (3) Correlational research with strong program; or become available, we may make continuation statistical controls for selection bias and (2) One large, well-designed and well- awards. for discerning the influence of internal implemented randomized controlled, factors. multisite trial that supports the III. Eligibility Information National non-profit arts education effectiveness of the practice, strategy, or organization means an organization of program. 1. Eligible Applicants: A national non- national scope that is supported by staff Well-designed and well-implemented profit arts education organization. or affiliates at the State and local levels means, with respect to an experimental 2.a. Cost Sharing or Matching: This and that has a demonstrated history of or quasi-experimental study (as defined program does not require cost sharing or advancing high-quality arts education in this notice), that the study meets the matching. and arts integration for arts educators, What Works Clearinghouse evidence b. Supplement-Not-Supplant: This education leaders, artists, and students standards, with or without reservations program involves supplement-not- through professional development, (see http://ies.ed.gov/ncee/wwc/ supplant funding requirements. Under partnerships, educational programming, references/idocviewer/ section 5551(f)(2) of the ESEA, the and systemic school reform. doc.aspx?docid=19&tocid=1 and in Secretary requires that assistance Quasi-experimental study means an particular the description of ‘‘Reasons provided under this program be used evaluation design that attempts to for Not Meeting Standards’’ at http:// only to supplement, and not to approximate an experimental study (as ies.ed.gov/ncee/wwc/references/ supplant, any other assistance or funds defined in this notice) and can support idocviewer/Doc.aspx?docId=19&tocId= made available from non-Federal causal conclusions (i.e., minimizes 4#reasons. sources for the activities assisted under threats to internal validity, such as Waiver of Proposed Rulemaking: the program. selection bias, or allows them to be Under the Administrative Procedure Act c. Coordination Requirement: Under modeled). Well-designed and well- (5 U.S.C. 553) the Department generally section 5551(f)(1) of the ESEA, the implemented (as defined in this notice) offers interested parties the opportunity Secretary requires that each entity quasi-experimental studies (as defined to comment on proposed priorities, funded under this program coordinate, in this notice) include carefully selection criteria, definitions, and other to the extent practicable, each project or matched comparison group designs (as requirements. Section 437(d)(1) of program carried out with funds awarded defined in this notice), interrupted time GEPA, however, allows the Secretary to under this program with appropriate series designs (as defined in this notice), exempt from rulemaking requirements, activities of public or private cultural or regression discontinuity designs (as regulations governing the first grant agencies, institutions, and defined in this notice). competition under a new or organizations, including museums, arts Regression discontinuity design study substantially revised program authority. education associations, libraries, and means, in part, a quasi-experimental This is the first grant competition for the theaters. study (as defined in this notice) design Arts in Education National Program under section 5551 of the Elementary IV. Application and Submission that closely approximates an Information experimental study (as defined in this and Secondary Education Act of 1965, notice). In a regression discontinuity as amended (20 U.S.C. 7271), and 1. Address to Request Application design, participants are assigned to a therefore qualifies for this exemption. In Package: Carolyn Warren, U.S. treatment or comparison group based on order to ensure timely grant awards, the Department of Education, 400 Maryland a numerical rating or score of a variable Secretary has decided to forgo public Avenue, SW., Room 4W209, unrelated to the treatment such as the comment on the priorities, selection Washington, DC 20202–5900. rating of an application for funding. criteria, definitions, and other Telephone: (202) 205–5443 or by e-mail: requirements under section 437(d)(1) of [email protected]. the treatment and/or treatments of different lengths GEPA. These priorities, selection If you use a telecommunications or intensity. criteria, definitions, and other device for the deaf (TDD), call the

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Federal Relay Service (FRS), toll free, at Order 12372 and the regulations in 34 Avenue, SW., Washington, DC 20202– 1–800–877–8339. CFR part 79. Information about 4260. Individuals with disabilities can Intergovernmental Review of Federal You must show proof of mailing obtain a copy of the application package Programs under Executive Order 12372 consisting of one of the following: in an accessible format (e.g., braille, is in the application package for this (1) A legibly dated U.S. Postal Service large print, audiotape, or computer competition. postmark. diskette) by contacting the program 5. Funding Restrictions: We reference (2) A legible mail receipt with the contact person listed in this section. regulations outlining funding date of mailing stamped by the U.S. 2. Content and Form of Application restrictions in the Applicable Postal Service. Submission: Requirements concerning Regulations section of this notice. (3) A dated shipping label, invoice, or the content of an application, together 6. Data Universal Numbering System receipt from a commercial carrier. (4) Any other proof of mailing with the forms you must submit, are in Number, Taxpayer Identification acceptable to the Secretary of the U.S. the application package for this Number, and Central Contractor competition. Department of Education. Registry: To do business with the If you mail your application through Page Limit: The application narrative Department of Education, you must— (Part III of the application) is where you, the U.S. Postal Service, we do not a. Have a Data Universal Numbering accept either of the following as proof the applicant, address the selection System (DUNS) number and a Taxpayer criteria that reviewers use to evaluate of mailing: Identification Number (TIN); (1) A private metered postmark. your application. We suggest you limit b. Register both your DUNS number (2) A mail receipt that is not dated by the application narrative (Part III) to no and TIN with the Central Contractor the U.S. Postal Service. more than 50 pages, using the following Registry (CCR), the Government’s If your application is postmarked after standards: primary registrant database; • ″ ″ the application deadline date, we will A ‘‘page’’ is 8.5 x 11 , on one side c. Provide your DUNS number and not consider your application. only, with 1″ margins at the top, bottom, TIN on your application; and Note: The U.S. Postal Service does not and both sides. d. Maintain an active CCR registration • Double space (no more than three uniformly provide a dated postmark. Before with current information while your relying on this method, you should check lines per vertical inch) all text in the application is under review by the with your local post office. application narrative, including titles, Department and, if you are awarded a headings, footnotes, quotations, grant, during the project period. b. Submission of Applications by references, and captions, as well as all You can obtain a DUNS number from Hand Delivery. text in charts, tables, figures, and Dun and Bradstreet. A DUNS number If you submit your application by hand delivery, you (or a courier service) graphs. can be created within one business day. • Use a font that is either 12 point or must deliver the original and two copies If you are a corporate entity, agency, larger or no smaller than 10 pitch of your application by hand, on or institution, or organization, you can (characters per inch). before the application deadline date, to obtain a TIN from the Internal Revenue • Use one of the following fonts: the Department at the following address: Service. If you are an individual, you Times New Roman, Courier, Courier U.S. Department of Education, can obtain a TIN from the Internal New, or Arial. Application Control Center, Attention: Revenue Service or the Social Security 3. Submission Dates and Times: (CFDA Number 351F), 550 12th Street, Administration. If you need a new TIN, Applications Available: July 14, 2011. SW., Room 7041, Potomac Center Plaza, Deadline for Transmittal of please allow 2–5 weeks for your TIN to Washington, DC 20202–4260. Applications: August 15, 2011. become active. The CCR registration process may take The Application Control Center accepts Applications for a grant under this hand deliveries daily between 8:00 a.m. five or more business days to complete. competition must be submitted in paper and 4:30:00 p.m., Washington, DC time, If you are currently registered with the format by mail or hand delivery. For except Saturdays, Sundays, and Federal CCR, you may not need to make any information (including dates and times) holidays. about how to submit your application changes. However, please make certain Note for Mail or Hand Delivery of by mail or hand delivery, please refer to that the TIN associated with your DUNS Paper Applications: If you mail or hand section IV.7. Other Submission number is correct. Also note that you deliver your application to the Requirements of this notice. will need to update your CCR Department— We do not consider an application registration on an annual basis. This (1) You must indicate on the envelope that does not comply with the deadline may take three or more business days to and—if not provided by the requirements. complete. Department—in Item 11 of the SF 424 Individuals with disabilities who 7. Other Submission Requirements: the CFDA number, including suffix need an accommodation or auxiliary aid Applications for grants under this letter, if any, of the competition under in connection with the application program must be submitted in paper which you are submitting your process should contact the person listed format by mail or hand delivery. application; and under FOR FURTHER INFORMATION a. Submission of Applications by (2) The Application Control Center CONTACT in section VII of this notice. If Mail. will mail to you a notification of receipt the Department provides an If you submit your application by of your grant application. If you do not accommodation or auxiliary aid to an mail (through the U.S. Postal Service or receive this notification within 15 individual with a disability in a commercial carrier), you must mail the business days from the application connection with the application original and two copies of your deadline date, you should call the U.S. process, the individual’s application application, on or before the application Department of Education Application remains subject to all other deadline date, to the Department at the Control Center at (202) 245–6288. requirements and limitations in this following address: U.S. Department of notice. Education, Application Control Center, V. Application Review Information 4. Intergovernmental Review: This Attention: (CFDA Number 351F), LBJ 1. Selection Criteria: We will use four competition is subject to Executive Basement Level 1, 400 Maryland selection criteria to evaluate

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applications for this competition. media arts, or visual arts, including folk and when these instruments will be Selection criteria (1) Significance, (2) arts. developed; (5) how data will be analyzed; (6) Quality of the project design, and (3) (c) The extent to which the proposed when reports of results and outcomes will be Quality of project services are project will develop and disseminate available; and (7) how the applicant will use instructional materials, including online the information collected through the established in this notice pursuant to evaluation to monitor progress of the funded section 437(d)(1) of GEPA, as explained resources, in multiple arts disciplines project and to provide accountability in the Waiver of Proposed Rulemaking for arts educators and other information both about success at the initial section of this notice. Selection criterion instructional staff. site and about effective strategies for (4) Quality of the project evaluation is (d) The extent to which the proposed replication in other settings. Applicants are from 34 CFR 75.210. project will support arts-based encouraged to devote an appropriate level of The maximum score for each criterion educational programming. resources to project evaluation. is indicated in parentheses. The (e) The extent to which the proposed 2. Review and Selection Process: We maximum score for all of the selection project will provide community and remind potential applicants that in criteria is 100 points. The total national outreach. reviewing applications in any maximum score of an application is 110 (3) Quality of project services (20 discretionary grant competition, the points (100 points under the selection points). The Secretary considers the Secretary may consider, under 34 CFR criteria and an additional 10 points quality of the services to be provided by 75.217(d)(3), the past performance of the under the competitive preference the proposed project. In determining the applicant in carrying out a previous priority). Each criterion also includes quality of the services to be provided by award, such as the applicant’s use of the factors that the reviewers will the proposed project, the Secretary funds, achievement of project consider in determining how well an considers the following factors: objectives, and compliance with grant application meets the criterion. The (a) The extent to which the services to conditions. The Secretary may also notes following the selection criteria are be provided by the proposed project consider whether the applicant failed to provided as guidance to help applicants involve the collaboration of appropriate submit a timely performance report or in preparing their applications, and are partners in order to maximize the submitted a report of unacceptable not required by statute or regulations. effectiveness of project services. quality. The selection criteria are as follows: (b) The extent to which the proposed project will provide services and In addition, in making a competitive (1) Significance (20 points). The grant award, the Secretary also requires Secretary considers the significance of initiatives that will reach students and educators in multiple schools, school various assurances including those the proposed project. In determining the applicable to Federal civil rights laws significance of the proposed project, the districts, and communities throughout the country. that prohibit discrimination in programs Secretary considers the following or activities receiving Federal financial factors: (4) Quality of the project evaluation (20 points). The Secretary considers the assistance from the Department of (a) The national significance of the Education (34 CFR 100.4, 104.5, 106.4, proposed project. quality of the evaluation to be conducted of the proposed project. In 108.8, and 110.23). (b) The extent to which the proposed 3. Special Conditions: Under 34 CFR project is likely to build local capacity determining the quality of the evaluation, the Secretary considers the 74.14 and 80.12, the Secretary may to provide, improve, or expand services impose special conditions on a grant if that address the needs of children and following factors: (a) The extent to which the methods the applicant or grantee is not youth, with special emphasis on serving financially stable; has a history of students from low-income families and of evaluation include the use of objective performance measures that are unsatisfactory performance; has a students with disabilities. financial or other management system (c) The extent to which the applicant clearly related to the intended outcomes of the project and will produce that does not meet the standards in 34 has a history of three or more years of CFR Parts 74 or 80, as applicable; has demonstrated excellence in the areas of quantitative and qualitative data to the extent possible. not fulfilled the conditions of a prior arts education and arts integration on a grant; or is otherwise not responsible. national scale. (b) The extent to which the methods of evaluation will provide performance (2) Quality of the project design (40 VI. Award Administration Information feedback and permit periodic points). The Secretary considers the assessment of progress toward achieving 1. Award Notices: If your application quality of the design of the proposed intended outcomes. is successful, we notify your U.S. project. In determining the quality of the Representative and U.S. Senators and design of the proposed project, the Note: A strong evaluation plan should be send you a Grant Award Notification Secretary considers the following included in the application narrative and (GAN). We may notify you informally, should be used, as appropriate, to shape the factors: also. (a) The extent to which the design of development of the project from the beginning of the grant period. The evaluation If your application is not evaluated or the proposed project is appropriate to, plan should include benchmarks to monitor not selected for funding, we notify you. and will successfully address, the needs progress toward specific project objectives 2. Administrative and National Policy of pre-kindergarten-through-grade-12 and also outcome measures to assess the Requirements: We identify children and youth, with special impact on teaching and learning, or other administrative and national policy emphasis on serving students from low- important outcomes for project participants. requirements in the application package income families and students with More specifically, the plan should identify and reference these and other disabilities. the individual or organization that has agreed requirements in the Applicable (b) The extent to which the proposed to serve as evaluator for the project and Regulations section of this notice. describe the qualifications of that evaluator. project will provide high-quality The plan should describe the evaluation We reference the regulations outlining professional development for pre- design, indicating: (1) What types of data will the terms and conditions of an award in kindergarten-through-grade-12 arts be collected; (2) when various types of data the Applicable Regulations section of educators and other staff who provide will be collected; (3) what methods will be this notice and include these and other instruction in music, dance, drama, used; (4) what instruments will be developed specific conditions in the GAN. The

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GAN also incorporates your approved grant, the Secretary also considers ENVIRONMENTAL PROTECTION application as part of your binding whether the grantee is operating in AGENCY commitments under the grant. compliance with the assurances in its [FRL–9324–4] 3. Reporting: (a) If you apply for a approved application, including those grant under this competition, you must applicable to Federal civil rights laws Notice of a Regional Waiver of Section ensure that you have in place the that prohibit discrimination in programs 1605 (Buy American Requirement) of necessary processes and systems to or activities receiving Federal financial the American Recovery and comply with the reporting requirements assistance from the Department (34 CFR Reinvestment Act of 2009 (ARRA) to in 2 CFR Part 170 should you receive 100.4, 104.5, 106.4, 108.8, and 110.23). the City of Ocean Shores (the City), funding under the competition. This WA does not apply if you have an exception VII. Agency Contact under 2 CFR 170.110(b). AGENCY: Environmental Protection (b) At the end of your project period, FOR FURTHER INFORMATION CONTACT: Agency (EPA). you must submit a final performance Carolyn Warren, U.S. Department of ACTION: Notice. report, including financial information, Education, 400 Maryland Avenue, SW., as directed by the Secretary. If you Room 4W209, Washington, DC 20202– SUMMARY: The Regional Administrator receive a multi-year award, you must 5950. Telephone: (202) 205–5443 or by of EPA Region 10 is hereby granting a submit an annual performance report e-mail: [email protected]. waiver from the Buy American that provides the most current requirements of ARRA Section 1605(a) If you use a TDD, call the FRS, toll performance and financial expenditure under the authority of Section information as directed by the Secretary free, at 1–800–877–8339. 1605(b)(2) [manufactured goods are not under 34 CFR 75.118. The Secretary VIII. Other Information produced in the United States in may also require more frequent sufficient and reasonably available performance reports under 34 CFR Accessible Format: Individuals with quantities and of a satisfactory quality] 75.720(c). For specific requirements on disabilities can obtain this document to the City for the purchase of reporting, please go to http:// and a copy of the application package in Greensand Plus pressure filter media, www.ed.gov/fund/grant/apply/ an accessible format (e.g., braille, large manufactured in Brazil. This is a project appforms/appforms.html. print, audiotape, or computer diskette) specific waiver and only applies to the 4. Performance Measures: Under the on request to the program contact use of the specified products for the Government Performance and Results person listed under FOR FURTHER ARRA project being proposed. Any Act of 1993 (GPRA), the Secretary has INFORMATION CONTACT in section VII of other ARRA recipient that wishes to use established four performance measures this notice. the same product must apply for a to assess the effectiveness of this separate waiver based on project Electronic Access to This Document: program. Projects funded under this specific circumstances. The waiver The official version of this document is competition will be expected to collect applicant states that the project requires and report to the Department data the document published in the Federal the Greensand Plus filter media for use related to these measures. Applications Register. Free Internet access to the in their new shallow aquifer treatment should, but are not required to, discuss official edition of the Federal Register plant. The design specifications of the in the application narrative how they and the Code of Federal Regulations is project require a combination treatment propose to collect these data. The four available via the Federal Digital System process comprised of greensand GPRA performance measures are: (1) at: http://www.gpo.gov/fdsys. At this filtration and MIEX ® treatment. The The total number of students who site you can view this document, as well greensand filtration process will participate in standards-based arts as all other documents of this primarily target the removal of iron and education sponsored by the grantee; (2) Department published in the Federal manganese, whereas the proprietary the number of teachers participating in Register, in text or Adobe Portable MIEX ® process targets removal of the grantee’s program who receive Document Format (PDF). To use PDF dissolved organic carbon and other professional development that is you must have Adobe Acrobat Reader, anionic species. Greensand Plus is sustained and intensive; (3) the total currently used in the City’s existing number of students from low-income which is available free at the site. water treatment plant 1. In 2005, the families who participate in standards- You may also access documents of the City utilized Greensand Plus for their based arts education sponsored by the Department published in the Federal greensand filter media during pilot grantee; and (4) the total number of Register by using the article search testing, and identified that product as students with disabilities who feature at: http:// the desired filter media for the proposed participate in standards-based arts www.federalregister.gov. Specifically, water treatment plant. education sponsored by the grantee. through the advanced search feature at The Regional Administrator is making 5. Continuation Awards: In making a this site, you can limit your search to continuation award, the Secretary may this determination based on the review documents published by the and recommendations of the Drinking consider, under 34 CFR 75.253, the Department. extent to which a grantee has made Water Unit. The City has provided ‘‘substantial progress toward meeting Dated: July 11, 2011. sufficient documentation to support the objectives in its approved James H. Shelton, III, their request. application.’’ This consideration Assistant Deputy Secretary for Innovation and DATES: July 14, 2011. includes the review of a grantee’s Improvement. FOR FURTHER INFORMATION CONTACT: progress in meeting the targets and [FR Doc. 2011–17756 Filed 7–13–11; 8:45 am] Johnny Clark, DWSRF ARRA Program projected outcomes in its approved BILLING CODE 4000–01–P Management Analyst, Drinking Water application, and whether the grantee Unit, Office of Water & Watersheds has expended funds in a manner that is (OWW), (206) 553–0082, U.S. EPA consistent with its approved application Region 10 (OWW–136), 1200 Sixth and budget. In making a continuation Avenue, Suite 900, Seattle, WA 98101.

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SUPPLEMENTARY INFORMATION: In Plus media relate to its performance and Documentation of ARRA compliance accordance with ARRA Section 1605(c), durability. Greensand Plus has a more was provided; however, the ARRA the EPA hereby provides notice that it robust physical structure and is compliance supplied was for a lesser is granting a project waiver of the expected to have a longer service life of greensand material, manufactured in requirements of Section 1605(a) of 10–15 years compared to traditional New Jersey and not Greensand Plus, a Public Law 111–5, Buy American greensand, which typically has 5–8 fact which was overlooked at the time requirements, to the City for purchase of years of service life. Greensand Plus has even though they have variations in non-domestic manufactured Greensand more of an absorptive capacity over their chemical properties. In a letter Plus pressure filter media. The City is traditional media and a lower headloss dated January 28, 2011, Roberts Filter replacing an existing deep aquifer water profile. This contributes to more notified the contractor Pease and Sons treatment plant with a new shallow effective iron and manganese removal, that Roberts had determined based on aquifer water treatment plant. The with less backwashing resulting in communications about material shallow aquifer water supply contains higher average plant capacity. Use of a shipping that Greensand Plus is not levels of iron, manganese, and color traditional media would likely result in manufactured in the United States, but near or exceeding their secondary diminished plant performance and plant is instead, produced by an American maximum contaminant levels, and also capacity de-rating. Based on available company in Brazil and subsequently has detectable levels of hydrogen information, it is unlikely that other imported to the U.S. This was the first sulfide, ammonia, and organic nitrogen, traditional greensand filter media would time they were notified of the fact that as well as relatively high total organic function within the requirement of the Greensand Plus filter media was not carbon. The proposed new shallow project specifications. Additionally, the manufactured in the United States. aquifer treatment plant is designed to City was informed that traditional Because ARRA compliance accommodate an average day demand of greensand filter media is in short supply documentation was solicited and 1 MGD and a maximum day demand of because it is no longer commonly used thought to be in hand, the circumstance 2 MGD. After conducting a pilot plant since the advent of Greensand Plus, of applying for a waiver after the start treatment study and evaluating three which is a superior product. of construction was not foreseen. EPA treatment alternatives, the City selected EPA has also evaluated the City’s has evaluated this information and a combination treatment process request to determine if its submission is recognizes that the responses submitted comprising greensand filtration and considered late or if it could be to the City regarding Buy American MIEX ® treatment. The City previously considered timely, as per the OMB compliance were done so in error. EPA obtained a Buy American waiver, Guidance at 2 CFR 176.120. EPA will will consider the City’s waiver request granted July 24, 2009 for this project for generally regard waiver requests with as a timely request since it was the use of MIEX ® DOC Resin used in respect to components that were reasonably unforeseeable. ® the MIEX filtration process. The specified in the bid solicitation or in a The April 28, 2009 EPA HQ greensand filtration process primarily general/primary construction contact as Memorandum, Implementation of Buy targets removal of iron and manganese, ‘‘late’’ if submitted after the contract American provisions of Public Law ® whereas the proprietary MIEX process date. However, EPA could also 111–5, the ‘‘American Recovery and targets removal of dissolved organic determine that a request be evaluated as Reinvestment Act of 2009’’, defines carbon and other anionic species. timely, though made after the date that ‘‘satisfactory quality’’ as the quality of Greensand Plus media was used by the the contract was signed, if the need for iron, steel or the relevant manufactured City during their pilot testing, consistent a waiver was not reasonably foreseeable. good as specified in the project plans with existing plant greensand If the need for a waiver is reasonably and design. The City has provided operations. The shallow aquifer foreseeable, then EPA could still apply information to the EPA representing treatment plant project will require discretion in these late cases as per the there are no current domestic approximately 900 cubic feet (79,200 OMB Guidance, which says ‘‘the award manufacturers of the Greensand Plus lbs) of Greensand Plus filter media. official may deny the request.’’ For pressure filter media. EPA’s consulting During the City’s recent experience those waiver requests that do not have contractor (Cadmus) reviewed the with Greensand Plus, currently used in a reasonably unforeseeable basis for information provided by the City and their existing water treatment plant 1 lateness, but for which the waiver basis determined that the project process, the City utilized this product is valid and there is no apparent gain by specifications include the option for during greensand filter pilot testing and the ARRA recipient or loss on behalf of traditional greensand filter media as identified that product as the desired the government, then EPA will still well as Greensand Plus and identified media for the proposed water treatment consider granting a waiver. traditional greensand mined and plan. The shallow aquifer raw water In this case, there are no U.S. produced domestically by Inversand supply is a challenging water source manufacturers that meet the City’s Company (Inversand) as an available from a water quality perspective; requirement for Greensand Plus alternative. However, the City provided therefore, an extensive effort was made pressure filter media, which was information from Inversand indicating by the City to pilot a number of selected based on their pilot testing. The that it has permanently reduced processes and to select the most suitable waiver request was submitted after production of traditional greensand as it combination of treatment processes for contract signing; however, it was is no longer commonly used since it effective water treatment. If a traditional reasonably unforeseeable. During the does not perform as well as Greensand greensand filter media, such as design and bid preparation process, this Plus. The City provided information Manganese Greensand, is used, it could product was understood by the indicating that the reduced production introduce uncertainty based on the greensand filter vendor Roberts Filter to by Inversand has resulted in extensive unproven effectiveness of an alternative be manufactured in the United States. A lead time and potential project delays agent. Greensand Plus has a number of request for ARRA compliance for the use of the traditional greensand. properties that set it apart from documentation was sent by Roberts Based on the information provided by traditional greensand media. Key Filter to their filter media supplier CEI Inversand, the project engineers began distinguishing points for Greensand on January 17, 2010. the process of modifying the project

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specifications to indicate that specified in the City’s waiver request of of records; the purposes for which the Greensand Plus be used for the project. February 11, 2011. This supplementary information is maintained; the Ultimately the project specifications information constitutes the detailed retrievability procedures; Routine Use were not modified after the pilot testing written justification required by Section (5); and delete Routine Use (2); and showed Greensand Plus to be the 1605(c) for waivers based on a finding make other edits and revisions as selected filter media for this project under subsection (b). necessary to update the information and because all of the project bids were Authority: Pub. L. 111–5, section 1605. to comply with the requirements of the based on Greensand Plus. Privacy Act. Dated: June 13, 2011. Furthermore, the purpose of the DATES: In accordance with 5 U.S.C. ARRA provisions was to stimulate Dennis J. McLerran, 552a(e)(4) and (e)(11) of the Privacy Act, economic recovery by funding current Regional Administrator, EPA, Region 10. any interested person may submit infrastructure construction, not to delay [FR Doc. 2011–17061 Filed 7–13–11; 8:45 am] written comments concerning the projects that are already shovel ready by BILLING CODE 6560–50–P alteration of this system of records on or requiring entities, like the City, to revise before August 15, 2011. The Office of their design and potentially choose a Information and Regulatory Affairs more costly and less effective project. EXPORT-IMPORT BANK OF THE (OIRA), Office of Management and The implementation of ARRA Buy UNITED STATES Budget (OMB), which has oversight American requirements on such projects responsibility under the Privacy Act to eligible for DWSRF assistance would Sunshine Act Meeting review the system of records, and result in unreasonable delay and thus Congress may submit comments on or displace the ‘‘shovel ready’’ status for ACTION: Notice of a Partially Open before August 23, 2011. The proposed this project. To further delay Meeting of the Board of Directors of the altered system of records will become construction is in direct conflict with Export-Import Bank of the United effective on August 23, 2011 unless the the most fundamental economic States. FCC receives comments that require a purposes of ARRA to create or retain contrary determination. The jobs. TIME AND PLACE: Thursday, July 14, 2011 Commission will publish a document in The Drinking Water Unit has at 9:30 a.m. The meeting will be held at the Federal Register notifying the reviewed this waiver request and has Ex-Im Bank in Room 1143, 811 Vermont public if any changes are necessary. As determined that the supporting Avenue, NW., Washington, DC 20571. required by 5 U.S.C. 552a(r) of the documentation provided by the City is OPEN AGENDA ITEMS: Item No. 1: Privacy Act, the FCC is submitting sufficient to meet the following criteria Resolution honoring the service of Ex- reports on this proposed altered system listed under Section 1605(b) and in the Im Bank’s outgoing Director, Diane to OMB and Congress. April 28, 2009, Implementation of Buy Farrell. ADDRESSES: Address comments to Leslie American provisions of Public Law PUBLIC PARTICIPATION: The meeting will F. Smith, Privacy Analyst, Performance 111–5, the ‘‘American Recovery and be open to public observation for Item Evaluation and Records Management Reinvestment Act of 2009’’ No. 1 only. (PERM), Room 1–C216, Federal Memorandum: FURTHER INFORMATION CONTACT: Office of Communications Commission (FCC), Iron, steel, and the manufactured goods are the Secretary, 811 Vermont Avenue, 445 12th Street, SW., Washington, DC not produced in the United States in NW., Washington, DC 20571, (202) 565– 20554, or via the Internet at sufficient and reasonably available quantities 3957. [email protected]. and of a satisfactory quality. FOR FURTHER INFORMATION CONTACT: Lisa V. Terry, The basis for this project waiver is the Contact Leslie F. Smith, Performance Assistant General Counsel for Administration Evaluation and Records Management authorization provided in Section (Acting). 1605(b)(2), due to the lack of production (PERM), Room 1–C216, Federal of this product in the United States in [FR Doc. 2011–17527 Filed 7–13–11; 8:45 am] Communications Commission (FCC), sufficient and reasonably available BILLING CODE 6690–01–M 445 12th Street, SW., Washington, DC quantities and of a satisfactory quality 20554, (202) 418–0217, or via the in order to meet the City’s design Internet at [email protected]. specifications. The March 31, 2009 FEDERAL COMMUNICATIONS SUPPLEMENTARY INFORMATION: As Delegation of Authority Memorandum COMMISSION required by the Privacy Act of 1974, as provided Regional Administrators with Privacy Act System of Records amended, 5 U.S.C. 552a(e)(4) and the authority to issue exceptions to (e)(11), this document sets forth notice Section 1605 of ARRA within the AGENCY: Federal Communications of the proposed alteration of one system geographic boundaries of their Commission (FCC or Commission). of records maintained by the FCC. The respective regions and with respect to ACTION: Notice; one altered Privacy Act FCC previously gave complete notice of requests by individual assistance system of records. the system of records (FCC/OSP–1, recipients. Having established both a ‘‘Broadband Dead Zone Report and proper basis to specify the particular SUMMARY: Pursuant to subsection (e)(4) Consumer Broadband Test’’) covered good required for this project and that of the Privacy Act of 1974, as amended under this Notice by publication in the this manufactured good was not (Privacy Act), 5 U.S.C. 552a, the FCC Federal Register on April 7, 2010 (75 FR available from a manufacturer in the proposes to alter one system of records, 17738). This notice is a summary of the United States, the City is hereby granted FCC/OSP–1, ‘‘Broadband Dead Zone more detailed information about the a waiver from the Buy American Report and Consumer Broadband Test.’’ proposed altered system of records, requirements of Section 1605(a) of The altered system of records which may be viewed at the location Public Law 111–5 for the purchase of incorporates more details about the given above in the ‘‘ADDRESSES’’ section. Greensand Plus pressure filter media, voluntary fixed and mobile consumer The purposes for altering FCC/OSP–1, manufactured in Brazil, for a shallow broadband test. The FCC will also alter ‘‘Broadband Dead Zone Report and aquifer water treatment plant project the categories of individuals; categories Consumer Broadband Test’’ are to revise

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the categories of individuals; to revise handset location, and unique handset identifcation number. Furthermore, the the categories of records; to the revise identification numbers may be shared information may be retreived and/or purposes for which the information is with FCC software partners as part of aggregated based upon other voluntary maintained; to revise Routine Use (5); to the Consumer Broadband Test fixed and mobile Consumer Broadband delete Routine Use (2); to revise the application. These partners may publish Test variables, such as broadband speed, retrievability procedures; and to make the IP address, mobile handset location, latency, jitter, and packet loss, among other edits and revisions as necessary to unique handset identification numbers, other broadband quality variables. update the information and to comply and broadband performance data, or This notice meets the requirement of with the requirements of the Privacy otherwise make this information documenting the changes to this system Act. available to the public (but the IP of records that the FCC maintains, and The FCC will achieve these purposes address is not associated with a street provides the public, OMB, and Congress by altering this system of records with address). These data may be used to an opportunity to comment. these changes: Revision of the language inform implementation of the National regarding the categories of individuals Broadband Plan, the National FCC/OSP–1 in the system, for clarity and to add that Broadband Map, and other proceedings SYSTEM NAME: the categories of individuals in this related to the provisioning of broadband Broadband Dead Zone Report and system include individuals who services. participate in the Broadband Dead Zone Minor revision to each of the Routine Consumer Broadband Test. Report voluntary survey and individuals Uses to add a title to each use for clarity; SECURITY CLASSIFICATION: Deletion of Routine Use (2) which the who participate in both the fixed and The FCC’s Security Operations Center Commission has determined is mobile versions of the voluntary (SOC) has not assigned a security duplicated by Routine Use (3) and its, Consumer Broadband Test. classification to this system of records. Revision of the language regarding the therefore, redundant; categories of records in the system, for Revision of Routine Use (5) to add the SYSTEM LOCATION: clarity and to add that the categories of Department of Justice (DOJ) and the Office of Strategic Planning (OSP), records in this system include the street Office of Management and Budget Federal Communications Commission address, city, state, zip code, of each (OMB) to the Federal agencies to whom (FCC), 445 12th Street, SW., individual who selects to participate in the Commission may disclose Washington, DC 20554. the Broadband Dead Zone Report information in this system of records voluntary survey and each individual and for the reasons listed: Government- CATEGORIES OF INDIVIDUALS COVERED BY THE who participates in both the fixed and wide Program Management and SYSTEM: mobile versions of the voluntary Oversight—A record from this system of The categories of individuals in this Consumer Broadband Test. The records may be disclosed to General system include individuals who voluntary fixed and mobile Consumer Services Administration (GSA) and to participate in the Broadband Dead Zone Broadband Test also collects the the National Archives and Records Report voluntary survey and individuals ‘‘Internet Protocol (IP) address’’ of each Administration (NARA) for the purpose who participate in both the fixed and user who selects to participate. The of records management inspections mobile versions of the voluntary voluntary fixed and mobile consumer conducted under authority of 44 U.S.C. Consumer Broadband Test. broadband test collects the ‘‘unique 2904 and 2906; to the U.S. Department handset identification number’’ of each of Justice (DOJ) in order to obtain that CATEGORIES OF RECORDS IN THE SYSTEM: individual’s smartphone used to access department’s advice regarding The categories of records in this the test, and collects the location disclosure obligations under the system include the street address, city, reported by each user’s handset Freedom of Information Act; or to the state, zip code, of each individual who (reported as a latitude and longitude Office of Management and Budget selects to participate in the Broadband point) at the moment the user initiates (OMB) in order to obtain that office’s Dead Zone Report voluntary survey and the test. advice regarding obligations under the each individual who participates in Revision of the language regarding the Privacy Act. Such disclosure shall not both the fixed and mobile versions of purposes for which the information is be used to make a determination about the voluntary Consumer Broadband maintained, for clarity and to add that individuals; and Test. The voluntary fixed and mobile the Commission uses the records in this Revision of the language regarding the Consumer Broadband Test also collects system collected from the Broadband policy and practice for retrieving the ‘‘Internet Protocol (IP) address’’ of Dead Zone Report and the voluntary records in the system, for clarity and to each user who selects to participate. The fixed and mobile Consumer Broadband add a fifth and a sixth broadband voluntary fixed and mobile consumer Test to determine the access of US Internet access question so that broadband tests collects the ‘‘unique residents to broadband—cable, DSL, [i]nformation in the Broadband Dead handset identification number’’ of each fiber, mobile wireless, and other Zone Report and voluntary fixed and individual’s smartphone used to access broadband services, and to gather data mobile Consumer Broadband Test the test, and collects the location on the quality of the broadband services system may be retrieved by the reported by each user’s handset being provided. The Consumer responses to the broadband Internet (reported as a latitude and longitude Broadband Test permits users to access questions: (1) Broadband access point) at the moment the user initiates measure the quality of their fixed or (yes/no); (2) broadband service the test. mobile Internet broadband connection. availability (check boxes for types of Individual street addresses, IP broadband services available at an AUTHORITY FOR MAINTENANCE OF THE SYSTEM: addresses, mobile handset location, and individual’s home); (3) the individual’s Broadband Data Improvement Act of unique handset identification numbers home address: Street address, city, state, 2008, Public Law 110–385, Stat 4096 are not made public by the FCC, but and zip code; (4) the individual’s IP § 103(c)(1); American Reinvestment and aggregated or anonymized data from the address; (5) the individual’s reported Recovery Act of 2009 (ARRA), Public database may be made public. handset location; and (6) the Law 111–5, 123 Stat 115 (2009); and Additionally, IP addresses, mobile individual’s unique handset Communications Act, 47 U.S.C. 154(i).

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PURPOSES: (b) The Commission determines that 7. NTIA and State Designated The Commission uses the records in the disclosure is relevant or necessary to Entities—The information collected this system collected from the the litigation. through the Broadband Dead Zone Broadband Dead Zone Report and the 3. Congressional Inquiries—A record Report and voluntary fixed and mobile voluntary fixed and mobile Consumer on an individual in this system of Consumer Broadband Test, including Broadband Test to determine the access records may be disclosed to a the personally identifiable information of U.S. residents to broadband—cable, Congressional office in response to an (PII), may be shared with the National DSL, fiber, mobile wireless, and other inquiry the individual has made to the Telecommunications and Information broadband services, and to gather data Congressional office. Administration (NTIA) and the 56 State on the quality of the broadband services 4. Government-wide Program Designated Entities for the State being provided. The Consumer Management and Oversight—A record Broadband Data & Development Grant Broadband Test permits users to from this system of records may be Program, who are tasked with gathering measure the quality of their fixed or disclosed to General Services broadband availability information that mobile Internet broadband connection. Administration (GSA) and to the is delivered to the FCC and NTIA for Individual street addresses, IP National Archives and Records compilation into the National addresses, mobile handset location, and Administration (NARA) for the purpose Broadband Map. Any PII shared with unique handset identification numbers of records management inspections these entities is disclosed under the are not made public by the FCC, but conducted under authority of 44 U.S.C. rules of the agreement between NTIA aggregated or anonymized data from the 2904 and 2906; to the U.S. Department and the state grantees governing the database may be made public. of Justice (DOJ) in order to obtain that protection of sensitive, protected, or Additionally, IP addresses, mobile department’s advice regarding classified data collected pursuant to the handset location, and unique handset disclosure obligations under the grant program. The NTIA and the state identification numbers may be shared Freedom of Information Act; or to the grantees do not make any PII publicly with FCC software partners as part of Office of Management and Budget available. the Consumer Broadband Test (OMB) in order to obtain that office’s In each of these cases, the FCC will application. These partners may publish advice regarding obligations under the determine whether disclosure of the the IP address, mobile handset location, Privacy Act. Such disclosure shall not records is compatible with the purpose unique handset identification numbers, be used to make a determination about for which the records were collected. and broadband performance data, or individuals. 5. Data Breach—A record from this DISCLOSURE TO CONSUMER REPORTING otherwise make this information system may be disclosed to appropriate AGENCIES: available to the public (but the IP agencies, entities, and persons when (1) None. address is not associated with a street The Commission suspects or has address). These data may be used to confirmed that the security or POLICIES AND PRACTICES FOR STORING, inform implementation of the National confidentiality of information in the RETRIEVING, ACCESSING, RETAINING, AND Broadband Plan, the National system of records has been DISPOSING OF RECORDS IN THE SYSTEM: Broadband Map, and other proceedings compromised; (2) the Commission has STORAGE: related to the provisioning of broadband determined that as a result of the services. The information includes the suspected or confirmed compromise electronic data and records that are ROUTINE USES OF RECORDS MAINTAINED IN THE there is a risk of harm to economic or stored in the FCC’s computer network SYSTEM, INCLUDING CATEGORIES OF USERS AND property interests, identity theft or databases. THE PURPOSES OF SUCH USES: fraud, or harm to the security or Information about individuals in this integrity of this system or other systems RETRIEVABILITY: system of records may routinely be or programs (whether maintained by the Information in the Broadband Dead disclosed under the following Commission or another agency or entity) Zone Report and voluntary fixed and conditions: that rely upon the compromised mobile Consumer Broadband Test 1. Law Enforcement and information; and (3) the disclosure system may be retrieved by the Investigation—Where there is an made to such agencies, entities, and responses to the broadband Internet indication of a violation or potential persons is reasonably necessary to assist access questions: (1)Broadband access violation of a statute, regulation, rule, or in connection with the Commission’s (yes/no); (2) broadband service order, records from this system may be efforts to respond to the suspected or availability (check boxes for types of referred to the appropriate Federal, confirmed compromise and prevent, broadband services available at an state, or local agency responsible for minimize, or remedy such harm. individual’s home); (3) the individual’s investigating or prosecuting a violation 6. Public-Private Partnerships and the home address: street address, city, state, or for implementing or enforcing the USDA Rural Development Agency’s and zip code; (4) the individual’s IP statute, rule, regulation, or order. Telecommunications Program—The address; (5) the individual’s reported 2. Department of Justice, Courts, and information collected through the handset location; and (6) the Adjudicative Bodies—A record from Broadband Dead Zone Report and individual’s unique handset this system of records may be disclosed voluntary fixed and mobile Consumer indentifcation number. Furthermore, the to the Department of Justice (DOJ) or in Broadband Test, with the exception of information may be retreived and/or a proceeding before a court or any personally identifiable information aggregated based upon other voluntary adjudicative body when: (PII), may be shared with public-private fixed and mobile Consumer Broadband (a) The United States, the partnerships and with the Test variables, such as broadband speed, Commission, a component of the Telecommunications Program of the latency, jitter, and packet loss, among Commission, or, when represented by United States Department of Agriculture other broadband quality variables. the government, an employee of the (USDA) Rural Development Agency. Commission is a party to litigation or This sharing regime is described in the SAFEGUARDS: anticipated litigation or has an interest Commission’s Broadband Data Order of Access to the information in the in such litigation, and 2008 (FCC 08–89). Broadband Dead Zone Report or the

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voluntary fixed and mobile Consumer RECORD SOURCE CATEGORIES: the offices of the Board of Governors. Broadband Test database, which is The sources for the information in Interested persons may express their housed in the FCC’s computer network this system are the Broadband Dead views in writing to the Reserve Bank databases, is restricted to authorized Zone Report survey respondents and indicated for that notice or to the offices supervisors and staff in the Office of voluntary fixed and mobile Consumer of the Board of Governors. Comments Strategic Planning (OSP) and the Broadband Test participants. must be received not later than July 29, Information Technology Center’s (ITC) 2011. Planning and Support Group, who EXEMPTIONS CLAIMED FOR THE SYSTEM: A. Federal Reserve Bank of Chicago maintain these computer databases. None. (Colette A. Fried, Assistant Vice Additionally, staff of the National Federal Communications Commission. President) 230 South LaSalle Street, Broadband Map may be granted access Marlene H. Dortch, Chicago, Illinois 60690–1414: 1. David E. Kirschner and Margaret to this data. Other FCC employees and Secretary. Kirschner, as co-trustees of the Henry C. contractors may be granted access on a [FR Doc. 2011–17775 Filed 7–13–11; 8:45 am] ‘‘need-to-know’’ basis. The FCC’s Kirschner Trust B1, and David E. BILLING CODE 6712–01–P computer network databases are Kirschner and Margaret Kirschner, protected by the FCC’s security individually and as co-trustees of the protocols, which include controlled Henry C. Kirschner Trust A2, acting in FEDERAL ELECTION COMMISSION access, passwords, and other security concert with The Noble Foundation, Philip and Cheryl Kirschner, Khajha features. Information resident on the Sunshine Act Notice database servers is backed-up routinely Kirschner, Pamela Kirschner Bolduc, onto magnetic media. Back-up tapes are AGENCY: Federal Election Commission. and the Mary C. Kirschner 2007 Trust with David E. Kirschner acting as stored on-site and at a secured, off-site DATE AND TIME: Tuesday, July 19, 2011, trustee; to acquire 25 percent or more of location. at 10 a.m. the voting shares of Town and Country RETENTION AND DISPOSAL: PLACE: 999 E Street, NW., Washington, Financial Corporation, Springfield, The information in this system is DC. Illinois, and thereby indirectly acquire limited to electronic files, records, and STATUS: This Meeting Will Be Closed to control of Town and Country Bank, data, which pertains to the Dead Zone the public. Springfield, Illinois, and Logan County Report, which includes: ITEMS TO BE DISCUSSED: Compliance Bank, Lincoln, Illinois. (1) The information obtained from matters pursuant to 2 U.S.C. 437g. Board of Governors of the Federal Reserve individuals who participated in the Audits conducted pursuant to 2 System, July 11, 2011. Consumer Information survey; and U.S.C. 437g, § 438(b), and Title 26, Robert deV. Frierson, (2) The information obtained from U.S.C. Deputy Secretary of the Board. individuals who participated in the Matters concerning participation in civil actions or proceedings or [FR Doc. 2011–17706 Filed 7–13–11; 8:45 am] voluntary fixed and mobile Consumer BILLING CODE 6210–01–P Broadband Test. arbitration. Until the National Archives and Internal personnel rules and Records Administration (NARA) procedures or matters affecting a particular employee. FEDERAL RETIREMENT THRIFT approves the retention and disposal INVESTMENT BOARD schedule, these records will be treated * * * * * as permanent. PERSON TO CONTACT FOR INFORMATION: Sunshine Act; Notice of Meeting Judith Ingram, Press Officer, Telephone: SYSTEM MANAGER(S) AND ADDRESS(ES): (202) 694–1220. TIME AND DATE: 9 a.m. (EST) July 18, Address inquiries to the Office of 2011. Shelley E. Garr, Strategic Planning (OSP), Federal PLACE: 4th Floor Conference Room, Communications Commission (FCC), Deputy Secretary of the Commission. 1250 H Street, NW., Washington, DC. 445 12th Street, SW., Washington, DC [FR Doc. 2011–17910 Filed 7–12–11; 4:15 pm] STATUS: Open. 20554. BILLING CODE 6715–01–P MATTERS TO BE CONSIDERED: NOTIFICATION PROCEDURE: 1. Approval of the minutes of the June Address inquiries to the Office of 23, 2011 Board member meeting. FEDERAL RESERVE SYSTEM 2. Thrift Savings Plan activity report by Strategic Planning (OSP), Federal the Executive Director. Communications Commission (FCC), Change in Bank Control Notices; a. Monthly Performance Activity 445 12th Street, SW., Washington, DC Acquisitions of Shares of a Bank or Report. 20554. Bank Holding Company b. Legislative Report. 3. Quarterly Reports. RECORD ACCESS PROCEDURES: The notificants listed below have a. Investment Policy Report. Address inquiries to the Office of applied under the Change in Bank b. Vendor Financial Report. Strategic Planning (OSP), Federal Control Act (12 U.S.C. 1817(j)) and 4. Budget Estimate for Fiscal Year 2012. § 225.41 of the Board’s Regulation Y (12 Communications Commission (FCC), CONTACT PERSON FOR MORE INFORMATION: 445 12th Street, SW., Washington, DC CFR 225.41) to acquire shares of a bank Thomas J. Trabucco, Director, Office of 20554. or bank holding company. The factors External Affairs, (202) 942–1640. that are considered in acting on the CONTESTING RECORD PROCEDURES: notices are set forth in paragraph 7 of Dated: July 11, 2011. Address inquiries to the Office of the Act (12 U.S.C. 1817(j)(7)). Thomas K. Emswiler, Strategic Planning (OSP), Federal The notices are available for General Counsel, Federal Retirement Thrift Communications Commission (FCC), immediate inspection at the Federal Investment Board. 445 12th Street, SW., Washington, DC Reserve Bank indicated. The notices [FR Doc. 2011–17820 Filed 7–12–11; 11:15 am] 20554. also will be available for inspection at BILLING CODE 6760–01–P

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DEPARTMENT OF HEALTH AND 907. The revised funding authority PPHF will allow them to expand and HUMAN SERVICES language will read: sustain their existing tracking networks, —This program is authorized under utilize tracking data available on Centers for Disease Control and Sections 311 and 317(k)(2) of the networks for potential public health Prevention Public Health Service Act, [42 U.S.C. assessments which is consistent with Sections 243 and 247b(k)(2)], as the purpose of the PPHF, as stated Notice of Intent To Award Affordable amended, and the Patient Protection above, and to provide for an expanded Care Act (ACA) Funding, EH09–907 and Affordable Care Act (ACA), and sustained national investment in AGENCY: Centers for Disease Control and Section 4002 [42 U.S.C. 300u–11]. prevention and public health programs. Prevention (CDC), Department of Health DATES: The effective date for this action Further, the Secretary allocated funds to and Human Services (HHS). is the date of publication of this Notice CDC, pursuant to the PPHF, for the types of activities this FOA is designed ACTION: Notice. and remains in effect until the expiration of the project period of the to carry out. SUMMARY: This notice provides public ACA funded applications. Dated: June 30, 2011. announcement of CDC’s intent to award FOR FURTHER INFORMATION CONTACT: Tanja Popovic, Affordable Care Act (ACA) Elmira Benson, Acting Deputy Director, Deputy Associate Director for Science, appropriations to the following 7 Procurement and Grants Office, Centers Centers for Disease Control and Prevention. grantees: Colorado, Iowa, Kansas, for Disease Control and Prevention, [FR Doc. 2011–17661 Filed 7–13–11; 8:45 am] Louisiana, Minnesota, South Carolina, 2920 Brandywine Road, Atlanta, GA BILLING CODE 4163–18–P and Vermont to develop and implement 30341, telephone (770) 488–2802, e-mail their Tracking Networks. These [email protected]. activities are proposed by the above- SUPPLEMENTARY INFORMATION: On March DEPARTMENT OF HEALTH AND mentioned grantees in their FY 2011 23, 2010, the President signed into law HUMAN SERVICES applications submitted under funding the Affordable Care Act (ACA), Public opportunity EH09–907, ‘‘National Law 111–148. The ACA is designed to Food and Drug Administration Environmental Public Health Tracking improve and expand the scope of health Program—Network Implementation care coverage for Americans. Cost [Docket No. FDA–2011–N–0099] (EPHT),’’ Catalogue of Federal Domestic savings through disease prevention is an Assistance Number (CFDA): 93.070. important element of this legislation Agency Information Collection Approximately $4,920,000 in ACA and the ACA has established a Activities; Submission for Office of funding will be awarded to the grantees Prevention and Public Health Fund Management and Budget Review; for network expansion and (PPHF) for this purpose. Specifically, Comment Request; Followup Study for enhancement. Funding is appropriated the legislation states in Section 4002 Infant Feeding Practices Study II under the Affordable Care Act (Pub. L. that the PPHF is to ‘‘provide for 111–148), Section 4002 [42 U.S.C. AGENCY: Food and Drug Administration, expanded and sustained national HHS. 300u–11]; (Prevention and Public investment in prevention and public ACTION: Notice. Health Fund). health programs to improve health and Accordingly, CDC adds the following help restrain the rate of growth in SUMMARY: information to the previously published The Food and Drug private and public sector health care Administration (FDA) is announcing funding opportunity announcement of costs.’’ The ACA and the Prevention and EH09–907: that a proposed collection of Public Health Fund make improving information has been submitted to the —Authority: Sections 311 and 317(k)(2) public health a priority with Office of Management and Budget of the Public Health Service Act, [42 investments to improve public health. (OMB) for review and clearance under U.S.C. Sections 243 and 247b(k)(2)] as The PPHF states that the Secretary the Paperwork Reduction Act of 1995. amended, and the Patient Protection shall transfer amounts in the Fund to DATES: Fax written comments on the and Affordable Care Act (ACA), accounts within the Department of collection of information by August 15, Section 4002 [42 U.S.C. 300u–11]. Health and Human Services to increase 2011. —CFDA #: 93.538 Affordable Care Act— funding, over the fiscal year 2008 level, National Environmental Public Health for programs authorized by the Public ADDRESSES: To ensure that comments on Tracking Program—Network Health Service Act, for prevention, the information collection are received, Implementation. wellness and public health activities OMB recommends that written comments be faxed to the Office of Award Information: including prevention research and Information and Regulatory Affairs, Type of Award: Non-Competing health screenings, such as the OMB, Attn: FDA Desk Officer, FAX: Continuation Cooperative Agreement. Community Transformation Grant Program, the Education and Outreach 202–395–7285, or e-mailed to Approximate Total Current Fiscal _ Year ACA Funding: $4,920,000. Campaign for Preventative Benefits, and oira [email protected]. All Anticipated Number of Awards: 7. Immunization Programs. comments should be identified with the Fiscal Year Funds: 2011. The ACA legislation affords an OMB control number 0910–New and Anticipated Award Date: August 1, important opportunity to advance title ‘‘Followup Study for Infant Feeding 2011. public health across the lifespan and to Practices Study II.’’ Also include the Application Selection Process: improve public health by supporting the FDA docket number found in brackets Funding will be awarded to Tracking Network. This network builds in the heading of this document. applicants based on results from on ongoing efforts within the public FOR FURTHER INFORMATION CONTACT: successful past performance review. health and environmental sectors to Denver Presley, Jr., Office of Information Funding Authority: improve health tracking, hazard Management, Food and Drug CDC will add the ACA Authority to monitoring and response capacity. Administration, 1350 Piccard Dr., PI50– that which is reflected in the published Therefore, increasing funding available 400B, Rockville, MD 20850, 301–796– Funding Opportunity CDC–RFA–EH09– to applicants under this FOA using the 3793.

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SUPPLEMENTARY INFORMATION: In allergy and childhood overweight and deficit disorder, developmental delay, compliance with 44 U.S.C. 3507, FDA obesity, in addition to resistance to anxiety problems, depression, or has submitted the following proposed infection and other health and asthma; the child’s social development; collection of information to OMB for development outcomes. The results of the child’s family medical history; the review and clearance. the study will not be used to develop mother’s height and weight, physical Followup Study for Infant Feeding population estimates. activity, depression, pregnancies Practices Study II (OMB Control The data will be collected by a mailed subsequent to the sample child and Number 0910—New) questionnaire from most respondents whether subsequent children were and by telephone from those who do not breastfed, and employment conditions; I. Background respond to the mailed questionnaire. the mother’s or child’s participation in FDA is planning to conduct a survey The study will focus on the following certain government programs; and the of the mothers who participated in the types of information: The child’s child’s potential exposure to certain Infant Feeding Practices Study II (IFPS consumption of various food groups; the environmental contaminants including II) (Ref. 1). The IFPS II sample was child’s other consumption practices cigarette smoke and pesticides. drawn from a commercial consumer (such as how often the child eats dinner Although all sample members were opinion panel, and so participants are with a parent and how often he or she consumer opinion panel members when expected to be easier to re-contact than eats from fast food restaurants); the the IFPS II was conducted, many will no would be the case for a random sample mother’s control over the child’s eating longer participate on the panel. of the population. Some participants patterns; the child’s physical activity Therefore, a demographic questionnaire will still be panel members. The and time spent watching a screen (TV or will be mailed to respondents who are purpose of the study is to enhance computer); the child’s sleep patterns; no longer a panel member to update FDA’s understanding of the associations extent of the child’s cognitive current demographic information. between infant feeding practices and stimulation at home; the child’s height Participation in the study is voluntary. diet quality, food allergy, overweight and weight; the child’s visits to a dentist In the Federal Register of March 1, and obesity, and other health and and number of cavities; number of the 2011 (76 FR 11251), FDA published a development outcomes in young child’s recent physician visits; number 60-day notice requesting public children. of various types of infections the child comment on the proposed collection of The study results will be used to help had in the past year; whether the child information. No comments were the Agency to understand the possible has various health conditions including received. role of infant feeding practices in the digestive problems, eczema, food FDA estimates the burden of this development and progression of food allergy, respiratory allergy, attention collection of information as follows:

TABLE 1—ESTIMATED ANNUAL REPORTING BURDEN 1

Number of re- Portion of study Number of sponses per Total annual Average burden per Total hours respondents respondent responses response

Pilot study mailed questionnaire ...... 91 1 91 0.42 (25 minutes) ...... 38 Pilot study telephone interview ...... 9 1 9 0.42 (25 minutes) ...... 4 Main study mailed questionnaire ...... 1,538 1 1,538 0.33 (20 minutes) ...... 508 Main study telephone interview ...... 522 1 522 0.33 (20 minutes) ...... 172 Demographic questionnaire ...... 1,380 1 1,380 0.08 (5 minutes) ...... 110

Total ...... 832 1 There are no capital costs or operating and maintenance costs associated with this collection of information.

To refine the questionnaire used in that 1,538 respondents will return it and II. References the study, a pilot study will be that it will take an average of 20 minutes conducted with 100 participants, 91 by (0.33 hours) to complete the The following reference has been mailed questionnaire and 9 by questionnaire, for a total of 508 hours. placed on display in the Division of telephone interview. We estimate that it An additional 522 mothers are expected Dockets Management (see ADDRESSES) will take a respondent 25 minutes (0.42 to complete the telephone interview of and may be seen by interested persons hours) to complete the survey and 20 minutes (0.33 hours) for a total of 172 between 9 a.m. and 4 p.m., Monday debriefing questions by either method hours. Sample members who are no through Friday. for a total of 38 hours for the mailed and longer a panel member will be asked to 1. Fein, Sara B., Judith Labiner-Wolfe, 4 hours for the interview pretest. The complete a questionnaire to update their Katherine Shealy, et al., ‘‘Infant Feeding sample for the pilot study will be panel demographic information. An estimated Practices Study II: Study Methods,’’ members who are mothers of 6-year-old 1,380 participants will return the Pediatrics 2008; 122(suppl 2): S28–S35. children and who did not participate in demographic questionnaire, which will the IFPS II. Dated: July 7, 2011. require 5 minutes (0.08 hours) to Leslie Kux, All IFPS II participants who complete for a total of 110 hours. Thus, Acting Assistant Commissioner for Policy. completed at least two surveys after the total estimated burden is 832 hours. their infants were born and for whom FDA’s burden estimate is based on prior [FR Doc. 2011–17676 Filed 7–13–11; 8:45 am] current contact information can be experience with consumer surveys that BILLING CODE 4160–01–P found will be sent the mailed are similar to this proposed data questionnaire. This is expected to be collection. about 2,562 participants. We estimate

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DEPARTMENT OF HEALTH AND collection of information to OMB for maintenance, calibration, and testing HUMAN SERVICES review and clearance. records; (4) documentation of feed and water analyses, and animal treatments; Food and Drug Administration Good Laboratory Practice Regulations for Nonclinical Studies—21 CFR Part (5) test article accountability records; [Docket No. FDA–2011–N–0075] 58 (OMB Control Number 0910–0119)— and (6) study documentation and raw Extension data. Agency Information Collection The information collected under GLP Activities; Submission for Office of Sections 409, 505, 512, and 515 of the Federal Food, Drug, and Cosmetic Act regulations is generally gathered by Management and Budget Review; testing facilities routinely engaged in Comment Request; Good Laboratory (21 U.S.C. 348, 355, 360b, and 360e) and related statutes require manufacturers of conducting toxicological studies and is Practice Regulations for Nonclinical used as part of an application for a Studies food additives, human drugs and biological products, animal drugs, and research or marketing permit that is AGENCY: Food and Drug Administration, medical devices to demonstrate the voluntarily submitted to FDA by HHS. safety and utility of their product by persons desiring to market new products. The facilities that collect this ACTION: Notice. submitting applications to FDA for research or marketing permits. Such information are typically operated by SUMMARY: The Food and Drug applications contain, among other large entities, e.g., contract laboratories, Administration (FDA) is announcing important items, full reports of all sponsors of FDA-regulated products, that a proposed collection of studies done to demonstrate product universities, or government agencies. information has been submitted to the safety in man and/or other animals. In Failure to include the information in a Office of Management and Budget order to ensure adequate quality control filing to FDA would mean that Agency (OMB) for review and clearance under for these studies and to provide an scientific experts could not make a valid the Paperwork Reduction Act of 1995. adequate degree of consumer protection, determination of product safety. FDA DATES: Fax written comments on the the Agency issued good laboratory receives, reviews, and approves collection of information by August 15, practice (GLP) regulations. The hundreds of new product applications 2011. regulations specify minimum standards each year based on information ADDRESSES: To ensure that comments on for the proper conduct of safety testing received. The recordkeeping the information collection are received, and contain sections on facilities, requirements are necessary to document OMB recommends that written personnel, equipment, standard the proper conduct of a safety study, to comments be faxed to the Office of operating procedures (SOPs), test and assure the quality and integrity of the Information and Regulatory Affairs, control articles, quality assurance, resulting final report, and to provide OMB, Attn: FDA Desk Officer, Fax: 202– protocol and conduct of a safety study, adequate proof of the safety of regulated 395–7285, or e-mailed to records and reports, and laboratory products. FDA conducts onsite audits of [email protected]. All disqualification. records and reports during its comments should be identified with the The GLP regulations contain inspections of testing laboratories to OMB control number 0910–0119. Also requirements for the reporting of the verify reliability of results submitted in include the FDA docket number found results of quality assurance unit applications. in brackets in the heading of this inspections, test and control article The likely respondents collecting this document. characterization, testing of mixtures of information are contract laboratories, test and control articles with carriers, FOR FURTHER INFORMATION CONTACT: sponsors of FDA-regulated products, and an overall interpretation of universities, or government agencies. Juanmanuel Vilela, Office of nonclinical laboratory studies. The GLP Information Management, Food and regulations also contain recordkeeping In the Federal Register of February Drug Administration, 1350 Piccard Dr., requirements relating to the conduct of 16, 2011 (76 FR 9025), FDA published PI50–400B, Rockville, MD 20850, 301– safety studies. Such records include: (1) a 60-day notice requesting public 796–7651, Personnel job descriptions and comment on the proposed collection of [email protected]. summaries of training and experience; information. No comments were SUPPLEMENTARY INFORMATION: In (2) master schedules, protocols and received. compliance with 44 U.S.C. 3507, FDA amendments thereto, inspection reports, FDA estimates the burden of this has submitted the following proposed and SOPs; (3) equipment inspection, collection of information as follows:

TABLE 1—ESTIMATED ANNUAL REPORTING BURDEN 1

Number of 21 CFR Section Number of responses per Total annual Average burden Total hours respondents respondent responses per response

58.35(b)(7) ...... 300 60 .25 18,075 1 18,075 58.185 ...... 300 60 .25 18,075 27 .65 499,774

Total ...... 517,849 1 There are no capital costs or operating and maintenance costs associated with this collection of information.

TABLE 2—ESTIMATED ANNUAL RECORDKEEPING BURDEN 1

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

58.29(b) ...... 300 20 6,000 0 .21 1,260

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TABLE 2—ESTIMATED ANNUAL RECORDKEEPING BURDEN 1—Continued

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

58.35(b)(1) to (b)(6) and (c) ...... 300 270.76 81,228 3 .36 272,926 58.63(b) and (c) ...... 300 60 18,000 0 .09 1,620 58.81(a) to (c) ...... 300 301.8 90,540 0.14 12,676 58.90(c) and (g) ...... 300 62 .7 18,810 0.13 2,445 58.105(a) and (b) ...... 300 5 1,500 11 .8 17,700 58.107(d) ...... 300 1 300 4 .25 1,275 58.113(a) ...... 300 15 .33 4,599 6 .8 31,273 58.120 ...... 300 15 .38 4,614 32.7 150,878 58.195 ...... 300 251.5 75,450 3.9 294,255

Total ...... 786,308 1 There are no capital costs or operating and maintenance costs associated with this collection of information.

Dated: July 11, 2011. Information Management, Food and problems have contaminated biological Leslie Kux, Drug Administration, 1350 Piccard Dr., products in the past. AER reports are Acting Assistant Commissioner for Policy. PI50–400B, Rockville, MD 20850, 301– obtained from a variety of sources, [FR Doc. 2011–17736 Filed 7–13–11; 8:45 am] 796–7651, including manufacturers, patients, BILLING CODE 4160–01–P [email protected]. physicians, foreign regulatory Agencies, and clinical investigators. Identification SUPPLEMENTARY INFORMATION: In of new and unexpected safety issues compliance with 44 U.S.C. 3507, FDA through the analysis of the data in the DEPARTMENT OF HEALTH AND has submitted the following proposed HUMAN SERVICES AER system contributes directly to collection of information to OMB for increased public health protection. For Food and Drug Administration review and clearance. example, evaluation of these safety issues enables FDA to take focused [Docket No. FDA–2011–N–0231] Adverse Experience Reporting For Licensed Biological Products; and regulatory action. Such action may Agency Information Collection General Records—21 CFR Part 600 include, but is not limited to, important Activities; Submission for Office of (OMB Control Number 0910–0308)— changes to the product’s labeling (such Management and Budget Review; Extension as adding a new warning), coordination with manufacturers to ensure adequate Comment Request; Adverse Under the Public Health Service Act Experience Reporting for Licensed corrective action is taken, and removal (42 U.S.C. 262), FDA may only approve of a biological product from the market Biological Products; and General a biologics license application for a Records when necessary. biological product that is safe, pure, and Section 600.80(c)(1) requires licensed AGENCY: Food and Drug Administration, potent. When a biological product is manufacturers or any person whose HHS. approved and enters the market, the name appears on the label of a licensed product is introduced to a larger patient ACTION: Notice. biological product to report each population in settings different from adverse experience that is both serious SUMMARY: The Food and Drug clinical trials. New information and unexpected, whether foreign or Administration (FDA) is announcing generated during the postmarketing domestic, as soon as possible but in no that a proposed collection of period offers further insight into the case later than 15 calendar days of information has been submitted to the benefits and risks of the product, and initial receipt of the information by the Office of Management and Budget evaluation of this information is licensed manufacturer. These reports (OMB) for review and clearance under important to insure its safe use. FDA are known as postmarketing 15-day alert the Paperwork Reduction Act of 1995. issued the Adverse Experience reports. This section also requires DATES: Fax written comments on the Reporting (AER) requirements in part licensed manufacturers to submit any collection of information by August 15, 600 (21 CFR part 600) to enable FDA to followup reports within 15 calendar 2011. take actions necessary for the protection days of receipt of new information or as of the public health in response to requested by FDA, and if additional ADDRESSES: To ensure that comments on reports of adverse experiences related to information is not obtainable to the information collection are received, licensed biological products. The maintain records of the unsuccessful OMB recommends that written primary purpose of FDA’s AER system steps taken to seek additional comments be faxed to the Office of is to identify potentially serious safety information. In addition, this section Information and Regulatory Affairs, problems with licensed biological requires a person who submits an OMB, Attn: FDA Desk Officer, FAX: products. Although premarket testing adverse action report to the licensed 202–395–7285, or e-mailed to _ discloses a general safety profile of a manufacturer rather than FDA to oira [email protected]. All biological product’s comparatively maintain a record of this action. Section comments should be identified with the common adverse effects, the larger and 600.80(e) requires licensed OMB control number 0910–0308. Also more diverse patient populations manufacturers to submit a 15-day alert include the FDA docket number found exposed to the licensed biological report for an adverse experience in brackets in the heading of this product provides the opportunity to obtained from a postmarketing clinical document. collect information on rare, latent, and study only if the licensed manufacturer FOR FURTHER INFORMATION CONTACT: long-term effects. In addition, concludes that there is a reasonable Juanmanuel Vilela, Office of production and/or distribution possibility that the product caused the

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adverse experience. Section 600.80(c)(2) Manufacturers of biological products licensed biological product. Under table requires licensed manufacturers to for human use must keep records of 1 of this document, the number of report each adverse experience not each step in the manufacture and respondents is based on the estimated reported in a postmarketing 15-day alert distribution of a product including any number of manufacturers that are report at quarterly intervals, for 3 years recalls. These recordkeeping subject to those regulations or that from the date of issuance of the requirements serve preventative and submitted the required information to biologics license, and then at annual remedial purposes by establishing the Center for Biologics Evaluation and intervals. The majority of these periodic accountability and traceability in the Research and Center for Drugs reports are submitted annually since a manufacture and distribution of Evaluation and Research, FDA, in fiscal large percentage of currently licensed products. These requirements also year (FY) 2010. Based on information biological products have been licensed enable FDA to perform meaningful obtained from the FDA’s database longer than 3 years. Section 600.80(i) inspections. Section 600.12 requires, system, there were 108 licensed requires licensed manufacturers to among other things, that records must biologics manufacturers. This number maintain for a period of 10 years records be made, concurrently with the excludes those manufacturers who of all adverse experiences known to the performance of each step in the produce Whole Blood or components of licensed manufacturer, including raw manufacture and distribution of Whole Blood and in vitro diagnostic data and any correspondence relating to products. These records must be licensed products, because of the the adverse experiences. Section 600.81 retained for no less than 5 years after the exemption under § 600.80(k). The total requires licensed manufacturers to records of manufacture have been annual responses are based on the submit, at an interval of every 6 months, completed or 6 months after the latest number of submissions received by FDA information about the quantity of the expiration date for the individual in FY 2010. There were an estimated product distributed under the biologics product, whichever represents a later 86,583 15-day Alert reports, 57,300 license, including the quantity date. In addition, under § 600.12, periodic reports, and 349 lot distributed to distributors. These manufacturers must maintain records distribution reports submitted to FDA. distribution reports provide FDA with relating to the sterilization of equipment The number of 15-day alert reports for important information about products and supplies, animal necropsy records, post marketing studies under § 600.80(e) distributed under biologics licenses, and records in cases of divided is included in the total number of 15- including the quantity, certain lot manufacturing responsibility with day alert reports. FDA received 21 numbers, labeled date of expiration, the respect to a product. Under requests for waivers under § 600.90, of fill lot numbers for the total number of § 600.12(b)(2), manufacturers are also which 19 were granted. The hours per dosage units of each strength or potency required to maintain complete records response are based on FDA experience. distributed (e.g., 50,000 per 10-milliliter pertaining to the recall from distribution The burden hours required to complete vials), and date of release. FDA may of any product. Furthermore, § 610.18(b) the MedWatch Form for § 600.80(c)(1), require the licensed manufacturer to (21 CFR 610.18(b)) requires, in part, that (e), and (f) are reported under OMB submit distribution reports under this the results of all periodic tests for control number 0910–0291. section at times other than every 6 verification of cultures and In the Federal Register of April 21, months. Under § 600.90, a licensed determination of freedom from 2011 (77 FR 22401), FDA published a manufacturer may submit a waiver extraneous organisms be recorded and 60-day notice requesting public request for any requirements that apply maintained. comment on the proposed collection of to the licensed manufacturer under Respondents to this collection of information. No comments were §§ 600.80 and 600.81. A waiver request information include manufacturers of received from the public. submitted under § 600.90 must include biological products and any person FDA estimates the burden of this supporting documentation. whose name appears on the label of a collection of information as follows:

TABLE 1—ESTIMATED ANNUAL REPORTING BURDEN 1

Number of Average 21 CFR Section Number of responses per Total annual burden per Total hours respondents respondent responses response

600.80(c)(1) and 600.80(e) ...... 108 801 .69 86,583 1 86,583 600.80(c)(2) ...... 108 530.55 57,300 28 1,604,400 600.81 ...... 108 3.23 349 1 349 600.90 ...... 21 1 21 1 21

Total ...... 1,691,353 1 There are no capital costs or operating and maintenance costs associated with this collection of information.

Under table 2 of this document, the listed for § 600.12(a) through (e) annual average of lots released in FY number of respondents is based on the excluding (b)(2) is estimated to be 131. 2010 (6,752), number of recalls made number of manufacturers subject to This number excludes manufacturers of (1,881), and total number of adverse those regulations. Based on information blood and blood components because experience reports received (143,883) in obtained from FDA’s database system, their burden hours for recordkeeping FY 2010. The hours per record are based there were 304 licensed manufacturers have been reported under § 606.160 in on FDA experience. of biological products in FY 2010. OMB control number 0910–0116. The FDA estimates the burden of this However, the number of recordkeepers total annual records is based on the recordkeeping as follows:

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TABLE 2—ESTIMATED ANNUAL RECORDKEEPING BURDEN 1

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

600.12 2 ...... 131 51 .54 6,752 32 216,064 600.12 (b)(2) ...... 304 6.19 1,881 24 45,144 600.80(c)(1) and 600.80(i) ...... 108 1,332 .25 143,883 1 143,883

Total ...... 405,091 1 There are no capital costs or operating and maintenance costs associated with this collection of information. 2 The recordkeeping requirements in § 610.18(b) are included in the estimate for § 600.12.

Dated: July 8, 2011. safety and effectiveness of the Administration, Bldg. 66, rm. 5676, Leslie Kux, therapeutic product. This draft guidance 10903 New Hampshire Ave., Silver Acting Assistant Commissioner for Policy. is not final, nor is it in effect at this Spring, MD 20993, 301–796–4664; or [FR Doc. 2011–17675 Filed 7–13–11; 8:45 am] time. Christopher Leptak, Office of BILLING CODE 4160–01–P DATES: Although you can comment on Translational Sciences, Center for Drug any guidance at any time (see 21 CFR Evaluation and Research, Food and 10.115(g)(5)), to ensure that the Agency Drug Administration, Bldg. 22, rm. DEPARTMENT OF HEALTH AND considers your comment on this draft 5102, 10903 New Hampshire Ave., HUMAN SERVICES guidance before it begins work on the Silver Spring, MD 20993, 301–796– final version of the guidance, submit 0017; or Stephen Ripley, Center for Food and Drug Administration either electronic or written comments Biologics Evaluation and Research [Docket No. FDA–2011–D–0215] on the draft guidance by September 12, (HFM–17), Food and Drug 2011. Administration, 1401 Rockville Pike, Draft Guidance for Industry and FDA ADDRESSES: Submit written requests for suite 200N, Rockville, MD 20852, 301– Staff on In Vitro Companion Diagnostic single copies of the draft guidance 827–6210. Devices; Availability document entitled ‘‘In Vitro Companion SUPPLEMENTARY INFORMATION: Diagnostic Devices’’ to the Division of AGENCY: Food and Drug Administration, I. Background HHS. Small Manufacturers, International, and Consumer Assistance, Center for The Food and Drug Administration ACTION: Notice. Devices and Radiological Health, Food (FDA) is announcing the availability of SUMMARY: The Food and Drug and Drug Administration, 10903 New a draft guidance for industry and FDA Administration (FDA) is announcing the Hampshire Ave., Bldg. 66, rm. 4613, staff entitled ‘‘In Vitro Companion availability of a draft guidance entitled Silver Spring, MD 20993–0002. Send a Diagnostic Devices.’’ This guidance is ‘‘In Vitro Companion Diagnostic fax request to 301–827–8149 to receive intended to provide assistance both to Devices.’’ This guidance is intended to a hard copy. Alternatively, you may sponsors developing therapeutic assist sponsors planning to develop a submit written requests for single copies products, which for purposes of this therapeutic product that depends on the of the draft guidance to the Division of guidance includes therapeutic, use of an in vitro companion diagnostic Drug Information, Center for Drug preventive, or prophylactic drugs and device for its safe and effective use or Evaluation and Research, Food and biological products that depend on the an in vitro diagnostic device that is Drug Administration, 10903 New use of and are labeled for use with an intended for use with a corresponding Hampshire Ave., Bldg. 51, rm. 2201, in vitro diagnostic device, and to therapeutic product and included in the Silver Spring, MD 20993–0002, or Office sponsors of the companion diagnostics. instructions for use in the labeling of of Communication, Outreach and This guidance defines ‘‘companion those products. This guidance defines in Development (HFM–40), 1401 Rockville diagnostic device’’ and clarifies that in vitro companion diagnostic devices; Pike, suite 200N, Rockville, MD 20852. most circumstances, if use of a explains the need for FDA oversight of Send one self-addressed adhesive label companion diagnostic device is companion diagnostic devices; clarifies to the office that you are ordering from essential for the safe and effective use of that, in most circumstances, if use of a to assist in processing your requests. See a therapeutic product, the diagnostic companion diagnostic device is the SUPPLEMENTARY INFORMATION section device and therapeutic product should essential for the safe and effective use of for information on electronic access to be approved or cleared a therapeutic product, the diagnostic the guidance. contemporaneously by FDA for the use device and therapeutic product should Submit electronic comments on the indicated in the therapeutic product be approved or cleared draft guidance to http:// labeling. contemporaneously by FDA for the use www.regulations.gov. Submit written Diagnostic tests have been employed indicated in the therapeutic product comments to the Division of Dockets for many years to enhance the use of labeling; provides guidance for industry Management (HFA–305), Food and Drug therapeutic products. Recently, and FDA staff on possible premarket Administration, 5630 Fishers Lane, rm. therapeutic products that depend on the regulatory pathways and FDA’s 1061, Rockville, MD 20852. Identify use of a diagnostic test to meet their regulatory enforcement policy; and comments with the docket number labeled safety and effectiveness claims describes certain statutory and found in brackets in the heading of this have become more common. For regulatory approval requirements document. example, a test could identify or limit relevant to therapeutic product labeling FOR FURTHER INFORMATION CONTACT: appropriate populations for treatment or that stipulate concomitant use of a Elizabeth Mansfield, Center for Devices identify populations who should not companion diagnostic device to ensure and Radiologic Health, Food and Drug receive a particular treatment because of

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the increased risk of a serious side Guidance documents are also available DEPARTMENT OF HEALTH AND effect. Another reason for this increasing at http://www.regulations.gov. To HUMAN SERVICES interest is the emergence of new receive ‘‘In Vitro Companion Diagnostic technologies that are improving our Devices’’, you may either send an e-mail Food and Drug Administration ability to individualize, or personalize, request to [email protected] to [Docket No. FDA–2011–N–0002] medical therapy by identifying patients receive an electronic copy of the who are more likely to respond document or send a fax request to 301– Obstetrics and Gynecology Devices positively or negatively to treatment, or 847–8149 to receive a hard copy. Please Panel of the Medical Devices Advisory who are at lower risk for a particular use the document number 1737 to Committee; Notice of Meeting side effect. identify the guidance you are When an appropriate scientific requesting. AGENCY: Food and Drug Administration, rationale supports such an approach, HHS. FDA encourages the development and IV. Paperwork Reduction Act of 1995 ACTION: Notice. use of therapeutic products that depend This draft guidance refers to on the use of approved or cleared previously approved collections of This notice announces a forthcoming companion diagnostic devices, and the information found in FDA regulations meeting of a public advisory committee Agency has already approved/cleared and guidance documents. These of the Food and Drug Administration several companion diagnostics for use collections of information are subject to (FDA). The meeting will be open to the with corresponding therapeutic review by the Office of Management and public. products. FDA believes that use of a Budget (OMB) under the Paperwork Name of Committee: Obstetrics and companion diagnostic with a Reduction Act of 1995 (44 U.S.C. 3501– Gynecology Devices Panel of the therapeutic product raises important 3520). The collections of information in Medical Devices Advisory Committee. concerns about the safety and 21 CFR Part 807 Subpart E have been General Function of the Committee: effectiveness of both the test and the approved under OMB control number To provide advice and therapeutic product. An erroneous test 0910–0120; the collections of recommendations to the Agency on result could lead to withholding an information in 21 CFR Part 314 have FDA’s regulatory issues. Date and Time: The meeting will be appropriate therapy or to administering been approved under OMB control held on September 8 and 9, 2011, from an inappropriate therapy. Healthcare number 0910–0001; the collections of 8 a.m. to 6 p.m. professionals must be able to rely on information in 21 CFR Part 312 have Location: Holiday Inn, Ballroom, 2 information from companion diagnostic been approved under OMB control Montgomery Village Ave., Gaithersburg, devices to help make critical treatment number 0910–0014; the collections of MD 20879. decisions. FDA oversight of companion information in 21 CFR Part 601 have diagnostics will protect patients from Contact Person: Shanika Craig, Food been approved under OMB control and Drug Administration, 10903 New treatment risks that could arise from in number 0910–0338; the collections of vitro companion diagnostic devices that Hampshire Ave., Bldg. 66, rm. 1613, information in 21 CFR Part 814, 301–796–6639, or FDA Advisory have inadequate performance subparts B and E, have been approved characteristics. To facilitate the Committee Information Line, 1–800– under OMB Control No. 0910–0231; the 741–8138 (301–443–0572 in the development and clearance or approval collections of information in 21 CFR of therapeutic products that are Washington, DC area), and follow the Part 812 have been approved under prompts to the desired center or product intended for use with companion OMB control number 0910–0078; the diagnostic devices, as well as the area. Please call the Information Line for collections of information in 21 CFR up-to-date information on this meeting. development of the companion Part 801 and 21 CFR 809.10 have been diagnostics themselves, FDA is A notice in the Federal Register about approved under OMB Control No. 0910– last minute modifications that impact a clarifying relevant policies related to 0485; and the collections of information these devices and products. previously announced advisory in 21 CFR 201.56 and 21 CR 201.57 have committee meeting cannot always be II. Significance of Guidance been approved under OMB control published quickly enough to provide number 0910–572. This draft guidance is being issued timely notice. Therefore, you should consistent with FDA’s good guidance V. Comments always check the Agency’s Web site and practices regulation (21 CFR 10.115). Interested persons may submit to the call the appropriate advisory committee The draft guidance, when finalized, will Division of Dockets Management (see hot line/phone line to learn about represent the Agency’s current thinking ADDRESSES) either electronic or written possible modifications before coming to on companion diagnostic devices. It comments regarding this document. It is the meeting. does not create or confer any rights for only necessary to send one set of Agenda: On September 8 and 9, 2011, or on any person and does not operate comments. It is no longer necessary to the committee will discuss and make to bind FDA or the public. An send two copies of mailed comments. recommendations regarding the safety alternative approach may be used if Identify comments with the docket and effectiveness of transvaginal such approach satisfies the number found in brackets in the surgical mesh used for repair of pelvic requirements of the applicable statutes heading of this document. Received organ prolapse. FDA is convening this and regulations. comments may be seen in the Division meeting to seek expert opinion on the risks and benefits of these devices in III. Electronic Access of Dockets Management between 9 a.m. and 4 p.m., Monday through Friday. light of adverse events, e.g., vaginal Persons interested in obtaining a copy erosion leading to pelvic pain and of the draft guidance may do so by using Dated: July 8, 2011. dyspareunia, and available information the Internet. A search capability for all Nancy K. Stade, on clinical benefit. The committee will CDRH guidance documents is available Deputy Director for Policy, Center for Devices be asked to provide scientific and at http://www.fda.gov/MedicalDevices/ and Radiological Health. clinical input on the Agency’s proposed DeviceRegulationsGuidance/ [FR Doc. 2011–17671 Filed 7–12–11; 8:45 am] premarket and postmarket regulatory GuidanceDocuments/_default.htm. BILLING CODE 4160–01–P strategies for these devices, including

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reclassification into Class III (premarket AboutAdvisoryCommittees/ appropriate Federal agencies (including the approval), labeling improvements and ucm111462.htm for procedures on Centers for Disease Control and Prevention, postmarket surveillance studies. The public conduct during advisory the Environmental Protection Agency) to— committee will also consider surgical committee meetings. (1) Plan, develop, and implement a Notice of this meeting is given under prospective cohort study, from birth to mesh used to treat stress urinary adulthood, to evaluate the effects of both incontinence. the Federal Advisory Committee Act (5 chronic and intermittent exposures on child FDA intends to make background U.S.C. app. 2). health and human development; and material available to the public no later Dated: June 30, 2011. (2) Investigate basic mechanisms of than 2 business days before the meeting. Jill Hartzler Warner, developmental disorders and environmental If FDA is unable to post the background factors, both risk and protective, that Acting Associate Commissioner for Special influence health and developmental material on its Web site prior to the Medical Programs. meeting, the background material will processes. be made publicly available at the [FR Doc. 2011–17695 Filed 7–13–11; 8:45 am] (c) Requirement.—The study under location of the advisory committee BILLING CODE 4160–01–P subsection (b) shall— (1) Incorporate behavioral, emotional, meeting, and the background material educational, and contextual consequences to will be posted on FDA’s Web site after DEPARTMENT OF HEALTH AND enable a complete assessment of the physical, the meeting. Background material is HUMAN SERVICES chemical, biological, and psychosocial available at http://www.fda.gov/ environmental influences on children’s well- AdvisoryCommittees/Calendar/ National Institutes of Health being; default.htm. Scroll down to the (2) Gather data on environmental appropriate advisory committee link. Submission for OMB Review; influences and outcomes on diverse Procedure: Interested persons may Comment Request; Formative populations of children, which may include present data, information, or views, the consideration of prenatal exposures; and Research Methodology Studies for the (3) Consider health disparities among orally or in writing, on issues pending National Children’s Study children, which may include the before the committee. Written consideration of prenatal exposures. submissions may be made to the contact Summary: Under the provisions of person on or before August 30, 2011. Section 3507(a)(1)(D) of the Paperwork To fulfill the requirements of the Oral presentations from the public will Reduction Act of 1995, the National Children’s Health Act, the results of be scheduled between approximately 10 Institutes of Health (NIH) has submitted formative research and pilot tests will a.m. and 11 a.m. on September 8 and 9, to the Office of Management and Budget be used to maximize the efficiency of 2011. Those individuals interested in (OMB) a request for reinstatement of NCS procedures, materials, and making formal oral presentations should approval of the information collection methods for outreach, engagement of notify the contact person and submit a listed below. This proposed information stakeholders, recruitment and retention brief statement of the general nature of collection was previously published in of Study subjects, and to ensure the evidence or arguments they wish to the Federal Register on April 27, 2011, scientifically robust data collection present, the names and addresses of pages 23608–23609, and allowed 60 methodologies for the National proposed participants, and an days for public comment. Two written Children’s Study (NCS) Vanguard and indication of the approximate time comments and two verbal comments Main Studies. With this submission, the requested to make their presentation on were received. The verbal comments NCS seeks to obtain OMB’s generic or before August 22, 2011. Time allotted expressed support for the broad scope of approval to conduct survey and for each presentation may be limited. If the study. The written comments were instrument design and administration, the number of registrants requesting to identical and questioned the cost and focus groups, cognitive interviews, and speak is greater than can be reasonably utility of the study. The purpose of this health and social service provider accommodated during the scheduled notice is to allow an additional 30 days information collection surrounding open public hearing session, FDA may for public comment. The National outreach, engagement, recruitment, conduct a lottery to determine the Institutes of Health may not conduct or consent and questionnaire design, and speakers for the scheduled open public sponsor, and the respondent is not retention activities. hearing session. The contact person will required to respond to, an information The results from formative research notify interested persons regarding their collection that has been extended, and pilot tests proposed will inform the request to speak by August 23, 2011. revised, or implemented on or after feasibility (scientific robustness), Persons attending FDA’s advisory October 1, 1995, unless it displays a acceptability (burden to participants committee meetings are advised that the currently valid OMB control number. and study logistics) and cost of NCS Agency is not responsible for providing Proposed Collection: Title: Formative Vanguard and Main Study recruitment, access to electrical outlets. Research Studies for the National retention, study visit measures and FDA welcomes the attendance of the Children’s Study (NCS) Need and Use of study logistics. Type of Review: public at its advisory committee Information Collection: The Children’s Reinstatement of OMB #0925–0590, meetings and will make every effort to Health Act of 2000 (Pub. L. 106–310) Expiration June 30, 2011. Frequency of accommodate persons with physical states: Response: Annual [As needed on an on- disabilities or special needs. If you (a) Purpose.—It is the purpose of this going and concurrent basis]. Affected require special accommodations due to section to authorize the National Institute of Public: Members of the public, a disability, please contact AnnMarie Child Health and Human Development* to researchers, practitioners, and other Williams, Committee Management Staff, conduct a national longitudinal study of health professionals. Type of 301–796–5966 at least 7 days in advance environmental influences (including Respondents: Women of child-bearing of the meeting. physical, chemical, biological, and age, fathers, community leaders, FDA is committed to the orderly psychosocial) on children’s health and members, and organizations, health care development. conduct of its advisory committee (b) In General.—The Director of the facilities and professionals, public meetings. Please visit our Web site at National Institute of Child Health and health, environmental, social and http://www.fda.gov/ Human Development* shall establish a cognitive science professional AdvisoryCommittees/ consortium of representatives from organizations and practitioners, hospital

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administrators, cultural and faith-based Study and their peers who are not Annual reporting burden: See Table 1. centers, and schools and child care participating in the NCS Vanguard The annualized cost to respondents is organizations. These include both Study. estimated at: $300,000 (based on $10 per persons enrolled in the NCS Vanguard hour).

TABLE 1—ESTIMATED ANNUAL REPORTING BURDEN SUMMARY

Estimated Estimated number of Average Estimated total Data collection activity Type of respondent number of responses burden annual burden respondents per re- hours per hours spondent response requested

Small, focused survey and instrument NCS participants ...... 4,000 2 1 8,000 design and administration. Members of NCS target population (not 4,000 2 1 8,000 NCS participants). Health and Social Service Providers ..... 2,000 1 1 2,000 Community Stakeholders ...... 2,000 1 1 2,000 Focus groups ...... NCS participants ...... 2,000 1 2 2,000 Members of NCS target population (not 2,000 1 2 2,000 NCS participants). Health and Social Service Providers ..... 2,000 1 2 2,000 Community Stakeholders ...... 2,000 1 2 2,000 Cognitive interviews ...... NCS participants ...... 500 1 2 1,000 Members of NCS target population (not 500 1 2 1,000 NCS participants).

Total ...... 21,000 ...... 30,000

Requests for Comments: Written Child Health and Human Development, and personal information concerning comments and/or suggestions from the 31 Center Drive, Room 2A18, Bethesda, individuals associated with the grant public and affected agencies are invited Maryland 20892, or call a non-toll free applications, the disclosure of which on one or more of the following points: number (301) 496–1877 or E-mail your would constitute a clearly unwarranted (1) Whether the proposed collection of request, including your address to invasion of personal privacy. information is necessary for the proper [email protected]. Name of Committee: Center for Scientific performance of the function of the Comments Due Date: Comments Review Special Emphasis Panel, Member agency, including whether the regarding this information collection are Conflict: HIV/AIDS. information will have practical utility; best assured of having their full effect if Date: August 3, 2011. (2) The accuracy of the agency’s received within 30 days of the date of Time: 10 a.m. to 5 p.m. estimate of the burden of the proposed this publication. Agenda: To review and evaluate grant applications. collection of information, including the Dated: July 8, 2011. validity of the methodology and Place: National Institutes of Health, 6701 Jamelle E. Banks, Rockledge Drive, Bethesda, MD 20892, assumptions used; (3) Ways to enhance Public Health Analyst, Office of Science (Virtual Meeting). the quality, utility, and clarity of the Policy, Analysis and Communications Contact Person: Jose H Guerrier, PhD, information to be collected; and (4) National Institute of Child Health and Human Scientific Review Officer, Center for Ways to minimize the burden of the Development. Scientific Review, National Institutes of collection of information on those who [FR Doc. 2011–17735 Filed 7–13–11; 8:45 am] Health, 6701 Rockledge Drive, Room 5218, are to respond, including the use of BILLING CODE 4140–01–P MSC 7852, Bethesda, MD 20892, 301–435– appropriate automated, electronic, 1137, [email protected]. mechanical, or other technological Name of Committee: Center for Scientific collection techniques or other forms of DEPARTMENT OF HEALTH AND Review Special Emphasis Panel, AIDS information technology. HUMAN SERVICES Related Technology Applications. Direct Comments to OMB: Written Date: August 3, 2011. National Institutes of Health Time: 2 to 5 p.m. comments and/or suggestions regarding Agenda: To review and evaluate grant the item(s) contained in this notice, applications. especially regarding the estimated Center for Scientific Review; Notice of Closed Meetings Place: National Institutes of Health, 6701 public burden and associated response Rockledge Drive, Bethesda, MD 20892, time, should be directed to Office of Pursuant to section 10(d) of the (Virtual Meeting). Management and Budget, Office of Federal Advisory Committee Act, as Contact Person: Robert Freund, PhD, Information and Regulatory Affairs, amended (5 U.S.C. App.), notice is Scientific Review Officer, Center for Attn: NIH Desk Officer, by e-mail to hereby given of the following meetings. Scientific Review, National Institutes of [email protected], or by The meetings will be closed to the Health, 6701 Rockledge Drive, Room 5216, MSC 7852, Bethesda, MD 20892, 301–435– fax to 202–395–6974. To request more public in accordance with the 1050, [email protected]. information on the proposed project or provisions set forth in sections (Catalogue of Federal Domestic Assistance to obtain a copy of the data collection 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., Program Nos. 93.306, Comparative Medicine; plans and instruments, contact Ms. as amended. The grant applications and 93.333, Clinical Research, 93.306, 93.333, Jamelle E. Banks, Public Health Analyst, the discussions could disclose 93.337, 93.393–93.396, 93.837–93.844, Office of Science Policy, Analysis and confidential trade secrets or commercial 93.846–93.878, 93.892, 93.893, National Communication, National Institute of property such as patentable material, Institutes of Health, HHS)

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Dated: July 7, 2011. Comments Invited TSA acknowledges that an error in the Jennifer S. Spaeth, In accordance with the Paperwork 60-day notice was identified by a Director, Office of Federal Advisory Reduction Act of 1995 (44 U.S.C. 3501 commenter which related to the length Committee Policy. et seq.), an agency may not conduct or of the previous collection process. [FR Doc. 2011–17712 Filed 7–13–11; 8:45 am] sponsor, and a person is not required to Additionally, the commenter questioned BILLING CODE 4140–01–P respond to, a collection of information total burden hours estimated for 2011 unless it displays a valid OMB control and its associated cost, because it varied number. The ICR documentation is significantly from the previous filing in DEPARTMENT OF HOMELAND available at http://www.reginfo.gov. 2008. TSA will directly respond to the SECURITY Therefore, in preparation for OMB individual submitting this feedback. review and approval of the following Number of Respondents: The Transportation Security Administration information collection, TSA is soliciting annualized number of total respondents is 401,330. [Docket No. TSA–2006–24191] comments to— (1) Evaluate whether the proposed Estimated Annual Burden Hours: TSA Extension of Agency Information information requirement is necessary for provided incorrect hours in the 60-day Collection Activity Under OMB Review; the proper performance of the functions filing and has corrected its estimates. Transportation Worker Identification of the agency, including whether the The correct estimated annualized Credential (TWIC) Program information will have practical utility; reporting burden is 919,110 hours, and (2) Evaluate the accuracy of the the estimated annualized cost burden is AGENCY: Transportation Security $53,866,023. Administration, DHS. agency’s estimate of the burden; (3) Enhance the quality, utility, and Joanna Johnson, ACTION: 30-day notice. clarity of the information to be TSA Paperwork Reduction Act Officer, Office SUMMARY: This notice announces that collected; and of Information Technology. the Transportation Security (4) Minimize the burden of the [FR Doc. 2011–17757 Filed 7–13–11; 8:45 am] Administration (TSA) has forwarded the collection of information on those who BILLING CODE 9110–05–P Information Collection Request (ICR), are to respond, including using Office of Management and Budget appropriate automated, electronic, (OMB) control number 1652–0047, mechanical, or other technological DEPARTMENT OF THE INTERIOR abstracted below to OMB for review and collection techniques or other forms of approval of an extension of the information technology. Fish and Wildlife Service currently approved collection under the Information Collection Requirement [FWS–R2–ES–2010–N283; 20124–1112– Paperwork Reduction Act (PRA). The 0000–F2] ICR describes the nature of the Title: Transportation Worker information collection and its expected Identification Credential (TWIC) Draft Environmental Impact Statement burden. TSA published a Federal Program. and Habitat Conservation Plan for Register notice, with a 60-day period Type of Request: Extension of a Commercial Wind Energy soliciting comments, of the following currently approved collection. Developments Within Nine States collection of information on April 26, OMB Control Number: 1652–0047. 2011, 76 FR 23326. The collection Forms(s): TWIC Disclosure and AGENCY: Fish and Wildlife Service, involves the submission of required Certification form (OMB 1652–0047) . Interior. information necessary to conduct a Affected Public: Individuals requiring ACTION: Notice of intent; announcement security threat assessment on unescorted access to facilities and of public scoping meetings; request for individuals applying for a TWIC and a vessels regulated by the Maritime comments. voluntary customer satisfaction survey. Transportation Security Act (MTSA) and all mariners holding Coast Guard- SUMMARY: We, the Fish and Wildlife DATES: Send your comments by August 15, 2011. A comment to OMB is most issued credentials or qualification Service, as lead agency advise the effective if OMB receives it within 30 documents. public that we intend to prepare an days of publication. Abstract: The data collected will be environmental impact statement (EIS) used for processing TWIC enrollment on a proposed application, including a ADDRESSES: Interested persons are and conducting the security threat Habitat Conservation Plan (HCP), for an invited to submit written comments on assessment. At the enrollment center, Incidental Take Permit (ITP) under the the proposed information collection to applicants verify their biographic Endangered Species Act of 1973, as the Office of Information and Regulatory information and provide identity amended. The potential ITP would Affairs, OMB. Comments should be documentation, biometric information, include federally listed and candidate addressed to Desk Officer, Department and proof of immigration status (if species within portions of nine states of Homeland Security/TSA, and sent via required). This information allows TSA (North Dakota, South Dakota, Montana, electronic mail to _ to complete a comprehensive security Colorado, Nebraska, Kansas, New oira [email protected] or faxed threat assessment. If TSA determines Mexico, Oklahoma, and Texas). to (202) 395–6974. that the applicant is qualified to receive The activities covered by a potential FOR FURTHER INFORMATION CONTACT: a TWIC, TSA notifies the applicant that ITP would include regional-level Joanna Johnson, TSA PRA Officer, their TWIC is ready for activation. Once construction, operation, and Office of Information Technology (OIT), activated, this credential will be used maintenance associated with multiple TSA–11, Transportation Security for identification verification and access commercial wind energy facilities. The Administration, 601 South 12th Street, control. TSA also conducts a survey to planning partners are currently Arlington, VA 20598–6011; telephone capture worker overall satisfaction with considering, for inclusion in the HCP, (571) 227–3651; e-mail the enrollment process; this optional certain species listed as federally [email protected]. survey is provided during the activation threatened or endangered, or having the SUPPLEMENTARY INFORMATION: period. potential to become listed during the

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life of the HCP, and having some Public Meetings issue the ITP. At this time, the entity or likelihood of being taken by the To facilitate information transfer, we entities that would serve as the applicant’s activities within the will hold nine public meetings in the applicant(s) for and be potentially proposed permit area. The intended following cities between August 2011 permitted under an ITP have not been effect of this notice is to gather and September 2011: selected. However, the ITP is being information from the public to develop sought by the Wind Energy Whooping and analyze the effects of the potential Pueblo, Colorado—August 9, 2011. Crane Action Group (WEWAG), a group issuance of an ITP that would facilitate Amarillo, Texas—August 10, 2011. of wind energy industry companies wind energy development within the Clovis, New Mexico—August 11, 2011. formed in 2009. Member companies Pierre, South Dakota—August 23, 2011. planning area, while minimizing include Acciona North America; Allete; Bismarck, North Dakota—August 24, incidental take and mitigating the Alternity; BP Renewables; Clipper Wind 2011. effects of any incidental take to the Energy; CPV Renewable Energy Glendive, Montana—August 25, 2011. Company, LLC; EnXco; Duke Wind maximum extent practicable. Kearney, Nebraska—August 30, 2011. We provide this notice to (1) Describe Energy; Horizon Wind Energy; Iberdrola Great Bend, Kansas—August 31, 2011. the proposed action; (2) advise other Woodward, Oklahoma—September 1, Renewables; Infinity; MAP Royalty; Federal and state agencies, potentially NextEra Energy Resources; Renewable 2011. affected tribal interests, and the public Austin, Texas—September 7, 2011. Energy Systems Americas; Terra-Gen; of our intent to prepare an EIS; (3) Corpus Christi, Texas—September 8, Trade Wind Energy; Element Power; announce the initiation of a 90-day 2011. Own Energy; and Wind Capital Group. public scoping period; and (4) obtain Additional companies may become suggestions and information on the Specific times and locations of the involved as the planning process scope of issues and possible alternatives public information meetings will be proceeds. Hereafter, the term to be included in the EIS. available on the Service’s Web site— ‘‘applicant’’ is used to refer to the http://www.fws.gov/southwest/—and DATES: To ensure consideration, we ultimate applicant(s) selected and the noticed in local newspapers at least 14 must receive your written comments on potential permittee(s). The proposed ITP days prior to the meeting dates. or before October 12, 2011. For would be granted for certain wind approximate public meeting dates, see Reasonable Accommodations energy development, operation, and ‘‘Public Meetings’’ in the decommissioning or repowering–related Persons needing reasonable activities undertaken within the permit SUPPLEMENTARY INFORMATION section accommodations in order to attend and below. area (described below). participate in the public meetings WEWAG has sought to work in ADDRESSES: Send your comments or should contact the Service at the partnership with the Service to promote request for information by any one of address above no later than 1 week species conservation, while complying the following methods: before the public meeting. Information with environmental stewardship goals U.S. Mail: U.S. Fish and Wildlife regarding this proposed action is and policy requirements that compel the Service, P.O. Box 1306, Albuquerque, available in alternative formats upon development of clean and sustainable NM 87103–1306; Attention: Laila request. energy from wind resources. If Lienesch; Background successful, the HCP and subsequent ITP Facsimile: 505/248–6922 (Attention: would allow take authorization for Laila Lienesch); Section 9 of the Act and its otherwise lawful activities, such as the E–Mail: implementing regulations prohibit take development, construction, operation, [email protected]; or of animal species listed as endangered Toll-Free Telephone Message Service: and decommissioning or repowering, of or threatened. The definition of take commercial wind energy developments 800/815–8927. under the Act includes the following within the planning area. The HCP will FOR FURTHER INFORMATION CONTACT: activities: To harass, harm, pursue, contain a multifaceted approach, Laila Lienesch at 505/248–6494 or hunt, shoot, wound, kill, trap, capture, _ including but not limited to take Laila [email protected], Amelia Orton- or collect listed animal species, or avoidance, minimization of take (e.g., Palmer at 303/236–4211 or attempt to engage in such conduct (16 _ through proven and defined best Amelia [email protected], or U.S.C. 1538). Section 10 of the Act, 16 management practices), and mitigation Marty Tuegel at 505/248–6651 or U.S.C. 1539, establishes a program _ of the impacts of take through potential Marty [email protected]. Individuals who whereby persons seeking to pursue habitat preservation, restoration, and are hearing impaired or speech impaired activities that are otherwise legal, but enhancement measures. The applicant may call the Federal Relay Service at could give rise to liability for unlawful must also ensure that adequate funding 800/877–8337 for TTY assistance. take of federally protected species, may for implementation, including biological SUPPLEMENTARY INFORMATION: Under the receive an ITP, which provides and compliance monitoring, is National Environmental Policy Act (42 incidental take authorization to the ITP provided. U.S.C. 4321, et seq.; NEPA) of 1969, as holder. To obtain an ITP, an applicant WEWAG is currently considering, for amended, we, the U.S. Fish and Wildlife must submit an HCP containing inclusion in the HCP, certain species Service (Service), as lead agency, advise measures that would minimize listed as federally threatened or the public that we intend to prepare an incidental take, including avoidance, endangered, or having the potential to environmental impact statement (EIS) and mitigate for the effects of any become listed during the life of the HCP, on a proposed application, including a incidental take to the maximum extent and having some likelihood of being Habitat Conservation Plan (HCP), for an practicable; and ensure that the taking is taken by the applicant’s activities incidental take permit (ITP) under incidental to, and not the purpose of, an within the proposed permit area. Those section 10(a)(1)(B) of the Endangered otherwise lawful activity (16 U.S.C. species include the endangered Species Act of 1973, as amended (Act), 1539(a)(1)(B) and 1539(a)(2)(A)). If we whooping crane (Grus americana), the and seek public input prior to determine that an applicant has satisfied endangered interior least tern (Sterna developing a draft EIS for the potential all permitting criteria and other antillarum athalassos), the endangered issuance of an ITP. statutory requirements, we intend to piping plover (Charadrius melodus),

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and the lesser prairie-chicken including any of the alternatives; and consultation once under the ESA prior (Tympanuchus pallidicinctus), a cumulative impacts. Various strategies to the ITP being issued. The ITP holder candidate species. The final list of for avoiding, minimizing, and mitigating would administer the HCP without covered species may include all these the impacts of incidental take will also further Service involvement or species, a subset of them, and/or be considered. reanalysis under NEPA or ESA. additional species, based on the Environmental review of the EIS will The second ITP structure, referred to outcome of this planning process. be conducted in accordance with the as an Umbrella HCP, under The proposed planning area is a 200- requirements of NEPA, its implementing consideration is a single habitat mile-wide corridor determined by regulations (40 CFR 1500–1508), other conservation plan that supports defining the center line of the whooping applicable regulations, and our multiple ITP holders. A single HCP crane migration path corridor (100 miles procedures for compliance with those would be developed, and all NEPA and on either side of the center line). This regulations. We furnish this notice in ESA compliance would be done on the line is based on the database of accordance with 40 CFR 1501.7 and HCP. Each company would apply for confirmed whooping crane observations 1508.22 to obtain suggestions and separate ITPs under the Umbrella HCP. from the Cooperative Whooping Crane information from other agencies and the At the time a company applied for an Tracking Program. This corridor extends public on the scope of issues and ITP, the Service would evaluate the from the Gulf Coast of Texas north to alternatives they believe need to be NEPA and section 7 consultation under the Canadian border and encompasses addressed in the EIS. We invite ESA to ensure that the impacts and such cities as Houston, TX; Oklahoma comments from interested parties to effects of the company’s projects are City, OK; Wichita, KS; Bismarck, ND; ensure that the full range of issues consistent with the HCP’s NEPA and Grand Island, NE; and Aberdeen, SD. In related to the proposed permit ESA compliance documents, and the addition, the planning area includes the application is identified. general permit issuance criteria and majority of the historic range of the ITPs (50 CFR 13.21, 17.22(b), and Public Comments lesser prairie-chicken, which extends 17.32(b)). The Service would also the permit area beyond the 200-mile- We are requesting information from announce a Notice of Intent to issue the wide whooping crane migration corridor other interested government agencies, ITP in the Federal Register and take to include parts of Kansas, Colorado, Native American Tribes, the scientific public comment on the application for Oklahoma, New Mexico, and Texas. community, industry, or other 30-days (16 U.S.C. 1539(c)). Issuance of interested parties concerning the ITPs could take up to 90 days to Environmental Impact Statement following areas of analysis: Vegetation, process. Each company holding an ITP The Service will be the lead Federal Wildlife and Aquatic Resources, Special would be responsible for agency in the preparation of the EIS to Status Species, Surface Waters and implementation of their minimization satisfy the requirements of NEPA. With Floodplains, Hydrology and and mitigation measures, compliance this notice of intent (NOI), we ask other Groundwater, Wetlands and Waters of monitoring and biological monitoring, Federal, State, tribal, and local agencies the U.S., Archeology, Architectural annual reporting, adaptive management with jurisdiction and/or special History, Sites of Religious and Cultural procedures, and participation in annual expertise with respect to environmental Significance to Tribes, Noise and coordination meetings. The Service issues to formally cooperate with us in Vibration, Visual Resources and would be responsible for issuance of the preparation of the EIS. Agencies that Aesthetics, Economics and new ITPs, coordination of the would like to request cooperating Socioeconomics, Environmental Justice, mitigation, and conducting annual agency status on the EIS should follow Air Quality (including greenhouse gas meetings with ITP holders. This ITP the instructions for filing comments emissions and climate change), Geology administrative structure would have provided under the ADDRESSES section and Soil, Land Use, Transportation, continued Service involvement during above. Infrastructure and Utilities, Hazardous the implementation of the HCP. The EIS will consider the proposed Materials and Solid Waste Management, The third ITP structure, referred to as action (the issuance of a section and Human Health and Safety. the Primary Permit HCP, also involves 10(a)(1)(B) ITP, as supported by an In addition to the topics above, we are a single HCP that supports an initial ITP HCP), no action (no HCP/no ITP), and seeking comments on how a future ITP held by a third party. Authorities in the a reasonable range of alternatives that or ITPs may be structured. Currently initial ITP are then transferred to accomplish the purpose and need of the there are four potential ITP structures individual companies through the proposal. A detailed description of the being considered. The first involves a issuance of ITPs specific to their proposed action and alternatives will be single habitat conservation plan that projects. A single HCP would be included in the EIS. The alternatives to supports a single ITP held by a third developed and all NEPA and ESA be considered for analysis in the EIS party, referred to as a Programmatic compliance would be completed on the may include, but are not limited to, HCP. This third-party ITP holder would HCP prior to issuance of the initial ITP. modified lists of covered species, enroll companies and their projects All compliance and issuance criteria differing land-coverage areas, activities under the ITP. The third party would would be reviewed prior to any transfer which may be covered, and a variety of need to meet all general permit and ITP of authorities to an individual company. permit structures under consideration issuance criteria (50 CFR 13.21, The Service would transfer the for the conservation program, described 17.22(b), and 17.32(b)); and would be authorizations in the initial ITP, in below in the Public Comment section. responsible for the administration of the whole or in part, based on a joint The EIS will also identify potentially HCP, including enrollment, compliance submission by the initial ITP holder and significant impacts on biological monitoring, biological monitoring, the proposed transferee, so long as the resources, land use, air quality, water coordination of the mitigation, annual Service determines that the transferee is quality, water resources, economics, and reporting, adaptive management, any qualified to hold an ITP (50 CFR 13.21, other environmental/historical ITP amendments, and annual 17.22(b), and 17.32(b)) and provides resources that may occur from issuance coordination meetings. Under this ITP adequate written assurance that it will of the ITP; indirect impacts as a result administrative structure the HCP and provide sufficient funding and of implementing a proposed HCP, ITP would undergo NEPA and section 7 implement the relevant terms and

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conditions of the ITP (50 CFR 13.25). necessary, as each permittee would be FOR FURTHER INFORMATION CONTACT: Ben The Service anticipates publishing a fully authorized under the permit. Burshia, Bureau of Indian Affairs, Notice of Intent to issue an ITP with Please note that submissions merely Division of Real Estate Services, Mail transfer authorities in the Federal stating support for, or opposition to, the Stop 4639–MIB, 1849 C Street, NW., Register and take public comments on action under consideration without Washington, DC 20240, telephone (202) the application for 30 days. Issuance of providing supporting information, 208–7737. each ITP may take up to 90 days to although noted, will not provide SUPPLEMENTARY INFORMATION: This process. The holder of the initial ITP information useful in determining the Notice is published in the exercise of would be responsible for the issues and the impacts to the human authority delegated by the Secretary of coordination of all activities among the environment in the draft EIS. The public the Interior to the Assistant Secretary— transferees. Each company holding an will also have a chance to review and Indian Affairs by part 209 of the ITP would be responsible for comment on the draft EIS when it is Departmental Manual. implementation of their minimization available (a notice of availability will be A proclamation was issued, in and mitigation measures, compliance published in the Federal Register). accordance with Section 7 of the Act of monitoring and biological monitoring, You may submit your comments and June 18, 1934 (48 Stat. 986; 25 U.S.C. annual reporting, adaptive management materials by one of the methods 467), for the land described below. The procedures, participation in annual described above under the ADDRESSES land was proclaimed to be an addition meetings, and coordination with the section at the beginning of this notice. to and part of the Laguna Reservation initial ITP holder. The Service would be Written comments will also be accepted for the exclusive use of Indians on that responsible in processing the transfers at the public meetings, although these reservation who are entitled to reside at and reviewing annual reports. This ITP public meetings are primarily intended the reservation by enrollment or tribal administrative structure would have to provide additional information and membership. provide a chance for the public to ask some continued Service involvement New Mexico Principal Meridian during the implementation of the HCP, specific questions concerning the but it would be less than under the proposed HCP and EIS. Bernalillo County, New Mexico Umbrella HCP and more than under the Public Availability of Comments Section 03, Township 09 North, Range Programmatic HCP. 1 West, N.M.P.M. Written comments we receive become The fourth ITP structure, referred to part of the public record associated with Those certain parcels of land known as the Co-Permitted HCP, also involves this action. Before including your as Parcels I, II, and III, situated in a single HCP that supports an ITP, but address, phone number, e-mail address, projected Section 3, Township 9 North, all parties are named as co-permittees or other personal identifying Range 1 West, N.M.P.M., within the on the ITP. A single HCP would be information in your comment, you Town of Atrisco Grant, in Bernalillo developed and all NEPA and ESA should be aware that the entire County, New Mexico, more particularly compliance would be completed on the comment—including your personal described by survey filed in the office of HCP prior to issuance of the initial ITP. identifying information—may be made the County Clerk of Bernalillo County, Current members of WEWAG (or those publicly available at any time. While New Mexico, on October 19, 2007, in who join prior to permit application) you can ask us in your comment to Book 2007S, page 80, as Document No. would be named as permittee in the withhold your personal identifying 2007147071, performed by Brian K. incidental take permit application. information from public review, we McClintock, New Mexico Professional Assuming the Service found that the cannot guarantee that we will be able to Surveyor Number 11597. Said parcels HCP met the ESA’s permit issuance do so. contain 99.5623 acres, more or less. criteria, the Service would issue a single Said parcels are more particularly or master incidental take permit naming Joy E. Nicholopoulos, described as follows, to-wit: each of the WEWAG members as a Acting Regional Director, Region 2, PARCEL I: (QCD: Bk. A36, Pg. 2843, participating permittee (co-permittee). Albuquerque, New Mexico . WD: A13, Pg. 2512) Tract Lettered ‘‘A’’ Similar to the programmatic approach, [FR Doc. 2011–17638 Filed 7–13–11; 8:45 am] of the Plat of Division of LAND OF the incidental take permit would BILLING CODE 4310–55–P MRS. LULA M. BRIDGES, Bernalillo authorize each co-permittee’s projects County, New Mexico, as the same is located within the permit area. Prior to shown and designated on the plat undertaking any new project, a co- DEPARTMENT OF THE INTERIOR thereof, filed in the office of the County permittee would submit to the Service Clerk of Bernalillo County, New Mexico a prescribed form indicating how its Bureau of Indian Affairs on July 27, 1971 in Volume B5, Folio project complies with the incidental 192; TOGETHER WITH A Northerly take permit and that any required Proclaiming Certain Lands, Bowlin portion of the LANDS OF GEORGE T. mitigation has been paid to the North Property, as an Addition to the HILL, Town of Atrisco Grant, Bernalillo appropriate entity. The Service would Pueblo of Laguna Reservation, New County, New Mexico, as the same is have the authority to review each Mexico shown and designated on the plat project and would stay engaged during AGENCY: Bureau of Indian Affairs, thereof, filed in the office of the County the implementation of the HCP. Each Interior. Clerk of Bernalillo County, New Mexico company named as a co-permittee ACTION: Notice of Reservation on February 11, 1952 in Volume A1, would be responsible for Proclamation. Folio 099 TOGETHER WITH A certain implementation of their minimization tract of land situate within Projected and mitigation measures, compliance SUMMARY: This notice informs the public Section 3, Township 9 North, Range 1 monitoring and biological monitoring, that the Assistant Secretary—Indian West of the N.M.P.M., Bernalillo annual reporting, adaptive management Affairs proclaimed approximately County, New Mexico, Being adjacent to procedures, and participation in annual 99.5623 acres, more or less, to be added the Northerly line of said LANDS OF coordination meetings. Additional to the Pueblo of Laguna Reservation, GEORGE T. HILL, all being more NEPA and ESA section 7 would not be (Laguna), New Mexico. particularly described as follows:

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Beginning at the Southwest corner of records of Bernalillo County, New PARCEL III: (WD: Bk. A49, Pg. 1687, the herein described ‘‘PARCEL I’’, being Mexico, all being more particularly CWD: A96, Pg. 5080) a No. 5 Rebar, and being a point on the described as follows: A certain tract of land situate within Northerly line of Interstate 40, frontage Beginning at the Southwest corner of projected Section 3, Township 9 North, road (NMP 1–040–3(31)137); Thence the herein described ‘‘PARCEL II’’, Range 1 West of the N.M.P.M, Bernalillo N12°23′20″ W, a distance of 1042.71 feet being a point on the Northerly line of County, New Mexico, being more to a point, being a 1″ Iron Pipe; Thence Interstate 40, frontage road (NMP 1– particularly described as follows: S83°57′47″ W, a distance of 101.19 feet 040–3(31)137); Thence N15°05′46″ W, a Beginning at the Northwest corner of to a point; Thence N09°07′43″ W, a distance of 125.04 feet to a point, being the herein described ‘‘PARCEL III’’, distance of 640.46 feet to a point, being the Northwest corner of ‘‘PARCEL II’’; from which point the section corner the Northwest corner of ‘‘PARCEL I’’; Thence N74°58′17″ E, a distance of common to sections 3 and 4, T.9N. and Thence S89°06′14″ E, a distance of 230.00 feet to a point, being a No. 4 sections 33 and 34, T.10N., R.1W., 915.03 feet to a point, being a No. 4 Rebar, #11463; Thence N74°58′17″ E, a N.M.P.M., being an aluminum stamped Rebar, #11463, and being the Northeast distance of 100.00 feet to a point; cap, #11599, bears N13°59′07″ W, a corner of ‘‘PARCEL I’’; Thence Thence S15°02′56″ E, a distance of 10.00 distance of 153.19 feet, thence S13°59′07″ E, a distance of 1206.02 feet feet to a point; Thence N74°57′04″ E, a N05°47′23″ E, a distance of 2122.80 feet to a point, being a No. 4 Rebar, #11463; distance of 82.53 feet to a point; Thence to said section corner; Thence from Thence N74°58′17″ E, a distance of northeasterly on a curve (radius = point of beginning, S89°06′35″ E, a 146.70 feet to a point, being a No. 4 527.00′, chord = N65°34′34″ E, a distance of 4928.09 feet to a point, being Rebar, #11463; Thence S15°05′50″ E, a distance of 171.69 feet) delta = a No. 5 Rebar, #11608, being the distance of 129.77 feet to a point, being 18°45′00’’, through an arc to the left a Northeast corner of ‘‘PARCEL III’’ and a No. 4 Rebar, #11463; Thence distance of 172.46 feet to a point; being a point on the Northerly line of S74°58′17″ W, a distance of 230.00 feet Thence N53°31′18″ E, a distance of Interstate 40, frontage road (NMP 1– to a point, being a No. 4 Rebar, #11463; 203.50 feet to a point; Thence 040–3(31)137); Thence along said Thence S15°05′46″ E, a distance of northeasterly on a curve (radius = Interstate 40 right of way line, 125.04 feet to a point, being the 1001.00′, chord = N74° 57′23″ E, a S74°56′46″ W, a distance of 2207.69 feet Southeast corner of ‘‘PARCEL I’’, and distance of 643.52 feet) delta = to a point, being R/W cap 8071, #11599; being a point on the Northerly line of 37°30′00″, through an arc to the right a Thence southwesterly along said Interstate I–40, frontage road (NMP 1– distance of 655.15 feet to a point, being Interstate 40 right of way line on a curve 040–3(31)137); Thence southwesterly a ‘‘spike found’’; Thence S86°17′37″ E, (radius = 2559.05′, chord = S78°43′27″ along said Interstate 40 right of way line a distance of 169.91 feet to a point, W, a distance of 279.59 feet) delta = on a curve (radius = 2414.69′, chord = being the Northeast corner of ‘‘PARCEL 6°15′47″, through an arc to the right a S75°57′39″ W, a distance of 126.94 feet) II’’ and also being a No. 4 Rebar, #11463; distance of 279.73 feet to a point, being delta = 3°00′45″, through an arc to the Thence S03°27′27″ W, a distance of R/W cap 8070, #11599; Thence along right a distance of 126.95 feet to a point, 63.97 feet to a point, being the Southeast said Interstate 40 right of way line, being R/W cap 8060, #11599; Thence corner of ‘‘PARCEL II’’, being a point on S81°50′21″ W, a distance of 611.03 feet along said Interstate 40 right of way line the Northerly line of Interstate 40, to a point, being R/W cap 8069, #11599; S77°28′01″ W, a distance of 298.81 feet frontage road (NMP 1–040–3(31)137), Thence along said Interstate 40 right of to a point, being R/W cap 8059, #11599; and being R/W cap 8067, #11599; way line, N84°07′23″ W, a distance of Thence southwesterly along said Thence along said Interstate 40 right of 135.22 feet to a point, being R/W cap Interstate 40 right of way line on a curve way line, S81°50′44″ W, a distance of 8068, #11599; Thence along said (radius = 2670.60′, chord = S76°10′31″ 55.03 feet to a point, being R/W cap Interstate 40 right of way line, W, a distance of 121.82 feet) delta = 8066, #11599; Thence southwesterly S81°50′27″ W, a distance of 66.78 feet to 2°36′50″, through an arc to the left a along said Interstate 40 right of way line a point, being R/W cap 8067, #11599; distance of 121.83 feet to a point, being on a curve (radius = 3051.18′, chord = Thence N03°27′27″ E, a distance of R/W cap 8058, #11599; Thence along S75°59′55″ W, a distance of 621.10 feet) 63.97 feet to a point, being a No. 4 said Interstate 40 right of way line delta = 11°41′00″, through an arc to the Rebar, #11463; Thence N86°17′37″ W, a S74°50′12″ W, a distance of 241.61 feet left a distance of 622.18 feet to a point, distance of 169.91 feet to a point, being to the Southwest corner of ‘‘PARCEL I’’ being R/W cap 8065, #11599; Thence a ‘‘spike found’’; Thence southwesterly and said point of beginning. along said Interstate 40 right of way on a curve (radius = 1001.00′, chord = Said described PARCEL I’’ contains line, S70°09′01″ W, a distance of 490.72 S74°57′23″ W, a distance of 643.52 feet) 1,387,489.99 sq. ft. (31.8524 Ac.) more feet to a point, being R/W cap 8064, delta = 37°30′00″, through an arc to the or less. #11599; Thence along said Interstate 40 left a distance of 655.15 feet to a point; PARCEL II: (WD: Bk. 9816, Pg. 8285, right of way line S37°06′58″ W, a Thence S53°31′18″ W, a distance of WD: A13, Pg. 2512) distance of 96.14 feet to a point, being 203.50 feet to a point; Thence Tract B–1 of Plat of Tract B–1, R/W cap 8063, #11599; Thence along southwesterly on a curve (radius = ‘‘LANDS OF BOWLIN’’, as designated said Interstate 40 right of way line, 527.00′, Chord = S65°34′34″ W, a on the plat thereof, filed in the office of S70°03′54″ W, a distance of 135.04 feet distance of 171.69 feet) delta = the County Clerk of Bernalillo County, to a point; Thence southwesterly along 18°45′00″, through an arc to the right a New Mexico on October 5, 1993 in said Interstate 40 right of way line on a distance of 172.46 feet to a point; Volume 93C, Folio 288 records of curve (radius = 2414.69′, chord = Thence S74°57′04″ W, a distance of Bernalillo County, New Mexico; S72°18′48″ W, a distance of 180.45 feet) 82.53 feet to a point; Thence N15°02′56″ EXCEPTING FROM PARCEL I and II delta = 4°16′57″, through an arc to the W, a distance of 10.00 feet to a point; those portions conveyed to the New right a distance of 180.49 feet to a point, Thence S74°58′17″ W, a distance of Mexico State Highway and being the Southwest corner of ‘‘PARCEL 100.00 feet to a point, being a No. 4 Transportation Department by Warranty II’’ and said point of beginning. Rebar, #11463; Thence N15°05′50″ W, a Deeds recorded April 5th, 2000 in Book Said described ‘‘PARCEL II’’ contains distance of 129.77 feet to a point, being A4, pages 2706 and 2707 as Document 158,458.95 sq. ft. (3.6377 Ac.) more or a No. 4 Rebar, #11463; Thence Nos. 2000032849 and 2000032850, less. S74°58′17″ W, a distance of 146.70 feet

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to a point, being the Southwest corner the Reservation by enrollment or tribal June 18, 1934 (48 Stat. 986; 25 U.S.C. of ‘‘PARCEL III’’, and being a No. 4 membership. 467), for the land described below. The Rebar, #11463; Thence N13°59′07″ W, a land was proclaimed to be an addition Bay Mills Indian Community distance of 1052.83 feet to a point, being to and part of the Bay Mills Indian Reservation, Michigan Meridian, the Northwest corner of ‘PARCEL III’’ Community of Michigan for the Township of Superior, Chippewa and said point of beginning. exclusive use of Indians on that County, Michigan Said described ‘‘PARCEL III’’ contains Reservation who are entitled to reside at 2,790,987.08 sq. ft. (64.0722 Ac.) more The Southwest One Quarter (SW 1⁄4) the Reservation by enrollment or tribal or less. of the Northwest One-Quarter (NW 1⁄4) membership. The above-described lands contain a of Section 31, Township 47 North, Bay Mills Indian Community total of 99.5623 acres, more or less, Range 2 West. Reservation; Michigan Meridian; which is subject to all valid rights, Title to the lands herein described Township of Superior, Chippewa reservations, rights-of-way, and shall be subject to any existing County, Michigan easements of record. easements for public roads and This proclamation does not affect title highways, for public utilities and for The Northeast One Quarter (NE 1⁄4) of to the land described above, nor does it railroads and pipelines and any other the Northeast One-Quarter (NE 1⁄4) of affect any valid existing easements for rights-of-way of record. Section 17, Township 46 North, Range public roads and highways, public The above-described lands contain a 2 West. utilities and for railroads and pipelines total of 40 acres, more or less, which are Title to the lands herein described and any other rights-of-way or subject to all valid rights, reservations, shall be subject to any existing reservations of record. rights-of-way, and easements of record. easements for public roads and This proclamation does not affect title highways, for public utilities and for Dated: July 7, 2011. to the land described above, nor does it railroads and pipelines and any other Larry Echo Hawk, affect any valid existing easements for rights-of-way of record. Assistant Secretary—Indian Affairs. public roads and highways, public The above-described lands contain a [FR Doc. 2011–17796 Filed 7–13–11; 8:45 am] utilities and for railroads and pipelines total of 40 acres, more or less, which are BILLING CODE 4310–W7–P and any other rights-of-way or subject to all valid rights, reservations, reservations of record. rights-of-way, and easements of record. Dated: July 7, 2011. This proclamation does not affect title DEPARTMENT OF THE INTERIOR Larry Echo Hawk, to the land described above, nor does it affect any valid existing easements for Bureau of Indian Affairs Assistant Secretary—Indian Affairs. [FR Doc. 2011–17801 Filed 7–13–11; 8:45 am] public roads and highways, public utilities and for railroads and pipelines Proclaiming Certain Lands, Maier BILLING CODE 4310–W7–P Property, as an Addition to the Bay and any other rights-of-way or Mills Indian Community of Michigan reservations of record. DEPARTMENT OF THE INTERIOR Dated: July 7, 2011. AGENCY: Bureau of Indian Affairs, Larry Echo Hawk, Interior. Bureau of Indian Affairs Assistant Secretary—Indian Affairs. ACTION: Notice of Reservation [FR Doc. 2011–17799 Filed 7–14–11; 8:45 am] Proclamation. Proclaiming Certain Lands, Community College Campus, as an BILLING CODE 4310–W7–P SUMMARY: This notice informs the public Addition to the Bay Mills Indian that the Assistant Secretary—Indian Community of Michigan Affairs proclaimed approximately 40 DEPARTMENT OF THE INTERIOR AGENCY: Bureau of Indian Affairs, acres, more or less, to be added to the Interior. Bureau of Land Management Bay Mills Indian Community of Michigan. ACTION: Notice of Reservation [LLOR957000–L631000000–HD000 HAG11– Proclamation. 0274] FOR FURTHER INFORMATION CONTACT: Ben Burshia, Bureau of Indian Affairs, SUMMARY: This notice informs the public Filing of Plats of Survey; Oregon/ Division of Real Estate Services, Mail that the Assistant Secretary—Indian Washington Stop 4639–MIB, 1849 C Street, NW., Affairs proclaimed approximately 40 Washington, DC 20240, telephone (202) acres, more or less, to be added to the AGENCY: Bureau of Land Management, 208–7737. Bay Mills Indian Community of Interior. SUPPLEMENTARY INFORMATION: This Michigan. ACTION: Notice. FOR FURTHER INFORMATION CONTACT: Ben Notice is published in the exercise of SUMMARY: The plats of survey of the authority delegated by the Secretary of Burshia, Bureau of Indian Affairs, following described lands are scheduled the Interior to the Assistant Secretary— Division of Real Estate Services, Mail to be officially filed in the Bureau of Indian Affairs by part 209 of the Stop 4639–MIB, 1849 C Street, NW., Land Management Oregon/Washington Departmental Manual. Washington, DC 20240, telephone (202) State Office, Portland, Oregon, 30 days A proclamation was issued in 208–7737. from the date of this publication. accordance with Section 7 of the Act of SUPPLEMENTARY INFORMATION: This June 18, 1934 (48 Stat. 986; 25 U.S.C. Notice is published in the exercise of Willamette Meridian 467), for the land described below. The authority delegated by the Secretary of Oregon land was proclaimed to be an addition the Interior to the Assistant Secretary— T. 29 S., R. 3 W., accepted June 15, 2011. to and part of the Bay Mills Indian Indian Affairs by part 209 of the T. 26 S., R. 7 W., accepted June 15, 2011. Community of Michigan for the Departmental Manual. T. 10 S., R. 2 E., accepted June 23, 2011. exclusive use of Indians on that A proclamation was issued in T. 25 S., R. 3 W., accepted June 23, 2011. Reservation who are entitled to reside at accordance with Section 7 of the Act of T. 18 S., R. 28 E., accepted June 23 2011.

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T. 12 S., R. 1 E., accepted June 23, 2011. ACTION: Notice of Correction. through local media at least 15 days in T. 24 S., R. 4 W., accepted June 23, 2011. advance of the meetings. T. 1 S., R. 5 W., accepted June 23, 2011. SUMMARY: This notice corrects the ADDRESSES: Information will be T. 20 S., 33 1⁄2 E., accepted June 23, 2011. location and starting time of a meeting T. 26 S., R. 5 W., accepted June 23, 2011. available for public review and previously announced in a Federal comment online at http:// T. 24 S., R. 7 W., accepted June 23, 2011. Register notice published on June 27, T. 24 S., R. 8 W., accepted June 23, 2011. parkplanning.nps.gov/morr and at T. 33 S., R. 6 W., accepted June 23, 2011. 2011 (76 FR 37372). Washington’s Headquarters Museum in On page 37373, column 2, lines 7–8 Morristown National Historical Park, 30 Washington of the notice should read: ‘‘held on Washington Place, Morristown, NJ T. 33 N., R. 10 E., accepted June 15, 2011. August 11, 2011, from 6 p.m. to 8 p.m. 07960. ADDRESSES: A copy of the plats may be at the Bureau of Land Management, 920 FOR FURTHER INFORMATION CONTACT: obtained from the Land Office at the NE Main Street, Lewistown.’’ Superintendent, Morristown National Bureau of Land Management, Oregon/ Cynthia Staszak, Historical Park (973–539–2016, ext. Washington State Office, 333 SW. 1st Chief, Branch of Land Resources. 200). Avenue, Portland, Oregon 97204, upon required payment. A person or party [FR Doc. 2011–17716 Filed 7–13–11; 8:45 am] SUPPLEMENTARY INFORMATION: who wishes to protest against a survey BILLING CODE 4310–55–P Morristown NHP was established and is must file a notice that they wish to managed to reflect an 18th-century protest (at the above address) with the landscape pattern of field, forest, DEPARTMENT OF THE INTERIOR Oregon/Washington State Director, orchard and clearings that was present during the winter encampments of the Bureau of Land Management, Portland, National Park Service Oregon. Continental Army under General George Washington. The park’s General FOR FURTHER INFORMATION CONTACT: Kyle [2031–A153–422] Management Plan (GMP) further Hensley, (503) 808–6124, Branch of Vegetation and Deer Management Geographic Sciences, Bureau of Land indicates that rather than recreate an Plan/Environmental Impact Statement, exact replica of the encampment period, Management, 333 SW. 1st Avenue, Morristown National Historical Park, Portland, Oregon 97204. Persons who Morristown NHP will protect and foster New Jersey the landscape to include a broader use a telecommunications device for the cultural and ecological context. The deaf (TDD) may call the Federal AGENCY: Department of the Interior, GMP also specifies that an important Information Relay Service (FIRS) at 1– National Park Service. piece of this landscape and both its 800–877–8339 to contact the above ACTION: Notice of Intent to prepare an cultural and ecological contexts is a individual during normal business Environmental Impact Statement for a naturally regenerating mixed hardwood hours. The FIRS is available 24 hours a Vegetation and Deer Management Plan, forest that reflects historic character, day, 7 days a week, to leave a message Morristown National Historical Park, natural diversity, and natural processes. or question with the above individual. New Jersey. However, this critical element of the You will receive a reply during normal landscape is currently threatened, as business hours. SUMMARY: Pursuant to the National native species show little or no SUPPLEMENTARY INFORMATION: Before Environmental Policy Act of 1969, 42 regeneration. including your address, phone number, U.S.C. 4332(2)(C), the National Park Studies and ongoing monitoring show e-mail address, or other personal Service is preparing an Environmental that the loss of regeneration appears to identifying information in your Impact Statement (EIS) for a Vegetation be primarily due to two forces: current comment, you should be aware that and Deer Management Plan at levels of deer feeding and browsing, your entire comment—including your Morristown National Historical Park which contribute to lower tree seedling personal identifying information—may (NHP), New Jersey. The purpose of this regeneration rates; and the expansion of be made publicly available at any time. plan is to provide the framework for non-native invasive species, which are While you can ask us in your comment managing vegetation and deer browsing outcompeting native species and to withhold your personal identifying in order to promote a naturally depressing or eliminating native tree information from public review, we regenerating hardwood forest with seedling regeneration rates over much of cannot guarantee that we will be able to mixed-aged classes of trees that reflect the forest. do so. the historic and naturally diverse Over time, the absence of regeneration character of the park. Action is needed Fred O’Ferrall, will result in either: (1) Replacement of now to meet the Congressional intent forest stands with species that do not Chief, Branch of Land, Mineral, and Energy and the direction in the park’s general Resources. reflect the forest’s historic character or management plan (GMP) of maintaining natural diversity, or (2) the [FR Doc. 2011–17701 Filed 7–13–11; 8:45 am] a naturally regenerating and sustainable disappearance of mixed hardwoods BILLING CODE 4310–33–P forested landscape. altogether. DATES: The National Park Service will The National Park Service will DEPARTMENT OF THE INTERIOR accept comments from the public prepare a scoping newsletter which will through August 15, 2011. The National present the issues and statements of Bureau of Land Management Park Service intends to hold two public purpose, need, and objectives of the scoping meetings within the park at Vegetation and Deer Management Plan [61510–8451–0000; MTM 80092] Washington’s Headquarters Museum that the NPS has identified to date Notice of Proposed Withdrawal during the scoping period. Details during its internal scoping meetings. Extension and Notification of a Public regarding the exact dates and times of The newsletter also will provide Meeting; Montana; Correction these meetings will be announced in the information on upcoming public scoping newsletter, on the Internet (at scoping meetings that will be held to AGENCY: Bureau of Land Management, http://www.nps.gov/morr and http:// gather feedback on these topics. Copies Interior. parkplanning.nps.gov/morr), and of that information will be available

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online at http://parkplanning.nps.gov/ 5. Kalaupapa Fire Management Plan Tentative List should be nominated next morr or at Morristown NHP’s Update. by the United States to the World Washington’s Headquarters Museum, 30 6. Public Comments. Heritage List. This was the First Notice Washington Place, Morristown, New FOR FURTHER INFORMATION CONTACT: in the Federal Register, pursuant to 36 Jersey. Further information concerning this CFR 73.7(c). The Tentative List consists If you wish to comment on the meeting may be obtained from the of properties that appear to qualify for purpose, need, objectives, or on any Superintendent, Kalaupapa National World Heritage status and which may be other issues associated with the plan, Historical Park, P.O. Box 2222, considered for nomination by the you may submit your comments by one Kalaupapa, Hawaii 96742, telephone United States to the World Heritage List. of several methods: Via the Internet at (808) 567–6802 x 1100. The current Tentative List was transmitted to the UNESCO World http://parkplanning.nps.gov/morr SUPPLEMENTARY INFORMATION: The (preferred method); at upcoming public meeting is open to the public. Interested Heritage Centre on January 24, 2008. After review of the comments scoping meetings; and by mailing or persons may make oral/written provided by the public and consultation hand-delivering comments to presentations to the Commission or file with the Federal Interagency Panel for Superintendent, 30 Washington Place, written statements. Such requests World Heritage, the Department, in Morristown, NJ 07960. Before including should be made to the Superintendent accordance with 36 CFR Part 73, has your address, phone number, e-mail at least seven days prior to the meeting. address, or other personal identifying selected ‘‘Frank Lloyd Wright Before including your address, phone Buildings’’ and ‘‘Poverty Point State information in your comment, you number, e-mail address, or other should be aware that your entire Historic Site and National Monument’’ personal identifying information in your from the Tentative List as proposed comment—including your personal comment, you should be aware that identifying information—may be made nominations to the World Heritage List. your entire comment—including your With the assistance of the Department, publicly available at any time. While personal identifying information—may you can ask us in your comment to the owners of these sites are encouraged be made publicly available at any time. to prepare complete nomination withhold your personal identifying While you can ask us in your comment information from public review, we documents for the sites in accordance to withhold your personal identifying with 36 CFR Part 73 and the nomination cannot guarantee that we will be able to information from public review, we do so. format required by the World Heritage cannot guarantee that we will be able to Committee. A discussion of the Dennis R. Reidenbach, do so. decision, the nomination process and Regional Director, Northeast Region, National Dated: June 14, 2011. schedule and a summary of the Park Service. Stephen Prokop, comments as received follows. [FR Doc. 2011–17761 Filed 7–13–11; 8:45 am] Superintendent, Kalaupapa National Recommendations of the Federal BILLING CODE 4310–JW–P Historical Park. Interagency Panel for World Heritage [FR Doc. 2011–17779 Filed 7–13–11; 8:45 am] The Federal Interagency Panel for BILLING CODE 4132–GJ–P DEPARTMENT OF THE INTERIOR World Heritage assists the Department of the Interior in implementing the National Park Service DEPARTMENT OF THE INTERIOR Convention by making [8896–SZM] recommendations on U.S. World National Park Service Heritage policy, procedures, and Kalaupapa Federal Advisory nominations. The Panel is chaired by [NPS–OIA–WASO–0711–7740; 0050–673] Commission Meeting, July 26, 2011 the Assistant Secretary for Fish and Wildlife and Parks and includes AGENCY: National Park Service, Interior. Drafting of U.S. Nominations to the World Heritage List representatives from various Federal ACTION: Meeting Notice. Departments and agencies with Federal AGENCY: Department of the Interior, land management and policy-making SUMMARY: This notice sets the date of National Park Service. responsibilities. The Panel made its July 26, 2011, meeting of the Kalaupapa ACTION: Second Notice and Request for recommendations to the Department of Federal Advisory Commission. Comment. the Interior on the next U.S. World DATES: The public meeting of the Heritage nominations at a meeting on Kalaupapa Federal Advisory SUMMARY: This notice constitutes the May 9, 2011. Commission will be held on Tuesday, Second Notice in the Federal Register The Panel agreed by consensus to July 26, 2011, at 9 a.m. (Hawaii referred to in Sec. 73.7(f) of the World support the preparation of nominations Standard Time) Heritage Program regulations (36 CFR at this time for ‘‘Frank Lloyd Wright ADDRESSES: Location: The meeting will Part 73). It sets forth the decision to Buildings’’ and ‘‘Poverty Point State be held at McVeigh Social Hall, request that draft World Heritage Historic Site and National Monument.’’ Kalaupapa National Historical Park, nominations for 11 ‘‘Frank Lloyd Wright The Panel reviewed the public Kalaupapa, Hawaii 96742. Buildings’’ (in Arizona, California, suggestions for nominations for other Illinois, New York, Oklahoma, properties at this time from the U.S. Agenda Pennsylvania and Wisconsin) and World Heritage Tentative List but did The July 26, 2011, Commission ‘‘Poverty Point State Historic Site and not recommend the preparation of meeting will consist of the following: National Monument,’’ Louisiana, be nominations for any additional or 1. Superintendent’s Report. prepared, thereby notifying the owners alternate properties, noting that other 2. General Management Plan (GMP) and the public of this decision. good candidates on the Tentative List Update. On December 14, 2010 (75 FR 77901), would need more substantial work or 3. Commercial Air Service Status at the Department of the Interior requested assistance before they could be expected Kalaupapa. public comment on which property or to develop viable nominations. Panel 4. Memorial Project Update. properties on the U.S. World Heritage members emphasized the considerable

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work and cost involved in developing studios and schools, four residences he settlement of its time in North America, nomination documents, and wanted to designed for others, two office it was, more significantly, built by a ensure that any nominations drafted complexes, a place of worship, a foraging society of hunter-gatherers, not have the best possible chance of success museum, and a governmental complex. a settled agricultural people, which when they may be considered by the The Frank Lloyd Wright Buildings makes it without parallel in world World Heritage Committee. were selected to prepare a nomination archeological and ethnographic records, as the candidate on the Tentative List challenging anthropology’s basic Decision To Request the Preparation of with the strongest international assumptions about hunter-gatherer Two U.S. World Heritage Nominations recognition of global significance. It societies. The Department considered all would be the first U.S. nomination for Poverty Point was selected to prepare comments received during the comment 20th-century architecture, an area in a World Heritage nomination because it period as well as the advice of the which the United States has had a major is a virtually unique archeological site Federal Interagency Panel for World impact. The Frank Lloyd Wright that is recognized internationally. The Heritage in making the decisions to Building Conservancy is providing nomination effort has the strong support request drafts for two U.S. World strong leadership in the preparation of of the State of Louisiana, which has Heritage nominations. a nomination. shown excellent progress in developing Brief descriptions are provided for The Department received 16 materials for a nomination. The these potential nominations along with comments on this proposal; nine Department received 10 comments on a summary of the comments about them expressed general support. The Frank this site; four expressed general support. that had been received and were Lloyd Wright Building Conservancy, Lieutenant Governor Jay Dardenne, considered as part of this process. The which is coordinating the nomination speaking for the State of Louisiana as Department will decide whether to effort, detailed the work completed so the owner of the site, expressed strong nominate these two sites to the World far, including organizing the owners of support for the effort and cited work Heritage List based on complete draft the properties to coordinate done in preparation for a nomination, World Heritage nominations for them. management, obtaining advice from including consultation with Draft World Heritage nominations are Wright scholars, and drafting international experts. Two state senators requested of the owners for the nomination material. The Conservancy emphasized the site’s readiness to following sites. The titles of the also requested that the Herbert and prepare a nomination. The International nominations are subject to revision as Katharine Jacobs House in Madison, Committee on Archaeological Heritage the drafts are developed: Wisconsin, Wright’s first ‘‘Usonian’’ Management stated that the proposal is house, be added to the group of Frank Lloyd Wright Buildings well justified and that the Louisiana buildings. Three comments stated that team is capable of preparing a Unity Temple, Oak Park, Illinois this is the strongest candidate on the satisfactory nomination. Two comments (1905–08); Tentative List and should be the next to recommended that the site be combined Frederick C. Robie House, Chicago, be nominated. Two comments suggested with the Hopewell Ceremonial Illinois (1908–10); changing the name of the proposal. Earthworks and Serpent Mound, the Hollyhock House, Los Angeles, Three comments suggested adding other other archeological sites on the California (1919–21); Wright buildings to the series (not Tentative List; one of these suggested Taliesin, Spring Green, Wisconsin including the Jacobs House). that the grouping be an extension to the (1911 and later); The Department agrees that the Jacobs Cahokia Mounds World Heritage Site in Fallingwater, Mill Run, Pennsylvania House, which was initially part of the Illinois. The Department believes that (1936–38); 2007 proposal by the Conservancy, the archeological sites in Louisiana, Herbert and Katherine Jacobs House, should be part of the nomination; the Illinois and Ohio are sufficiently Madison, Wisconsin (1937); Wisconsin Historical Society now holds culturally distinct to merit separate S. C. Johnson & Son, Inc., a preservation covenant on the house. World Heritage listing. Administration Building and Research Other than this addition, the Tower, Racine, Wisconsin (1936–39; Department believes that the DATES: Draft World Heritage 1943–50); Conservancy has followed a systematic nominations for ‘‘Frank Lloyd Wright Taliesin West, Scottsdale, Arizona and defensible process to identify the Buildings’’ and ‘‘Poverty Point State (1938); most significant Wright buildings to Historic Site and National Monument’’ Price Tower, Bartlesville, Oklahoma include, and does not support further must be prepared and submitted in (1953–56); additions. substantially complete draft form to the Solomon R. Guggenheim Museum, The Department is prepared to National Park Service by July 1, 2012 in New York, New York (1956–59); reconsider the name of the series to order for a nomination to potentially be Marin County Civic Center, San ensure that the emphasis of the submitted to the UNESCO World Rafael, California (1960–69). nomination is on the significance of the Heritage Centre by the United States by These eleven properties are among the buildings rather than their architect. February 1, 2013. (The July 1, 2011 date most iconic, intact, representative, stated in the First Notice is no longer innovative, and influential of the more Poverty Point, Louisiana feasible given the time that has elapsed than 400 Frank Lloyd Wright (1867– This vast complex of earthen since its publication.) The World 1959) designs that have been erected. structures, constructed 3,100–3,700 Heritage nomination format may be They span almost sixty years of his years ago, may be the largest hunter- found at the World Heritage Centre Web efforts to create an ‘‘organic gatherer settlement that has ever site at http://whc.unesco.org/en/ architecture’’ that attracted widespread existed. Located on a bayou west of the nominationform. The National Park international attention and powerfully Mississippi River in northeastern Service will coordinate the review and affected the course of modern Louisiana, it is an integrated complex of evaluation of the draft nominations. architecture around the world as well as earthen mounds, enormous concentric Submission of interim draft in the United States. The properties ridges, and a large plaza. Not only was nominations to the World Heritage include his two long-time homes with it the largest and most elaborate Centre for technical review must be

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made by September 30, 2012. The World Heritage List at its annual published a request for comments in the Centre is to provide comments by meeting each summer. Federal Register (Volume 75, Number November 15, 2012. The Federal There are 911 sites in 151 of the 187 239, pages 77901–77903), on which of Interagency Panel for World Heritage signatory countries. Currently there are the sites on the Tentative List should be will review draft nominations following 21 World Heritage Sites in the United nominated next by the United States. receipt of the Centre’s comments. The States. Comments were accepted through Interagency Panel will evaluate the U.S. participation and the roles of the January 13, 2011, thirty days from the adequacy of the nominations, the Department of the Interior and the date of publication of the notice in the significance of the properties and National Park Service are authorized by Federal Register. Respondents were whether the nominations should be Title IV of the Historic Preservation Act asked to address the qualifications of forwarded to the World Heritage Centre Amendments of 1980 and conducted in the Tentative List properties for to be considered for listing. Final accordance with 36 CFR Part 73—World nomination by the United States to the submittal to the World Heritage Centre Heritage Convention. The National Park World Heritage List. by the Department of the Interior Service serves as the principal technical A summary of the comments received through the Department of State is agency for World Heritage in the appears below organized by site, along required by February 1, 2013, if the Department of the Interior, which has with the Department’s responses as properties are to be considered in the the lead role for the U.S. Government in appropriate. Comments on the two sites next cycle of nominations to the World the implementation of the Convention that are proposed for nomination appear Heritage List. Submittal of final and manages all or parts of 17 of the 21 in the discussion of the decision. The nominations must be made no later than U.S. World Heritage Sites, including Department received 172 comments and that date for the World Heritage Yellowstone National Park, the an Internet petition with 830 signatures. Committee to be able to consider them Everglades, and the Statue of Liberty. The comments were also available to the at its annual meeting in the summer of A Tentative List is a national list of Federal Interagency Panel for World 2014. natural and cultural properties Heritage and to the Department of the Protective measures must be in place appearing to meet the World Heritage Interior officials who have selected the before a property may be nominated as Committee eligibility criteria for properties that are asked to prepare nomination to the World Heritage List. provided for in 36 CFR 73.13. If a nominations. The full texts of all the A country cannot nominate a property nomination cannot be completed in comments are available upon request. unless it has been on its Tentative List accordance with this timeline, work Comments were also sought on for a minimum of a year. Countries are may continue into the following year(s) potential additions to the Tentative List. limited to nominating no more than two for subsequent submission to UNESCO. These comments are on file to be sites in any given year. considered by the Federal Interagency FOR FURTHER INFORMATION CONTACT: Neither inclusion in the Tentative List Panel and the Department of the Interior Jonathan Putnam, 202–354–1809 or nor inscription as a World Heritage Site in due course. April Brooks, 202–354–1808. For imposes legal restrictions on owners or complete information about U.S. neighbors of sites, nor does it give the Cultural Sites participation in the World Heritage United Nations any management Civil Rights Movement Sites, Alabama: Program, please see the National Park authority or ownership rights in U.S. Dexter Ave. King Memorial Baptist Service Office of International Affairs’ World Heritage Sites, which continue to Church, Montgomery; Bethel Baptist Web site at: http://www.nps.gov/oia/ be subject only to U.S. law. Inclusion in Church, Birmingham; 16th St. Baptist topics/worldheritage/worldheritage.htm. the Tentative List merely indicates that Church, Birmingham To request paper copies of documents the property may be further examined discussed in this notice, please contact for possible World Heritage nomination The Department received seven April Brooks, Office of International in the future. comments: Three expressed general Affairs, National Park Service, 1201 Eye The World Heritage Committee’s support and four recommended that a Street, NW., (0050) Washington, DC Operational Guidelines ask participating variety of additional sites be added to 20005. E-mail: [email protected]. nations to provide Tentative Lists, the grouping to more comprehensively SUPPLEMENTARY INFORMATION: which aid in evaluating properties for represent the topic. the World Heritage List on a The Department agrees that additional Background comparative international basis and sites will need to be added before this The World Heritage List is an help the Committee to schedule its work proposal could be considered for international list of cultural and natural over the long term. The Guidelines nomination. properties nominated by the signatories recommend that a nation review its Dayton Aviation Sites, Ohio: Wright to the World Heritage Convention Tentative List at least once every Cycle Company and Wright & Wright (1972). The United States was the prime decade. Printing; Huffman Prairie Flying Field; architect of the Convention, an NPS prepared and submitted (through Wright Hall; Hawthorn Hill international treaty for the preservation the Secretary of the Interior and the of natural and cultural heritage sites of Secretary of State) to the World Heritage The Department received 14 global significance proposed by Centre of UNESCO on January 24, 2008, comments: Four expressed general President Richard M. Nixon in 1971, an updated Tentative List. The support. The other 10 recommended and the U.S. was the first nation to ratify Tentative List was published in the that Wright Brothers National Memorial it. The United States served its fourth Federal Register on March 19, 2008. in Kitty Hawk, NC be added to the term on the World Heritage Committee The process for developing the U.S. group; two of these commenters also from 2005–2009. The Committee, Tentative List is detailed on the NPS questioned whether Hawthorn Hill composed of representatives of 21 Office of International Affairs Web site should be included in the group, and nations periodically elected as the at: http://www.nps.gov/oia/topics/ one also questioned the inclusion of the governing body of the World Heritage worldheritage/worldheritage.htm. Wright Cycle Company Building. Convention, makes the final decisions Summary of other Public Comments: The Department acknowledges that on which nominations to accept on the On December 14, 2010, the Department some of the components of this proposal

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may have difficulties in meeting the extend the existing World Heritage Serpent Mound State Memorial, Ohio technical requirements of the World listing of Monticello and the University The Department received 67 Heritage Committee, and that such of Virginia as an elaboration of the comments: 53 expressed general issues would have to be resolved before Jeffersonian architectural idea; three of support. The Executive Director of the a nomination could be made. The the others indicated that Poplar Forest Ohio Historical Society wrote as the Wright Brothers National Memorial was was a weaker component and should be owner of the site that he recommended nominated unsuccessfully in 1981 by reconsidered, and one of these also said combining the site with the Hopewell the United States, and the Department that alterations to the State Capitol must Ceremonial Earthworks; nine other believes that the issues raised at that be addressed carefully. Two comments comments made a similar suggestion. time may still affect a potential said that other properties on the Richard D. Shiels, Director of the nomination. Tentative List should have priority over Newark Earthworks Center of the Ohio an extension to an existing listing. State University and E. Gordon Gee, Hopewell Ceremonial Earthworks, Ohio: The Department acknowledges that President of the University, cited public Fort Ancient State Memorial; Hopewell the issue raised in these comments will interpretive and outreach work and Culture National Historical Park; need to be considered. Newark Earthworks State Memorial research related to the site, including a The Department received 95 Mount Vernon, Virginia planned symposium. Two comments comments: 71 of them, plus the Internet The Department received four recommended that the site be combined petition with 830 signatures, expressed comments. One expressed general with both the Hopewell Ceremonial general support, and four provided more support. The others made various Earthworks and with Poverty Point in substantive expressions of support, suggestions for how this site, which was Louisiana; one of these suggested that including information from Federal and unsuccessfully nominated in 2009, the grouping be an extension to the State site owners and stewards on work might be reformulated for possible Cahokia Mounds World Heritage Site in that has begun to document the nomination again in the future. Illinois. properties and engage in public The Department believes that the San Antonio Franciscan Missions, archeological sites in Louisiana, Illinois outreach, including a planned Texas: San Antonio Missions National symposium. Eleven specifically and Ohio are sufficiently culturally Historical Park and the Alamo (Mission distinct to merit separate World recommended that the group of sites be San Antonio) expanded to include Serpent Mound Heritage listing. It has considered the State Memorial in Ohio, which is The Department received 43 justifications proposed for adding included as a separate site for comments: 32 expressed general Serpent Mound to the Hopewell nomination on the Tentative List. Three support; this included numerous elected grouping. At this time, it believes that recommended that all these sites be officials. Six comments provided more the original formulation would still be combined with Poverty Point, the other substantive expressions of support, the most strongly justifiable. There is archeological site on the Tentative List; including information from Federal and insufficient evidence to link Serpent one of these suggested that the grouping State site owners, the Archbishop of San Mound to the Hopewell culture sites, be an extension to the Cahokia Mounds Antonio and others on work that has including conflicting evidence for its World Heritage Site in Illinois. One begun to prepare a nomination and on construction date. Serpent Mound has a noted concern over the management ongoing research and conservation of more distinctive identity as an effigy organization and the sufficiency of the sites. The Advisory Council on mound. preservation of the State-owned Historic Preservation and the National If the Ohio properties were to be components. Two objected to Trust for Historic Preservation suggested combined, a different justification for ‘‘Hopewell Ceremonial Earthworks’’ as that it might best be nominated as an Outstanding Universal Value and a the proposed name. The Department extension to the Mexican World revision of the World Heritage criteria believes that the archeological sites in Heritage site of the Franciscan Missions proposed to be met would have to be Louisiana, Illinois and Ohio are of the Sierra Gorda de Queretaro. The developed and agreed upon; such an sufficiently culturally distinct to merit U.S. chapter of the International Council effort, even if deemed viable, would separate World Heritage listing. It has on Monuments and Sites cited some require additional time and considered the justifications proposed potential weaknesses in the proposal consultation. for adding Serpent Mound to the that would need to be addressed. One Natural Sites Hopewell grouping. commenter stated that it should be At this time, it believes that the nominated at this time, although more Fagatele Bay National Marine Sanctuary original formulation would still be the justification as to how it fills a gap in The Department received four most strongly justifiable. If the Ohio the World Heritage List is needed; the comments: three expressed general properties were to be combined, a writer suggested that the agricultural support. The Marine Conservation different justification for Outstanding and cultural landscape aspects were Biology Institute recommended the Universal Value and a revision of the most significant, while the architecture nomination of the Marine Sanctuary to World Heritage criteria proposed to be is not exceptional in a global context. the World Heritage List. met would have to be developed and Another comment suggested that the The Department believes that Fagatele agreed upon; such an effort, even if context needs to address the whole Bay would be more likely to receive deemed viable, would require subject of Spanish colonial missions in international support were it nominated additional time and consultation. the Americas; that the core and buffer as a part of a significantly larger zones will be challenging to delineate; nomination, including other areas in Thomas Jefferson Buildings, Virginia: and that the acequia system should be American Samoa and perhaps elsewhere Poplar Forest, Bedford County; State highlighted. in the Pacific. Capitol, Richmond The Department believes that the The Department received seven range of comments accurately reflects a Okefenokee National Wildlife Refuge comments. Two expressed general number of issues that will need to be The Department received one support. One supported the proposal to addressed in a future nomination. comment, expressing general support.

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Petrified Forest National Park Commission’s TDD terminal on (202) refer to the docket number (‘‘Docket No. The Department received five 205–1810. 2828’’) in a prominent place on the comments; four expressed general SUPPLEMENTARY INFORMATION: The cover page and/or the first page. The support. Another noted that the site Commission has received a complaint Commission’s rules authorize filing continues to have problems with theft of filed on behalf of Apple Inc., f/k/a submissions with the Secretary by park resources. Apple Computer, Inc. on July 8, 2011. facsimile or electronic means only to the The complaint alleges violations of extent permitted by section 201.8 of the White Sands National Monument section 337 of the Tariff Act of 1930 (19 rules (see Handbook for Electronic The Department received five U.S.C. 1337) in the importation into the Filing Procedures, http://www.usitc.gov/ comments: four expressed general United States, the sale for importation, secretary/fed_reg_notices/rules/ support. Another made specific and the sale within the United States documents/ recommendations for edits and after importation of certain portable handbook_on_electronic_filing.pdf). additions to the site’s Tentative List electronic devices and related software. Persons with questions regarding application. The complaint names as respondents electronic filing should contact the Secretary (202–205–2000). Authority: 16 U.S.C. 470 a–1, a–2, d; 36 HTC Corp. of China; HTC America Inc. CFR Part 73. of Bellevue, WA and Exedea Inc. of Any person desiring to submit a Houston, TX. document to the Commission in Dated: July 7, 2011. The complainant, proposed confidence must request confidential Rachel Jacobson, respondents, other interested parties, treatment. All such requests should be Acting Assistant Secretary for Fish and and members of the public are invited directed to the Secretary to the Wildlife and Parks. to file comments, not to exceed five Commission and must include a full [FR Doc. 2011–17769 Filed 7–13–11; 8:45 am] pages in length, on any public interest statement of the reasons why the BILLING CODE 4312–52–P issues raised by the complaint. Commission should grant such Comments should address whether treatment. See 19 CFR 201.6. Documents issuance of an exclusion order and/or a for which confidential treatment by the INTERNATIONAL TRADE cease and desist order in this Commission is properly sought will be COMMISSION investigation would negatively affect the treated accordingly. All nonconfidential public health and welfare in the United written submissions will be available for Notice of Receipt of Complaint; States, competitive conditions in the public inspection at the Office of the Solicitation of Comments Relating to United States economy, the production Secretary. the Public Interest of like or directly competitive articles in This action is taken under the authority of section 337 of the Tariff Act AGENCY: U.S. International Trade the United States, or United States Commission. consumers. of 1930, as amended (19 U.S.C. 1337), and of sections 201.10 and 210.50(a)(4) ACTION: Notice. In particular, the Commission is interested in comments that: of the Commission’s Rules of Practice SUMMARY: Notice is hereby given that (i) Explain how the articles and Procedure (19 CFR 201.10, the U.S. International Trade potentially subject to the orders are used 210.50(a)(4)). Commission has received a complaint in the United States; By order of the Commission. entitled In Re Portable Electronic (ii) Identify any public health, safety, Issued: July 8, 2011. Devices and Related Software, DN 2828; or welfare concerns in the United States James R. Holbein, the Commission is soliciting comments relating to the potential orders; Secretary to the Commission. on any public interest issues raised by (iii) Indicate the extent to which like [FR Doc. 2011–17678 Filed 7–13–11; 8:45 am] the complaint. or directly competitive articles are BILLING CODE 7020–02–P FOR FURTHER INFORMATION CONTACT: produced in the United States or are James R. Holbein, Secretary to the otherwise available in the United States, Commission, U.S. International Trade with respect to the articles potentially INTERNATIONAL TRADE Commission, 500 E Street, SW., subject to the orders; and COMMISSION Washington, DC 20436, telephone (202) (iv) Indicate whether Complainant, 205–2000. The public version of the Complainant’s licensees, and/or third [Inv. No. 337–TA–786] complaint can be accessed on the party suppliers have the capacity to In the Matter of Certain Integrated Commission’s electronic docket (EDIS) replace the volume of articles Circuits, Chipsets, and Products at http://edis.usitc.gov, and will be potentially subject to an exclusion order Containing Same Including available for inspection during official and a cease and desist order within a Televisions; Notice of Institution of business hours (8:45 a.m. to 5:15 p.m.) commercially reasonable time. Investigation; Institution of in the Office of the Secretary, U.S. Written submissions must be filed no Investigation Pursuant to 19 U.S.C. International Trade Commission, 500 E later than by close of business, five 1337 Street, SW., Washington, DC 20436, business days after the date of telephone (202) 205–2000. publication of this notice in the Federal AGENCY: U.S. International Trade General information concerning the Register. There will be further Commission. Commission may also be obtained by opportunities for comment on the ACTION: Notice. accessing its Internet server (http:// public interest after the issuance of any www.usitc.gov). The public record for final initial determination in this SUMMARY: Notice is hereby given that a this investigation may be viewed on the investigation. complaint was filed with the U.S. Commission’s electronic docket (EDIS) Persons filing written submissions International Trade Commission on June at http://edis.usitc.gov. Hearing- must file the original document and 12 8, 2011, under section 337 of the Tariff impaired persons are advised that true copies thereof on or before the Act of 1930, as amended, 19 U.S.C. information on this matter can be deadlines stated above with the Office 1337, on behalf of Freescale obtained by contacting the of the Secretary. Submissions should Semiconductor, Inc. of Austin, Texas.

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The complaint alleges violations of containing same including televisions 19 CFR 201.16(d)–(e) and 210.13(a), section 337 based upon the importation that infringe one or more of claims 9 such responses will be considered by into the United States, the sale for and 10 of the ‘455 patent, and whether the Commission if received not later importation, and the sale within the an industry in the United States exists than 20 days after the date of service by United States after importation of as required by subsection (a)(2) of the Commission of the complaint and certain integrated circuits, chipsets, and section 337; the notice of investigation. Extensions of products containing same including (2) For the purpose of the time for submitting responses to the televisions by reason of infringement of investigation so instituted, the following complaint and the notice of certain claims of U.S. Patent No are hereby named as parties upon which investigation will not be granted unless 5,467,455 (‘‘the ‘455 patent’’). The this notice of investigation shall be good cause therefor is shown. complaint further alleges that an served: Failure of a respondent to file a timely industry in the United States exists as (a) The complainant is: Freescale response to each allegation in the required by subsection (a)(2) of section Semiconductor, Inc., 6501 William complaint and in this notice may be 337. Cannon Drive West, Austin, TX 78735. deemed to constitute a waiver of the The complainant requests that the (b) The respondents are the following right to appear and contest the Commission institute an investigation entities alleged to be in violation of allegations of the complaint and this and, after the investigation, issue an section 337, and are the parties upon notice, and to authorize the exclusion order and cease and desist which the complaint is to be served: administrative law judge and the orders. Funai Electric Co., Ltd., 7–7–1 Commission, without further notice to the respondent, to find the facts to be as ADDRESSES: The complaint, except for Nakagaito, Daito, Osaka 574–0013, alleged in the complaint and this notice any confidential information contained Japan. and to enter an initial determination therein, is available for inspection Funai Corporation, Inc., 201 Route 17, and a final determination containing during official business hours (8:45 a.m. Suite 903, Rutherford, NJ 07070. such findings, and may result in the to 5:15 p.m.) in the Office of the MediaTek Inc., No. 1 Dusing Road, issuance of an exclusion order or a cease Secretary, U.S. International Trade Hsinchu Science Park, Hsinchu City, and desist order or both directed against Commission, 500 E Street, SW., Room Taiwan 30078. the respondent. 112, Washington, DC 20436, telephone Zoran Corporation, 1390 Kifer Road, (202) 205–2000. Hearing impaired Sunnyvale, CA 94086. Issued: July 8, 2011. individuals are advised that information (c) The Office of Unfair Import By order of the Commission. on this matter can be obtained by Investigations, U.S. International Trade James R. Holbein, contacting the Commission’s TDD Commission, 500 E Street, SW., Suite Secretary to the Commission. 401, Washington, DC 20436; and terminal on (202) 205–1810. Persons [FR Doc. 2011–17685 Filed 7–13–11; 8:45 am] (3) For the investigation so instituted, with mobility impairments who will BILLING CODE 7020–02–P need special assistance in gaining access the Honorable Paul J. Luckern, Chief to the Commission should contact the Administrative Law Judge, U.S. Office of the Secretary at (202) 205– International Trade Commission, shall INTERNATIONAL TRADE 2000. General information concerning designate the presiding Administrative COMMISSION the Commission may also be obtained Law Judge. by accessing its internet server at The Commission notes that issues [Investigation No. 337–TA–771] regarding whether Complainant may be http://www.usitc.gov. The public record In the Matter of Certain Electronic for this investigation may be viewed on precluded from asserting its complaint in light of a Commission decision in a Devices, Including Mobile Phones, the Commission’s electronic docket Mobile Tablets, Portable Music (EDIS) at http://edis.usitc.gov. prior investigation involving the same patent may be present here. In Players, and Computers, and FOR FURTHER INFORMATION CONTACT: The Components Thereof; Notice of Office of Unfair Import Investigations, instituting this investigation, the Commission has not made any Commission Decision Not To Review U.S. International Trade Commission, an Initial Determination Terminating telephone (202) 205–2560. determination as to whether Complainant is so precluded. the Investigation on the Basis of a Authority: The authority for institution of Accordingly, the presiding Settlement Agreement this investigation is contained in section 337 administrative law judge may wish to of the Tariff Act of 1930, as amended, and AGENCY: U.S. International Trade in section 210.10 of the Commission’s Rules consider this issue at an early date. Any Commission. of Practice and Procedure, 19 CFR 210.10 such decision should be issued in the ACTION: Notice. (2011). form of an initial determination (ID) under Rule 210.42(c), 19 CFR 210.42(c). SUMMARY: Notice is hereby given that Scope of Investigation: Having The ID will become the Commission’s the U.S. International Trade considered the complaint, the U.S. final determination 45 days after the Commission has determined not to International Trade Commission, on date of service of the ID unless the review the presiding administrative law July 7, 2011, Ordered That – Commission determines to review the judge’s (‘‘ALJ’’) initial determination (1) Pursuant to subsection (b) of ID. Any such review will be conducted (‘‘ID’’) (Order No. 8) granting a joint section 337 of the Tariff Act of 1930, as in accordance with Commission Rules motion to terminate the investigation. amended, an investigation be instituted 210.43, 210.44 and 210.45, 19 CFR FOR FURTHER INFORMATION CONTACT: to determine whether there is a 210.43, 210.44, and 210.45. Sidney A. Rosenzweig, Office of the violation of subsection (a)(1)(B) of Responses to the complaint and the General Counsel, U.S. International section 337 in the importation into the notice of investigation must be Trade Commission, 500 E Street, SW., United States, the sale for importation, submitted by the named respondents in Washington, DC 20436, telephone (202) or the sale within the United States after accordance with section 210.13 of the 708–2532. Copies of non-confidential importation of certain integrated Commission’s Rules of Practice and documents filed in connection with this circuits, chipsets, and products Procedure, 19 CFR 210.13. Pursuant to investigation are or will be available for

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inspection during official business INTERNATIONAL TRADE importation into the United States, the hours (8:45 a.m. to 5:15 p.m.) in the COMMISSION sale for importation, and the sale within Office of the Secretary, U.S. the United States after importation of [Investigation No. 337–TA–704] International Trade Commission, 500 E certain mobile communications and Street, SW., Washington, DC 20436, In the Matter of Certain Mobile computer devices and components telephone (202) 205–2000. General Communications and Computer thereof by reason of infringement of information concerning the Commission Devices and Components Thereof; certain claims of U.S. Patent Nos. may also be obtained by accessing its Notice of Commission Determination 5,379,431; 5,455,599; 5,519,867; Internet server at http://www.usitc.gov. Not To Review an Initial Determination 5,915,131; 5,920,726; 5,969,705; The public record for this investigation Terminating the Investigation in Its 6,343,263; 6,424,354; and RE39,486. The may be viewed on the Commission’s Entirety on the Basis of a Settlement complaint further alleges the existence electronic docket (EDIS) at http:// Agreement; Termination of of a domestic industry. The edis.usitc.gov. Hearing-impaired Investigation Commission’s notice of investigation persons are advised that information on named Nokia as respondent. this matter can be obtained by AGENCY: U.S. International Trade On June 16, 2011, Apple and Nokia contacting the Commission’s TDD Commission. jointly moved to terminate this terminal on (202) 205–1810. ACTION: Notice. investigation in its entirety in view of a settlement agreement and a license SUPPLEMENTARY INFORMATION: The SUMMARY: Notice is hereby given that agreement between the parties. On June Commission instituted this investigation the U.S. International Trade 17, 2011, the Commission Investigative on April 29, 2011, based on a complaint Commission has determined not to attorney filed a response in support of filed by Nokia Corporation of Finland; review the presiding administrative law the motion. Nokia Inc. of White Plains, New York; judge’s (‘‘ALJ’’) initial determination On June 24, 2011, the ALJ issued the and Intellisync Corporation of White (‘‘ID’’) (Order No. 73) granting a joint subject ID, granting pursuant to Plains, New York (collectively ‘‘Nokia’’), motion by complainant Apple Inc., f/k/ Commission Rule 210.21(b) (19 CFR alleging a violation of section 337 of the a Apple Computer, Inc. of Cupertino, 210.21(b)) the joint motion to terminate Tariff Act of 1930, as amended, 19 California (‘‘Apple’’) and respondents the investigation in its entirety. No U.S.C. 1337, in the importation, sale for Nokia Corporation of Espoo, Finland petitions for review were filed. importation and sale within the United and Nokia Inc. of White Plains, New The Commission has determined not States after importation of certain York (collectively ‘‘Nokia’’) to terminate to review the ID. mobile phones, mobile tablets, portable in its entirety Inv. No. 337–TA–704, The authority for the Commission’s music players, and computers. 76 FR Certain Mobile Communications and determination is contained in section 24051 (Apr. 29, 2011). The complaint Computer Devices and Components 337 of the Tariff Act of 1930, as named as the respondent Apple Inc. of Thereof based on a settlement amended (19 U.S.C. 1337), and in Cupertino, California (‘‘Apple’’). The agreement. section 210.42 of the Commission’s complaint alleges that certain Apple FOR FURTHER INFORMATION CONTACT: Rules of Practice and Procedure (19 CFR products infringe various claims of 210.42). seven patents: U.S. Patent Nos. Megan M. Valentine, Office of the 7,209,911; 6,212,529; 6,141,664; General Counsel, U.S. International By order of the Commission. 7,558,696; 6,445,932; 5,898,740; and Trade Commission, 500 E Street, SW., Issued: July 11, 2011. 7,319,874. Washington, DC 20436, telephone (202) James R. Holbein, 708–2301. Copies of non-confidential On June 16, 2011, Nokia and Apple Secretary to the Commission. documents filed in connection with this [FR Doc. 2011–17699 Filed 7–13–11; 8:45 am] filed their Joint Motion to Terminate investigation are or will be available for BILLING CODE 7020–02–P Investigation No. 337–TA–771 on the inspection during official business Basis of Settlement Agreement. On June hours (8:45 a.m. to 5:15 p.m.) in the 17, 2011, the Commission investigative Office of the Secretary, U.S. DEPARTMENT OF LABOR attorney filed a response that International Trade Commission, 500 E recommended that the Commission Street, SW., Washington, DC 20436, grant the motion. That same day, the Employment and Training telephone (202) 205–2000. General Administration ALJ granted the motion as an ID (Order information concerning the Commission No. 8). may also be obtained by accessing its [TA–W–75,120A] No petitions for review of the ID were Internet server at http://www.usitc.gov. Steelcase, Inc., North America filed. The Commission has determined The public record for this investigation Division, Including Workers From not to review the ID. may be viewed on the Commission’s Steelcase University Also Known as The authority for the Commission’s electronic docket (EDIS) at http:// edis.usitc.gov. Hearing-impaired Steelcase Learning Center, a determination is contained in section Subsidiary of Steelcase, Inc., Including 337 of the Tariff Act of 1930, as persons are advised that information on this matter can be obtained by On-Site Leased Workers From amended (19 U.S.C. 1337), and in Part Manower, Inc., Grand Rapids, MI; 210 of the Commission’s Rules of contacting the Commission’s TDD terminal on (202) 205–1810. Amended Certification Regarding Practice and Procedure (19 CFR part Eligibility To Apply for Worker SUPPLEMENTARY INFORMATION: 210). The Adjustment Assistance Commission instituted this investigation By order of the Commission. on February 24, 2010, based on a In accordance with Section 223 of the Issued: July 8, 2011. complaint filed by Apple. 75 FR 8399– Trade Act of 1974, as amended (‘‘Act’’), James R. Holbein, 400. The complaint, as amended and 19 U.S.C. 2273, the Department of Labor Secretary to the Commission. supplemented, alleges violations of issued a Certification of Eligibility to [FR Doc. 2011–17677 Filed 7–13–11; 8:45 am] Section 337 of the Tariff Act of 1930, as Apply for Worker Adjustment BILLING CODE 7020–02–P amended, 19 U.S.C. 1337, in the Assistance on February 4, 2011,

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applicable to workers of Steelcase, Inc., The amended notice applicable to the Director of the Office of Trade North America Division, including on- TA–W–75,120A is hereby issued as Adjustment Assistance, Employment site leased workers from Manpower, follows: and Training Administration, has Inc., Grand Rapids, Michigan. The ‘‘All workers of Steelcase, Inc., North instituted investigations pursuant to workers are engaged in the production America Division, including workers from Section 221 (a) of the Act. of office furniture. The notice was Steelcase University, also known as Steelcase The purpose of each of the published in the Federal Register on Learning Center, a subsidiary of Steelcase, investigations is to determine whether February 24, 2011 (76 FR 10399). The Inc., including on-site leased workers from the workers are eligible to apply for notice was amended on February 24, Manpower, Inc., Grand Rapids, Michigan adjustment assistance under Title II, 2011 to correct the impact date to read (TA–W–75,120A), who became totally or Chapter 2, of the Act. The investigations December 10, 2010. The amended notice partially separated from employment on or will further relate, as appropriate, to the after December 10, 2010 through February 4, was published in the Federal Register 2013, and all workers in the group threatened determination of the date on which total on March 10, 2011 (76 FR 13228). with total or partial separation from or partial separations began or At the request of the State Agency, the employment on date of certification through threatened to begin and the subdivision Department reviewed the certification two years from the date of certification, are of the firm involved. for workers of the subject firm. eligible to apply for adjustment assistance The petitioners or any other persons under Chapter 2 of Title II of the Trade Act showing a substantial interest in the The review shows Steelcase of 1974, as amended.’’ subject matter of the investigations may University, also known as Steelcase Signed in Washington, DC, this 5th day of request a public hearing, provided such Learning Center, is a subsidiary of July, 2011. request is filed in writing with the Steelcase, Inc. Since Steelcase Del Min Amy Chen, Director, Office of Trade Adjustment University, also known as Steelcase Certifying Officer, Office of Trade Adjustment Assistance, at the address shown below, Learning Center, a subsidiary of Assistance. not later than July 25, 2011. Steelcase, Inc. operates internally with Interested persons are invited to Steelcase, Inc., only provides services to [FR Doc. 2011–17668 Filed 7–13–11; 8:45 am] BILLING CODE 4510–FN–P submit written comments regarding the the parent company, Steelcase, Inc. and subject matter of the investigations to both are experiencing worker layoffs. the Director, Office of Trade Adjustment Based on these findings, the DEPARTMENT OF LABOR Assistance, at the address shown below, Department is amending this not later than July 25, 2011. certification to include workers of Employment and Training The petitions filed in this case are Steelcase University, also known as Administration available for inspection at the Office of Steelcase Learning Center, a subsidiary the Director, Office of Trade Adjustment of Steelcase, Inc., Grand Rapids, Investigations Regarding Certifications Assistance, Employment and Training Michigan. of Eligibility To Apply for Worker Administration, U.S. Department of Adjustment Assistance and Alternative Labor, Room N–5428, 200 Constitution The intent of the Department’s Trade Adjustment Assistance certification is to include all workers Avenue, NW., Washington, DC 20210. employed at Steelcase, Inc., North Petitions have been filed with the Signed at Washington, DC this 1st day of America Division, Grand Rapids, Secretary of Labor under Section 221 (a) July 2011. Michigan who were adversely affected of the Trade Act of 1974 (‘‘the Act’’) and Michael W. Jaffe, by a shift in production of office are identified in the Appendix to this Certifying Officer, Office of Trade Adjustment furniture to Mexico. notice. Upon receipt of these petitions, Assistance.

APPENDIX [11 TAA petitions instituted between 6/20/11 and 6/24/11]

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

80242 ...... M/A—Com Technical Solutions (State/One-Stop) ...... Torrance, CA ...... 06/20/11 06/17/11 80243 ...... Cleo Inc. (Company) ...... Memphis, TN ...... 06/21/11 06/09/11 80244 ...... STMicroelectronics (Company) ...... Coppell, TX ...... 06/22/11 06/17/11 80245 ...... Kavlico Corporation (State/One-Stop) ...... Moorpark, CA ...... 06/22/11 06/21/11 80246 ...... Border Apparel (Workers) ...... El Paso, TX ...... 06/22/11 03/28/11 80247 ...... Dmat Ltd (Workers) ...... Moraine, OH ...... 06/22/11 06/15/11 80248 ...... Cascade Microtech Inc. (Company) ...... Beaverton, OR ...... 06/23/11 06/22/11 80249 ...... Staples (State/One-Stop) ...... Broomfield, CO ...... 06/23/11 06/21/11 80250 ...... Roseburg Forest Products (Union) ...... Coquille, OR ...... 06/23/11 06/21/11 80251 ...... Volunteer Apparell (Workers) ...... Luttrell, TN ...... 06/24/11 06/23/11 80252 ...... Dex One (Company) ...... Morrisville, NC ...... 06/24/11 06/23/11

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[FR Doc. 2011–17669 Filed 7–13–11; 8:45 am] Signed in Washington, DC, this 1st day of for students, teachers, and faculty; and July, 2011. BILLING CODE 4510–FN–P (3) build between STEM formal and Del Min Amy Chen, informal education providers strategic Certifying Officer, Office of Trade Adjustment partnerships and linkages that promote DEPARTMENT OF LABOR Assistance. STEM literacy and awareness of NASA’s [FR Doc. 2011–17670 Filed 7–13–11; 8:45 am] missions. Employment and Training BILLING CODE 4510–FN–P The new NASA STEM Education and Administration Outreach Generic Clearance is modeled on the National Science Foundation’s [TA–W–74,671] NATIONAL AERONAUTICS AND (NSF) Education Generic Clearance SPACE ADMINISTRATION (OMB 3145–0136). The scope of NASA’s Hewlett Packard Global Parts Supply proposed data collection is limited as [Notice (11–065)] Chain, Global Product Life Cycles was agreed in discussions conducted among NASA, NSF and OMB in October Management Unit Including Notice of Information Collection Teleworkers Reporting to Houston, TX; 2010 to (1) Staff and project participants; (2) project implementation Notice of Termination of Certification AGENCY: National Aeronautics and Space Administration (NASA). characteristics and (3) project outputs. The collection covers only descriptive This notice terminates the ACTION: Notice of information collection. information gathered through a variety Certification Regarding Eligibility to SUMMARY: The National Aeronautics and of methods, including surveys, face-to- Apply for Worker Adjustment Space Administration, as part of its face or telephone interviews, Assistance issued by the Department on continuing effort to reduce paperwork observations, and focus groups, from November 8, 2010 for all workers of and respondent burden, invites the participants or implementers of NASA- Hewlett Packard, Global Parts Supply general public and other Federal funded education or outreach projects. Chain, Global Product Life Cycles agencies to take this opportunity to Data is gathered from stakeholders and Management Unit, including comment on proposed and/or other program participants, including teleworkers reporting to Houston, Texas continuing information collections, as but not limited to students, faculty, (subject worker group). The notice was required by the Paperwork Reduction teachers, members of the public, published in the Federal Register on Act of 1995 (Pub. L. 104–13, 44 U.S.C. administrators and staff. NASA will use November 23, 2010 (75 FR 71460). 3506(c)(2)(A)). data from the NASA STEM Education On June 6, 2011, the Department DATES: All comments should be and Outreach Generic Clearance primarily for program planning, issued a Notice of Intent to Terminate submitted within September 12, 2011. management and accountability Certification Regarding Eligibility to ADDRESSES: All comments should be addressed to Lori Parker, National purposes in order to respond to queries Apply for Worker Adjustment from the Congress, the public and to Assistance applicable to workers and Aeronautics and Space Administration, Washington, DC 20546–0001. support Government and Performance former workers of the subject worker Modernization Act (GPRMA) FOR FURTHER INFORMATION CONTACT: group. The Department’s Notice of requirements, and similar Federal Intent to Terminate Certification was Requests for additional information or performance reporting purposes, such as published in the Federal Register on copies of the information collection to the U.S. Government Accountability June 13, 2011 (76 FR 34271). instrument(s) and instructions should Office (GAO). In 2011, GAO was asked be directed to Lori Parker, NASA PRA The Department has not received any by the U.S. Congress to conduct a study Officer, NASA Headquarters, 300 E to catalog Federal STEM education written comments from the group of Street, SW., JF000, Washington, DC workers or any persons showing a programs and determine the extent to 20546, (202) 358–1351, which overlap or potential duplication substantial interest in the termination of [email protected]. the certification issued under TA–W– exists. This Generic Clearance will SUPPLEMENTARY INFORMATION: enable NASA to respond to future such 74,671, pursuant to 29 CFR 90.17(b). requests that seek information from I. Abstract Since eligible workers of Hewlett Federal departments and agencies that Packard, Global Parts Supply Chain, NASA’s education and outreach will enable GAO to assemble a Global Product Life Cycles Management activities are funded by NASA’s Office compendium of Federal education Unit, including teleworkers reporting to of Education, Mission Directorates, and programs (pre-kindergarten through Houston, Texas (TA–W–74,671) who Offices of Chief Technologist and doctorate). Items in the survey are have not yet received TAA benefits will Communications. NASA’s Education informed by the 2011 experience. be eligible to apply for these benefits Coordinating Council includes Information from this collection may under TA–W–74,466I, a certification representatives from each of NASA’s also be published as part of NASA issued two months before TA–W– field Centers plus the Jet Propulsion Education Highlights documents that 74,671, the Department is terminating Laboratory (JPL), which deliver are available via the NASA Web site at: the later certification. It is the education and outreach. Data collection http://www.nasa.gov/offices/education/ Department’s intent to terminate the to be covered by this request are performance/index.html. organized around three goals: (1) This information is required for latter certification to correct the Contribute to the development of the effective administration and duplicate coverage of eligible workers Science, Technology, Engineering, communication relating to program and and the possibility of unintended Mathematics (STEM) workforce in project monitoring and evaluation, and duplication of benefits. disciplines needed to achieve NASA’s for measuring attainment of NASA’s Consequently, the certification issued strategic goals, through a portfolio of program, project and goals. Further, under investigation TA–W–74,671 has investments; (2) attract and retain some data collected may serve as been terminated. students in STEM disciplines through a baseline data for future, separate, progression of educational opportunities research or evaluation studies, or for the

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identification of treatment and control SUMMARY: This notice is issued in group, shall be a citizen or permanent groups for future study. In keeping with accordance with 42 U.S.C. 2451 resident of the United States; and (3) protocols long-established between NSF (314)(d). The 2011 Strong Tether shall not be a Federal entity or Federal and OMB, NASA proposed evaluation Challenge is scheduled and teams that employee acting within the scope of or research study will be cleared with wish to compete may register. their employment. OMB separately and will include Centennial Challenges is a program of III. Rules separate calls for public comment. prize competitions to stimulate innovation in technologies of interest II. Method of Collection The complete rules and team and value to NASA and the nation. The agreement for the 2011 Strong Tether Electronic. 2011 Strong Tether Challenge is a prize Challenge can be found at: http:// III. Data competition designed to encourage www.spaceward.org/challenges-ts. development of very strong, lightweight Dated: July 7, 2011. Title: NASA STEM Education Generic material for use in a multitude of Michael J. Gazarik, Clearance. structural applications. The Spaceward OMB Number: 2700–xxxx. Foundation administers the Challenge Deputy Chief Technologist. Type of review: Regular. for NASA. NASA is providing the prize [FR Doc. 2011–17665 Filed 7–13–11; 8:45 am] Affected Public: Individuals or purse. BILLING CODE 7510–13–P households, not-for-profit institutions, DATES: 2011 Strong Tether Challenge business or other for profit, and Federal, will be held on August 12, 2011. State, local or Tribal government. ADDRESSES: 2011 Strong Tether Number of Respondents: 2,236,000. THE NATIONAL FOUNDATION ON THE Challenge will be conducted at the 2011 Responses per Respondent: 1. ARTS AND THE HUMANITIES Space Elevator Conference held at the Annual Responses: 2,444,000. Microsoft Conference Center, 16156 NE. Hours per Request: 0.15–.5 hour. Federal Council on the Arts and the 36th St, Redmond, Washington. Annual Burden Hours: 245,333. Humanities; Arts and Artifacts Frequency of Report: On occasion, FOR FURTHER INFORMATION CONTACT: To Indemnity Panel Advisory Committee quarterly, semi-annually, annually. register for or get additional information regarding the 2011 Strong Tether AGENCY: The National Endowment for IV. Request for Comments Challenge, please visit: http:// the Humanities. Comments are invited on: (1) Whether www.spaceward.org/elevator2011-ts. ACTION: Notice of Meeting. the proposed collection of information For general information on the NASA is necessary for the proper performance Centennial Challenges Program please Pursuant to the provisions of the of the functions of NASA, including visit: http://www.nasa.gov/challenges. Federal Advisory Committee Act (Pub. whether the information collected has General questions and comments L. 92–463 as amended) notice is hereby practical utility; (2) the accuracy of regarding the program should be given that a meeting of the Arts and NASA’s estimate of the burden addressed to Dr. Larry Cooper, Artifacts Indemnity Panel of the Federal (including hours and cost) of the Centennial Challenges Program, NASA Council on the Arts and the Humanities proposed collection of information; (3) Headquarters 300 E Street, SW., will be held at 1100 Pennsylvania ways to enhance the quality, utility, and Washington, DC 20546–0001. E-mail Avenue, NW., Washington, DC 20506, clarity of the information to be address: [email protected]. in Room 730, from 9:30 a.m. to 5 p.m., collected; and (4) ways to minimize the SUPPLEMENTARY INFORMATION: on Monday, August 1, 2011. burden of the collection of information Summary The purpose of the meeting is to on respondents, including automated review applications for Certificates of collection techniques or the use of other The competition consists of Indemnity submitted to the Federal forms of information technology. measuring the tensile strength of a Council on the Arts and the Humanities Comments submitted in response to tether material. There are requirements for exhibitions beginning after October this notice will be summarized and for maximum mass and minimum 1, 2011. strength and length categories. The included in the request for OMB Because the proposed meeting will strongest sample that meets the criteria approval of this information collection. consider financial and commercial data is eligible to win the specified prize. They will also become a matter of and because it is important to keep public record. I. Prize Amounts values of objects, methods of Lori Parker, The total 2011 Strong Tether transportation, and security measures NASA PRA Clearance Officer. Challenge purse is $2,000,000 (two confidential, pursuant to the authority [FR Doc. 2011–17667 Filed 7–13–11; 8:45 am] million U.S. dollars). Incremental prizes granted me by the Chairman’s Delegation of Authority to Close BILLING CODE 7510–13–P will be offered for entries that meet specific requirements for strength and Advisory Committee Meetings, dated mass based on the length of the sample. July 19, 1993, I have determined that the NATIONAL AERONAUTICS AND meeting would fall within exemption (4) II. Eligibility SPACE ADMINISTRATION of 5 U.S.C. 552(b) and that it is essential To be eligible to win a prize to close the meeting to protect the free [Notice (11–063)] competitors must (1) Register and exchange of views and to avoid comply with all requirements in the interference with the operations of the Centennial Challenges 2011 Strong rules and team agreement; (2) in the Committee. Tether Challenge case of a private entity, shall be It is suggested that those desiring AGENCY: National Aeronautics and incorporated in and maintain a primary more specific information contact Space Administration (NASA). place of business in the United States, Advisory Committee Management and in the case of an individual, Officer, Michael P. McDonald, 1100 ACTION: Notice. whether participating singly or in a Pennsylvania Avenue, NW.,

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Washington, DC 20506, or call 202–606– Title 10 of the Code of Federal writing or in electronic form will be 8322. Regulations, Part 70, ‘‘Domestic posted on the NRC Web site and on the Licensing of Special Nuclear Material’’ Federal rulemaking Web site, http:// Michael P. McDonald, (10 CFR Part 70) contains the www.regulations.gov. Because your Management Officer, Advisory Committee. regulations applicable to fuel cycle comments will not be edited to remove [FR Doc. 2011–17767 Filed 7–13–11; 8:45 am] facility licensees that possess greater any identifying or contact information, BILLING CODE 7536–01–P than a critical mass of special nuclear the NRC cautions you against including material. Such licensees are authorized any information in your submission that to engage in enriched uranium you do not want to be publicly NUCLEAR REGULATORY processing, fabrication of uranium fuel disclosed. COMMISSION or fuel assemblies, uranium enrichment, The NRC requests that any party [NRC–2009–0262] enriched uranium hexafluoride soliciting or aggregating comments conversion, plutonium processing, and received from other persons for Draft Regulatory Guide: Re-Issuance fabrication of mixed-oxide fuel or fuel submission to the NRC inform those and Availability assemblies. DG–3037 provides guidance persons that the NRC will not edit their on how to meet the requirements of 10 comments to remove any identifying or AGENCY: Nuclear Regulatory CFR 70.72, ‘‘Facility changes and contact information, and therefore, they Commission. change process.’’ with emphasis on the should not include any information in ACTION: Notice of Re-Issuance and screening that is necessary to separate their comments that they do not want Availability of Draft Regulatory Guide, changes that do and do not require prior publicly disclosed. You may submit DG–3037. NRC approval. comments by any one of the following Fuel cycle facility licensees are methods: FOR FURTHER INFORMATION CONTACT: required by 10 CFR 70.72(a) to establish • Federal Rulemaking Web Site: Go to Kevin Morrissey, U.S. Nuclear a configuration management system to http://www.regulations.gov and search Regulatory Commission, Washington, evaluate, implement, and track each for documents filed under Docket ID DC 20555–0001, telephone: 301–492– change to the site, structures processes, NRC–2009–0262. Address questions 3130, e-mail: [email protected], systems, equipment, components, about NRC dockets to Carol Gallagher, or, R. A. Jervey, telephone: 301–251– computer programs, and activities of telephone: 301–492–3668; e-mail: 7404, e-mail: [email protected]. personnel. Such changes may be made [email protected]. SUPPLEMENTARY INFORMATION: by the licensee without prior approval • Mail comments to: Cindy Bladey, I. Introduction of the NRC, provided that the changes Chief, Rules, Announcements, and meet the criteria of 10 CFR 70.72(c). Directives Branch (RADB), Office of The U.S. Nuclear Regulatory In a separate action, the NRC is Administration, Mail Stop: TWB–05– Commission (NRC) is issuing for public developing guidance regarding a process B01M, U.S. Nuclear Regulatory comment a draft guide in the agency’s for submitting requests to allow changes Commission, Washington, DC 20555– ‘‘Regulatory Guide’’ series. This series during construction for power reactors 0001. was developed to describe and make under 10 CFR Part 52, ‘‘Licenses, • Fax comments to: RADB at 301– available to the public information and Certifications, and Approvals for 492–3446. methods that are acceptable to the NRC Nuclear Power Plants.’’ The changes You can access publicly available staff for implementing specific parts of during construction guidance will be documents related to this notice using the NRC’s regulations, techniques that published in draft form for comment. the following methods: the staff uses in evaluating specific After the changes during construction • NRC’s Public Document Room problems or postulated accidents, and guidance is finalized, the NRC will (PDR): The public may examine and data that the staff needs in its review of consider whether similar guidance is have copied, for a fee, publicly available applications. appropriate for construction activities at documents at the NRC’s PDR, O1–F21, The draft regulatory guide (DG), those 10 CFR Part 40 and 10 CFR Part One White Flint North, 11555 Rockville entitled, ‘‘Guidance for Fuel Cycle 70 licensed facilities which are subject Pike, Rockville, Maryland 20852. Facility Change Processes,’’ is to integrated safety analysis (ISA) • NRC’s Agencywide Documents temporarily identified by its task requirements. Thus, DG–3037 may be Access and Management System number, DG–3037, which should be subject to further revision after the 10 (ADAMS): Publicly available documents mentioned in all related CFR Part 52 guidance is finalized, or created or received at the NRC are correspondence. DG–3037 will be a new separate guidance concerning changes available online in the NRC Library at regulatory guide. The guide was during construction for fuel cycle http://www.nrc.gov/reading-rm/ previously issued for public comment facilities may be developed, adams.html. From this page, the public on June 29, 2009 (74 FR 31073). Public can gain entry into ADAMS, which II. Further Information comments on the 2009 draft, and the provides text and image files of the NRC responses to those comments, may The NRC staff is soliciting comments NRC’s public documents. If you do not be found in the NRC’s Agencywide on DG–3037. Comments may be have access to ADAMS or if there are Document Access and Management accompanied by relevant information or problems in accessing the documents System (ADAMS) under Accession supporting data and should reference located in ADAMS, contact the NRC’s Number ML100890028. As a result of DG–3037 in the subject line. Comments PDR reference staff at 1–800–397–4209, considerations raised by stakeholders submitted in writing or in electronic 301–415–4737, or by e-mail to during the earlier public comment form will be made available to the [email protected]. The regulatory period, and ongoing NRC policy public in their entirety through the analysis is available electronically development, the 2009 draft DG–3037 NRC’s Agencywide Documents Access under ADAMS Accession Number has been revised, and the NRC is and Management System (ADAMS). ML110960217. providing a comment period for ADDRESSES: Please include Docket ID • Federal Rulemaking Web Site: members of the public to consider the NRC–2009–0262 in the subject line of Public comments and supporting re-issued draft DG–3037. your comments. Comments submitted in materials related to this notice can be

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found at http://www.regulations.gov by I. Introduction company of Uranium One and Rosatom, searching on Docket ID NRC–2009– The U.S. Nuclear Regulatory remains the licensee. 0262. Commission (NRC) is considering the The staff has prepared an EA in Comments would be most helpful if renewal of Source Materials License support of the proposed license received by August 12, 2011. Comments SUA–1341 for the continued uranium renewal. Staff considered the following received after that date will be production operations and the recovery environmental resource areas in its considered if it is practical to do so, but of uranium by in-situ recovery (ISR) at evaluation: Land use; transportation; the NRC is able to ensure consideration the Irigaray and Christensen Ranch socioeconomics; air quality; water only for comments received on or before facilities in Johnson and Campbell quality and use; geology and soils; this date. Although a time limit is given, Counties, Wyoming (Willow Creek ecology; noise; historical and cultural; comments and suggestions in Project). The NRC has prepared an scenic and visual; public and connection with items for inclusion in Environmental Assessment (EA) in occupational health and safety; and guides currently being developed or support of this proposed license waste management. The environmental improvements in all published guides renewal in accordance with the impacts on these resource areas were are encouraged at any time. requirements of 10 CFR part 51. Based determined to be small. The license Electronic copies of DG–3037 are on the EA, the NRC has concluded that renewal request does not require available through the NRC’s public Web a Finding of No Significant Impact altering the site footprint nor does it site under Draft Regulatory Guides in (FONSI) is appropriate. The NRC is also change the operating processes of the the ‘‘Regulatory Guides’’ collection of conducting a safety evaluation of the existing facility; therefore, there are no the NRC’s Electronic Reading Room at proposed license renewal, pursuant to anticipated significant impacts on land http://www.nrc.gov/reading-rm/doc- 10 CFR part 40. The results of the safety use, noise, historic and cultural, scenic collections/. Electronic copies are also evaluation will be documented in a and visual, or ecological resources. The available in ADAMS (http:// separate Safety Evaluation Report. If proposed action will not adversely www.nrc.gov/reading-rm/adams.html), approved, the NRC will issue the affect Federal or state-listed threatened under Accession No. ML110960051. renewed license following the or endangered species. Public and Regulatory guides are not publication of this notice. copyrighted, and Commission approval occupational exposures are below the is not required to reproduce them. II. EA Summary limit established in 10 CFR Part 20. Uranium One USA, Inc. maintains Dated at Rockville, Maryland, this 1st day The proposed licensing action is to acceptable waste management practices of July, 2011. renew Source Materials License SUA– and procedures. The staff concluded For the Nuclear Regulatory Commission. 1341 for a 10-year period to authorize that the proposed 10-year renewal of Edward O’Donnell, Uranium One USA, Inc. to continue ISR Source Materials License SUA–1341 Acting Chief, Regulatory Guide Development operations at the Irigaray and will not result in a significant impact to Branch, Division of Engineering, Office of Christiansen Ranch facilities in the environment. Nuclear Regulatory Research. Campbell and Johnson Counties, Wyoming. On May 30, 2008, COGEMA NRC staff consulted with other [FR Doc. 2011–17734 Filed 7–13–11; 8:45 am] agencies regarding the proposed action, BILLING CODE 7590–01–P Mining, Inc. (COGEMA) submitted an application to renew Source Materials including the Wyoming State Historic License SUA–1341. A Notice of License and Preservation Office, Wyoming NUCLEAR REGULATORY Renewal Request and an Opportunity Department of Environmental Quality, COMMISSION for Hearing was published in the Buffalo Field Office of the Bureau of Federal Register on February 9, 2009 Land Management, the Eastern [Docket No. 40–8502; NRC–2009–0036] (74 FR 6436). In response, the Oglala Shoshone Tribe, the Northern Arapaho Delegation of the Great Sioux Nation Tribe, the Northern Cheyenne Tribe, the Notice of Availability of Environmental Treaty Council (Delegation) and the Blackfeet Nation, Three Affiliated Tribes Assessment and Finding of No Powder River Basin Resource Council (Mandan, Hidatsa, and Arikara), the Ft. Significant Impact for License Renewal (Council) filed petitions to intervene Peck Assiniboine/Sioux, the Oglala for Uranium One USA Inc., Irigaray and and requests for hearing. For reasons Sioux Tribe, the Crow Nation, and the Christensen Ranch Uranium In-Situ stated in the Memorandum and Order Cheyenne River Sioux Tribe. The Recovery Projects (Willow Creek LBP–09–13, dated July 23, 2009, the consultations ensured that the Project), Wyoming Atomic Safety and Licensing Board requirements of Section 7 of the concluded that neither the Delegation Endangered Species Act and Section AGENCY: Nuclear Regulatory 106 of the National Historic Commission. nor the Council demonstrated standing as required by 10 CFR 2.309(a). Preservation Act were met and provided ACTION: Notice of availability. Therefore, the petitions were denied. the designated state liaison agency the During the NRC’s review of the opportunity to comment on the FOR FURTHER INFORMATION CONTACT: Ron license renewal request, the Irigaray and proposed action. C. Linton, Project Manager, Uranium Christensen Ranch ISR Project III. Finding of No Significant Impact Recovery Licensing Branch, Division of underwent a change in control from Waste Management and Environmental COGEMA Mining, Inc. to Uranium One, On the basis of the EA, the NRC has Protection, Office of Federal and State Inc. (Uranium One). Subsequently, the concluded that the proposed license Materials and Environmental Irigaray and Christensen Ranch ISR renewal will not significantly affect the Management Programs, U.S. Nuclear Project underwent a second change in quality of the human environment. Regulatory Commission, Washington, control and ownership from Uranium Therefore, preparation of an DC 20555. Telephone: 301–415–7777; One to Rosatom, through JSC environmental impact statement is not Fax number: 301–415–5369; E-mail: Atomredmetzoloto (ARMZ). While the warranted for the proposed action and [email protected]. parent company changed to Rosatom, a finding of no significant impact is SUPPLEMENTARY INFORMATION: Uranium One USA, Inc., a daughter appropriate.

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IV. Further Information the NRC Library at http://www.nrc.gov/ and image files of NRC’s public Documents related to this action, reading-rm/adams.html. From this site, documents. The ADAMS accession including the license renewal you can access the NRC’s Agencywide numbers for the documents related to application and supporting Document Access and Management this notice are provided in the following documentation, are available online in System (ADAMS), which provides text table:

Document ADAMS accession No.

License Renewal Application ...... ML081850689 NRC letter to COGEMA—Request for Additional Information (RAI) ...... ML090750369 COGEMA Letter to NRC—Response to RAI ...... ML092110694 NRC Letter to Uranium One—RAI ...... ML100610326 Uranium One Letter to NRC—Response to RAI ...... ML103081071 NRC Consultation Letters ...... ML090400214 (package) NRC Letter to Wyoming State Historic Preservation Office ...... ML090400252 NRC Letter to U.S. Fish and Wildlife Service ...... ML090400244 NRC Letter to Wyoming Department of Environmental Quality (WDEQ) ...... ML090400231 NRC Letter to Blackfeet Nation ...... ML090400292 NRC Letter to Cheyenne River Sioux Tribe ...... ML090400261 NRC Letter to Crow Nation ...... ML090400267 NRC Letter to Ft. Peck Sioux ...... ML090400279 NRC Letter to Northern Arapaho Tribe ...... ML090400301 NRC Letter to Northern Cheyenne Tribe ...... ML090400295 NRC Letter to Oglala Sioux Tribe ...... ML090400273 NRC Letter to Eastern Shoshone Tribe ...... ML090400308 NRC Letter to Three Affiliated Tribes ...... ML090400287 NRC Draft EA transmittal letter to Bureau of Land Management (BLM) Buffalo Field Office and WDEQ ...... ML100210638 BLM response to EA review request ...... ML102360242 Final Environmental Assessment ...... ML103270681

If you do not have access to ADAMS PLACE: Commissioners’ Conference at: http://www.nrc.gov/about-nrc/policy- or if there are problems in accessing the Room, 11555 Rockville Pike, Rockville, making/schedule.html. documents located in ADAMS, contact Maryland. * * * * * the NRC’s Public Document Room (PDR) STATUS: Public and Closed. The NRC provides reasonable Reference staff at 1–800–397–4209, 301– ADDITIONAL ITEMS TO BE CONSIDERED: accommodation to individuals with 415–4737 or by e-mail to [email protected]. Week of July 11, 2011 disabilities where appropriate. If you need a reasonable accommodation to These documents may also be viewed Tuesday, July 12, 2011 participate in these public meetings, or electronically on the public computers 9:25 a.m. Affirmation Session (Public need this meeting notice or the located at the NRC’s PDR, O 1 F21, One Meeting) (Tentative). transcript or other information from the White Flint North, 11555 Rockville Pike AREVA Enrichment Services, LLC public meetings in another format (e.g. Rockville, MD 20852. Hard copies of the (Eagle Rock Enrichment Facility)— braille, large print), please notify Bill documents are available from the PDR Board Memorandum Certifying Dosch, Chief, Work Life and Benefits for a fee. Question to the Commission Branch, at 301–415–6200, TDD: 301– Dated at Rockville Maryland, 7th day of Regarding Decommissioning 415–2100, or by e-mail at July 2011. Financial Assurance (Feb. 18, 2011) [email protected]. Determinations For the Nuclear Regulatory Commission. (Tentative). on requests for reasonable Andrew Persinko, This meeting will be Webcast live at accommodation will be made on a case- the Web address—http://www.nrc.gov. Deputy Director, Environmental Protection by-case basis. and Performance Assessment Directorate, * * * * * * * * * * * The schedule for Commission Division of Waste Management and This notice is distributed Environmental Protection, Office of Federal meetings is subject to change on short electronically to subscribers. If you no and State Materials and Environmental notice. To verify the status of meetings, Management Programs. call (recording)—(301) 415–1292. longer wish to receive it, or would like [FR Doc. 2011–17731 Filed 7–13–11; 8:45 am] Contact person for more information: to be added to the distribution, please contact the Office of the Secretary, BILLING CODE 7590–01–P Rochelle Bavol, (301) 415–1651. Washington, DC 20555 (301–415–1969), * * * * * or send an e-mail to ADDITIONAL INFORMATION: By a vote of 5– [email protected]. NUCLEAR REGULATORY 0 on July 11, 2011, the Commission COMMISSION determined pursuant to U.S.C. 552b(e) Dated: July 11, 2011. and 9.107(a) of the Commission’s rules Rochelle C. Bavol, Sunshine Federal Register Notice that the above referenced Affirmation be Policy Coordinator, Office of the Secretary. held on July 12, 2011, with less than [FR Doc. 2011–17844 Filed 7–12–11; 11:15 am] AGENCY HOLDING THE MEETINGS: Nuclear one week notice to the public. Regulatory Commission [NRC–2011– BILLING CODE 7590–01–P * * * * * 0006]. The NRC Commission Meeting DATE: Week of July 11, 2011. Schedule can be found on the Internet

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NUCLEAR REGULATORY One White Flint North, 11555 Rockville give its consent in writing. The COMMISSION Pike, Rockville, Maryland 20852. Commission will approve an • NRC’s Agencywide Documents application for the indirect transfer of a [Docket Nos. 50–213 and 72–39; NRC–2011– Access and Management System license, if the Commission determines 0158] (ADAMS): Publicly available documents that the proposed merger will not affect Connecticut Yankee Atomic Power created or received at the NRC are the qualifications of the licensee to hold Company, Haddam Neck Plant; Notice available online in the NRC Library at the license, and that the transfer is of Consideration of Approval of http://www.nrc.gov/reading-rm/ otherwise consistent with applicable Application Regarding Proposed adams.html. From this page, the public provisions of law, regulations, and Merger and Opportunity for a Hearing can gain entry into ADAMS, which orders issued by the Commission provides text and image files of the pursuant thereto. AGENCY: Nuclear Regulatory NRC’s public documents. If you do not The filing of requests for hearing and Commission. have access to ADAMS or if there are petitions for leave to intervene, and ACTION: Notice of request for license problems in accessing the documents written comments with regard to the transfer, opportunity to comment, located in ADAMS, contact the NRC’s license transfer application, are opportunity to request a hearing. PDR reference staff at 1–800–397–4209, discussed below. 301–415–4737, or by e-mail to Within 20 days from the date of DATES: Comments must be filed by [email protected]. The application, publication of this notice, any person(s) August 15, 2011. A request for a hearing dated December 6, 2010, is available whose interest may be affected by the must be filed by August 3, 2011. electronically under ADAMS Accession Commission’s action on the application may request a hearing and intervention ADDRESSES: Please include Docket ID Number ML103490133. • via electronic submission through the NRC–2011–0158 in the subject line of Federal Rulemaking Web Site: Public comments and supporting NRC E-filing system. Requests for a your comments. Comments submitted in hearing and petitions for leave to writing or in electronic form will be materials related to this notice can be found at http://www.regulations.gov by intervene should be filed in accordance posted on the NRC Web site and on the with the Commission’s rules of practice Federal rulemaking Web site, http:// searching on Docket ID NRC–2011– 0158. set forth in subpart C ‘‘Rules of General www.regulations.gov. Because your Applicability: Hearing Requests, comments will not be edited to remove FOR FURTHER INFORMATION CONTACT: Petitions to Intervene, Availability of any identifying or contact information, Kristina L. Banovac, Project Manager, Documents, Selection of Specific the NRC cautions you against including Licensing Branch, Division of Spent Hearing Procedures, Presiding Officer any information in your submission that Fuel Storage and Transportation, Office Powers, and General Hearing you do not want to be publicly of Nuclear Material Safety and Management for NRC Adjudicatory disclosed. Safeguards, U.S. Nuclear Regulatory Hearings,’’ of 10 CFR part 2. In The NRC requests that any party Commission, Washington, DC 20555. particular, such requests and petitions soliciting or aggregating comments Telephone: 301–492–3571; fax number: must comply with the requirements set received from other persons for 301–492–3348; e-mail: forth in 10 CFR 2.309. Untimely submission to the NRC inform those [email protected]. requests and petitions may be denied, as persons that the NRC will not edit their The U.S. Nuclear Regulatory provided in 10 CFR 2.309(c)(1), unless comments to remove any identifying or Commission (the Commission) is good cause for failure to file on time is contact information, and therefore, they considering the issuance of an order established. In addition, an untimely should not include any information in under 10 CFR 50.80 approving the request or petition should address the their comments that they do not want indirect transfer of the Facility factors that the Commission will also publicly disclosed. You may submit Operating License No. DPR–61 for the consider, in reviewing untimely comments by any one of the following Haddam Neck Plant, currently held by requests or petitions, set forth in 10 CFR methods: Connecticut Yankee Atomic Power 2.309(c)(1)(i)–(viii). NRC regulations are • Federal Rulemaking Web Site: Go to Company (CYAPCO), as owner and accessible electronically from the NRC http://www.regulations.gov and search licensed operator of the Haddam Neck Library on the NRC Web site at http:// for documents filed under Docket ID Plant. www.nrc.gov/reading-rm/doc- NRC–2011–0158. Address questions According to an application for collections/cfr/. about NRC dockets to Carol Gallagher, consent filed by CYAPCO, in All documents filed in NRC telephone: 301–492–3668; e-mail: connection with a pending merger of adjudicatory proceedings, including a [email protected]. Northeast Utilities and NSTAR (each request for hearing, a petition for leave • Mail comments to: Cindy Bladey, current indirect minority co-owners of to intervene, any motion or other Chief, Rules, Announcements, and CYAPCO), Northeast Utilities, the document filed in the proceeding prior Directives Branch (RADB), Office of surviving company, will have an to the submission of a request for Administration, Mail Stop: TWB–05– indirect ownership of 63 percent of hearing or petition to intervene, and B01M, U.S. Nuclear Regulatory CYAPCO after the merger. CYAPCO will documents filed by interested Commission, Washington, DC 20555– continue to operate the facility and hold governmental entities participating 0001. the license. under 10 CFR 2.315(c), must be filed in • Fax comments to: RADB at 301– No physical changes to the Haddam accordance with the NRC E-Filing rule 492–3446. Neck Plant facility or operational (72 FR 49139, August 28, 2007). The E- You can access publicly available changes are being proposed in the Filing process requires participants to documents related to this notice using application. submit and serve all adjudicatory the following methods: Pursuant to 10 CFR 50.80, no license, documents over the Internet, or in some • NRC’s Public Document Room or any right thereunder, shall be cases to mail copies on electronic (PDR): The public may examine and transferred, directly or indirectly, storage media. Participants may not have copied, for a fee, publicly available through transfer of control of the submit paper copies of their filings documents at the NRC’s PDR, O1–F21, license, unless the Commission shall unless they seek an exemption in

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accordance with the procedures complete at the time the documents are officer, having granted an exemption described below. submitted through the NRC’s E-Filing request from using E-Filing, may require To comply with the procedural system. To be timely, an electronic a participant or party to use E-Filing if requirements of E-Filing, at least ten filing must be submitted to the E-Filing the presiding officer subsequently (10) days prior to the filing deadline, the system no later than 11:59 p.m. Eastern determines that the reason for granting participant should contact the Office of Time on the due date. Upon receipt of the exemption from use of E-Filing no the Secretary by e-mail at a transmission, the E-Filing system longer exists. [email protected], or by telephone time-stamps the document and sends Documents submitted in adjudicatory at 301–415–1677, to request (1) A digital the submitter an e-mail notice proceedings will appear in NRC’s ID certificate, which allows the confirming receipt of the document. The electronic hearing docket which is participant (or its counsel or E-Filing system also distributes an e- available to the public at http:// representative) to digitally sign mail notice that provides access to the ehd1.nrc.gov/EHD/, unless excluded documents and access the E-Submittal document to the NRC Office of the pursuant to an order of the Commission, server for any proceeding in which it is General Counsel and any others who or the presiding officer. Participants are participating; and (2) advise the have advised the Office of the Secretary requested not to include personal Secretary that the participant will be that they wish to participate in the privacy information, such as social submitting a request or petition for proceeding, so that the filer need not security numbers, home addresses, or hearing (even in instances in which the serve the documents on those home phone numbers in their filings, participant, or its counsel or participants separately. Therefore, unless an NRC regulation or other law representative, already holds an NRC- applicants and other participants (or requires submission of such issued digital ID certificate). Based upon their counsel or representative) must information. With respect to this information, the Secretary will apply for and receive a digital ID copyrighted works, except for limited establish an electronic docket for the certificate before a hearing request/ excerpts that serve the purpose of the hearing in this proceeding if the petition to intervene is filed so that they adjudicatory filings and would Secretary has not already established an can obtain access to the document via constitute a Fair Use application, electronic docket. the E-Filing system. participants are requested not to include Information about applying for a A person filing electronically using copyrighted materials in their digital ID certificate is available on the agency’s adjudicatory E-Filing submission. NRC’s public Web site at http:// system may seek assistance by Petitions for leave to intervene must www.nrc.gov/site-help/e-submittals/ contacting the NRC Meta System Help be filed no later than 20 days from the apply-certificates.html. System Desk through the ‘‘Contact Us’’ link date of publication of this notice. Non- requirements for accessing the E- located on the NRC Web site at http:// timely filings will not be entertained Submittal server are detailed in NRC’s www.nrc.gov/site-help/e- absent a determination by the presiding ‘‘Guidance for Electronic Submission,’’ submittals.html, by e-mail at officer that the petition or request which is available on the agency’s [email protected], or by a toll- should be granted or the contentions public Web site at http://www.nrc.gov/ free call at 866–672–7640. The NRC should be admitted, based on a site-help/e-submittals.html. Participants Meta System Help Desk is available balancing of the factors specified in 10 may attempt to use other software not between 8 a.m. and 8 p.m., Eastern CFR 2.309(c)(1)(i)–(viii). listed on the Web site, but should note Time, Monday through Friday, The Commission will issue a notice or that the NRC’s E-Filing system does not excluding government holidays. order granting or denying a hearing support unlisted software, and the NRC Participants who believe that they request or intervention petition, Meta System Help Desk will not be able have a good cause for not submitting designating the issues for any hearing to offer assistance in using unlisted documents electronically must file an that will be held and designating the software. exemption request, in accordance with Presiding Officer. A notice granting a If a participant is electronically 10 CFR 2.302(g), with their initial paper hearing will be published in the Federal submitting a document to the NRC in filing requesting authorization to Register and served on the parties to the accordance with the E-Filing rule, the continue to submit documents in paper hearing. participant must file the document format. Such filings must be submitted Within 30 days from the date of using the NRC’s online, Web-based by: (1) First class mail addressed to the publication of this notice, persons may submission form. In order to serve Office of the Secretary of the submit written comments regarding the documents through EIE, users will be Commission, U.S. Nuclear Regulatory license transfer application, as provided required to install a Web browser plug- Commission, Washington, DC 20555– for in 10 CFR 2.1305. The Commission in from the NRC Web site. Further 0001, Attention: Rulemaking and will consider and, if appropriate, information on the Web-based Adjudications Staff; or (2) courier, respond to these comments, but such submission form, including the express mail, or expedited delivery comments will not otherwise constitute installation of the Web browser plug-in, service to the Office of the Secretary, part of the decisional record. Comments is available on the NRC’s public Web Sixteenth Floor, One White Flint North, should be submitted to the Secretary, site at http://www.nrc.gov/site-help/e- 11555 Rockville Pike, Rockville, U.S. Nuclear Regulatory Commission, submittals.html. Maryland, 20852, Attention: Washington, DC 20555–0001, Attention: Once a participant has obtained a Rulemaking and Adjudications Staff. Rulemakings and Adjudications Staff, digital ID certificate and a docket has Participants filing a document in this and should cite the publication date and been created, the participant can then manner are responsible for serving the page number of this Federal Register submit a request for hearing or petition document on all other participants. notice. for leave to intervene. Submissions Filing is considered complete by first- For further details with respect to this should be in Portable Document Format class mail as of the time of deposit in indirect license transfer application, see (PDF) in accordance with NRC guidance the mail, or by courier, express mail, or the application dated December 6, 2010, available on the NRC public Web site at expedited delivery service upon available for public inspection at the http://www.nrc.gov/site-help/e- depositing the document with the Commission’s Public Document Room submittals.html. A filing is considered provider of the service. A presiding (PDR), located at One White Flint North,

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Public File Area O1–F21, 11555 their comments that they do not want indirect transfer of the Facility Rockville Pike (first floor), Rockville, publicly disclosed. You may submit Operating License No. DPR–3 for the Maryland. Publicly available documents comments by any one of the following Yankee Nuclear Power Station (Yankee- created or received at the NRC are methods: Rowe), currently held by Yankee accessible electronically through • Federal Rulemaking Web Site: Go to Atomic Electric Company (YAEC), as ADAMS in the NRC Library at http:// http://www.regulations.gov and search owner and licensed operator of Yankee- www.nrc.gov/reading-rm/adams.html. for documents filed under Docket ID Rowe. Persons who do not have access to NRC–2011–0159. Address questions According to an application for ADAMS or who encounter problems in about NRC dockets to Carol Gallagher, consent filed by YAEC, in connection accessing the documents located in telephone: 301–492–3668; e-mail: with a pending merger of Northeast ADAMS should contact the NRC PDR [email protected]. Utilities and NSTAR (each current Reference staff by telephone at 1–800– • Mail comments to: Cindy Bladey, indirect minority co-owners of YAEC), 397–4209, or 301–415–4737 or by e-mail Chief, Rules, Announcements, and Northeast Utilities, the surviving to [email protected]. Directives Branch (RADB), Office of company, will have an indirect ownership of 52.5 percent of YAEC after Dated at Rockville, Maryland this 6th day Administration, Mail Stop: TWB–05– of July 2011. B01M, U.S. Nuclear Regulatory the merger. YAEC will continue to operate the facility and hold the license. For the Nuclear Regulatory Commission. Commission, Washington, DC 20555– 0001. No physical changes to the Yankee- Kristina L. Banovac, • Fax comments to: RADB at 301– Rowe facility or operational changes are Project Manager, Licensing Branch, Division 492–3446. being proposed in the application. of Spent Fuel Storage and Transportation, You can access publicly available Pursuant to 10 CFR 50.80, no license, Office of Nuclear Material Safety and or any right thereunder, shall be Safeguards. documents related to this notice using the following methods: transferred, directly or indirectly, [FR Doc. 2011–17732 Filed 7–13–11; 8:45 am] • NRC’s Public Document Room through transfer of control of the BILLING CODE 7590–01–P (PDR): The public may examine and license, unless the Commission shall have copied, for a fee, publicly available give its consent in writing. The documents at the NRC’s PDR, O1–F21, Commission will approve an NUCLEAR REGULATORY application for the indirect transfer of a COMMISSION One White Flint North, 11555 Rockville Pike, Rockville, Maryland 20852. license, if the Commission determines [Docket Nos. 50–029 AND 72–31; NRC– NRC’s Agencywide Documents Access that the proposed merger will not affect 2011–0159] and Management System (ADAMS): the qualifications of the licensee to hold Publicly available documents created or the license, and that the transfer is Yankee Atomic Electric Company, received at the NRC are available online otherwise consistent with applicable Yankee Nuclear Power Station in the NRC Library at http:// provisions of law, regulations, and (Yankee-Rowe); Notice of www.nrc.gov/reading-rm/adams.html. orders issued by the Commission Consideration of Approval of From this page, the public can gain pursuant thereto. Application Regarding Proposed The filing of requests for hearing and entry into ADAMS, which provides text Merger and Opportunity for a Hearing petitions for leave to intervene, and and image files of the NRC’s public written comments with regard to the documents. If you do not have access to AGENCY: Nuclear Regulatory license transfer application, are ADAMS or if there are problems in Commission. discussed below. ACTION: Notice of request for license accessing the documents located in Within 20 days from the date of transfer, opportunity to comment, ADAMS, contact the NRC’s PDR publication of this notice, any person(s) opportunity to request a hearing. reference staff at 1–800–397–4209, 301– whose interest may be affected by the 415–4737, or by e-mail to Commission’s action on the application DATES: Comments must be filed by [email protected]. The application may request a hearing and intervention August 15, 2011. A request for a hearing dated December 6, 2010, is available via electronic submission through the must be filed by August 3, 2011. electronically under ADAMS Accession NRC E-filing system. Requests for a No. ML103490133. ADDRESSES: Please include Docket ID • hearing and petitions for leave to NRC–211–0159 in the subject line of Federal Rulemaking Web Site: intervene should be filed in accordance your comments. Comments submitted in Public comments and supporting with the Commission’s rules of practice writing or in electronic form will be materials related to this notice can be set forth in Subpart C ‘‘Rules of General posted on the NRC Web site and on the found at http://www.regulations.gov by Applicability: Hearing Requests, Federal rulemaking Web site, http:// searching on Docket ID NRC–2011– Petitions to Intervene, Availability of www.regulations.gov. Because your 0159. Documents, Selection of Specific comments will not be edited to remove FOR FURTHER INFORMATION CONTACT: Hearing Procedures, Presiding Officer any identifying or contact information, Kristina L. Banovac, Project Manager, Powers, and General Hearing the NRC cautions you against including Licensing Branch, Division of Spent Management for NRC Adjudicatory any information in your submission that Fuel Storage and Transportation, Office Hearings,’’ of 10 CFR part 2. In you do not want to be publicly of Nuclear Material Safety and particular, such requests and petitions disclosed. Safeguards, U.S. Nuclear Regulatory must comply with the requirements set The NRC requests that any party Commission, Washington, DC 20555. forth in 10 CFR 2.309. Untimely soliciting or aggregating comments Telephone: 301–492–3571; fax number: requests and petitions may be denied, as received from other persons for 301–492–3348; e-mail: provided in 10 CFR 2.309(c)(1), unless submission to the NRC inform those [email protected]. good cause for failure to file on time is persons that the NRC will not edit their The U.S. Nuclear Regulatory established. In addition, an untimely comments to remove any identifying or Commission (NRC or the Commission) request or petition should address the contact information, and therefore, they is considering the issuance of an order factors that the Commission will also should not include any information in under 10 CFR 50.80 approving the consider, in reviewing untimely

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requests or petitions, set forth in 10 CFR If a participant is electronically 10 CFR 2.302(g), with their initial paper 2.309(c)(1)(i)–(viii). NRC regulations are submitting a document to the NRC in filing requesting authorization to accessible electronically online from the accordance with the E-Filing rule, the continue to submit documents in paper NRC Library at http://www.nrc.gov/ participant must file the document format. Such filings must be submitted reading-rm/doc-collections/cfr/. using the NRC’s online, Web-based by: (1) First-class mail addressed to the All documents filed in NRC submission form. In order to serve Office of the Secretary of the adjudicatory proceedings, including a documents through EIE, users will be Commission, U.S. Nuclear Regulatory request for hearing, a petition for leave required to install a Web browser plug- Commission, Washington, DC 20555– to intervene, any motion or other in from the NRC Web site. Further 0001, Attention: Rulemaking and document filed in the proceeding prior information on the Web-based Adjudications Staff; or (2) courier, to the submission of a request for submission form, including the express mail, or expedited delivery hearing or petition to intervene, and installation of the Web browser plug-in, service to the Office of the Secretary, documents filed by interested is available on the NRC’s public Web Sixteenth Floor, One White Flint North, governmental entities participating site at http://www.nrc.gov/site-help/e- 11555 Rockville Pike, Rockville, under 10 CFR 2.315(c), must be filed in submittals.html. Maryland 20852, Attention: Rulemaking accordance with the NRC E-Filing rule Once a participant has obtained a and Adjudications Staff. Participants (72 FR 49139, August 28, 2007). The E- digital ID certificate and a docket has filing a document in this manner are Filing process requires participants to been created, the participant can then responsible for serving the document on submit and serve all adjudicatory submit a request for hearing or petition all other participants. Filing is documents over the internet, or in some for leave to intervene. Submissions considered complete by first-class mail cases to mail copies on electronic should be in Portable Document Format as of the time of deposit in the mail, or storage media. Participants may not (PDF) in accordance with NRC guidance by courier, express mail, or expedited submit paper copies of their filings available on the NRC public Web site at delivery service upon depositing the unless they seek an exemption in http://www.nrc.gov/site-help/e- document with the provider of the accordance with the procedures submittals.html. A filing is considered service. A presiding officer, having described below. complete at the time the documents are granted an exemption request from submitted through the NRC’s E-Filing To comply with the procedural using E-Filing, may require a participant system. To be timely, an electronic requirements of E-Filing, at least ten or party to use E-Filing if the presiding filing must be submitted to the E-Filing (10) days prior to the filing deadline, the officer subsequently determines that the system no later than 11:59 p.m. Eastern participant should contact the Office of reason for granting the exemption from Time on the due date. Upon receipt of the Secretary by e-mail at use of E-Filing no longer exists. a transmission, the E-Filing system Documents submitted in adjudicatory [email protected], or by telephone time-stamps the document and sends proceedings will appear in NRC’s at (301) 415–1677, to request (1) A the submitter an e-mail notice electronic hearing docket which is digital ID certificate, which allows the confirming receipt of the document. The available to the public at http:// participant (or its counsel or E-Filing system also distributes an e- ehd1.nrc.gov/EHD/, unless excluded representative) to digitally sign mail notice that provides access to the pursuant to an order of the Commission, documents and access the E-Submittal document to the NRC Office of the or the presiding officer. Participants are server for any proceeding in which it is General Counsel and any others who requested not to include personal participating; and (2) advise the have advised the Office of the Secretary privacy information, such as social Secretary that the participant will be that they wish to participate in the security numbers, home addresses, or submitting a request or petition for proceeding, so that the filer need not home phone numbers in their filings, hearing (even in instances in which the serve the documents on those unless an NRC regulation or other law participant, or its counsel or participants separately. Therefore, requires submission of such representative, already holds an NRC- applicants and other participants (or information. With respect to issued digital ID certificate). Based upon their counsel or representative) must copyrighted works, except for limited this information, the Secretary will apply for and receive a digital ID excerpts that serve the purpose of the establish an electronic docket for the certificate before a hearing request/ adjudicatory filings and would hearing in this proceeding if the petition to intervene is filed so that they constitute a Fair Use application, Secretary has not already established an can obtain access to the document via participants are requested not to include electronic docket. the E-Filing system. copyrighted materials in their Information about applying for a A person filing electronically using submission. digital ID certificate is available on the agency’s adjudicatory E-Filing Petitions for leave to intervene must NRC’s public Web site at http:// system may seek assistance by be filed no later than 20 days from the www.nrc.gov/site-help/e-submittals/ contacting the NRC Meta System Help date of publication of this notice. Non- apply-certificates.html. System Desk through the ‘‘Contact Us’’ link timely filings will not be entertained requirements for accessing the E- located on the NRC Web site at http:// absent a determination by the presiding Submittal server are detailed in NRC’s www.nrc.gov/site-help/e- officer that the petition or request ‘‘Guidance for Electronic Submission,’’ submittals.html, by e-mail at should be granted or the contentions which is available on the agency’s [email protected], or by a toll- should be admitted, based on a public Web site at http://www.nrc.gov/ free call at 866–672–7640. The NRC balancing of the factors specified in site-help/e-submittals.html. Participants Meta System Help Desk is available 10 CFR 2.309(c)(1)(i)–(viii). may attempt to use other software not between 8 a.m. and 8 p.m., Eastern The Commission will issue a notice or listed on the Web site, but should note Time, Monday through Friday, order granting or denying a hearing that the NRC’s E-Filing system does not excluding government holidays. request or intervention petition, support unlisted software, and the NRC Participants who believe that they designating the issues for any hearing Meta System Help Desk will not be able have a good cause for not submitting that will be held and designating the to offer assistance in using unlisted documents electronically must file an Presiding Officer. A notice granting a software. exemption request, in accordance with hearing will be published in the Federal

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Register and served on the parties to the stock is registered with the Commission III below, which Items have been hearing. pursuant to Section 12(g) of the prepared by the Exchange. The Within 30 days from the date of Securities Exchange Act of 1934. Commission is publishing this notice to publication of this notice, persons may On July 22, 2010, the law judge issued solicit comments on the proposed rule submit written comments regarding the his decision finding that Comverse had change from interested persons. license transfer application, as provided violated Securities Exchange Act I. Self-Regulatory Organization’s for in 10 CFR 2.1305. The Commission Section 13(a) and Exchange Act Rules will consider and, if appropriate, Statement of the Terms of Substance of 13a–1 and 13a–13 by failing to file the Proposed Rule Change respond to these comments, but such quarterly and annual reports for any comments will not otherwise constitute period after October 31, 2005. The law The Exchange proposes to amend part of the decisional record. Comments judge revoked the registration of Rule 7034 to extend the waiver of fees should be submitted to the Secretary, Comverse’s common stock. Subsequent assessed for the installation of certain U.S. Nuclear Regulatory Commission, to the issuance of the law judge’s co-location services for an additional Washington, DC 20555–0001, Attention: decision, Comverse has filed certain month. The text of the proposed rule Rulemakings and Adjudications Staff, annual and quarterly reports. change is available at http:// and should cite the publication date and Comverse does not appeal the law nasdaqomxbx.cchwallstreet.com, at the page number of this Federal Register judge’s findings of violation but, rather, Exchange’s principal office, at the notice. the law judge’s determination to revoke Commission’s Public Reference Room, For further details with respect to this its registration. Exchange Act Section and at the Commission’s Web site at indirect license transfer application, see 12(j) authorizes sanctions, including http://www.sec.gov. the application dated December 6, 2010, revocation, for reporting violations II. Self-Regulatory Organization’s available for public inspection at the where it is ‘‘necessary or appropriate for Statement of the Purpose of, and Commission’s Public Document Room the protection of investors.’’ Issues Statutory Basis for, the Proposed Rule (PDR), located at One White Flint North, likely to be considered at oral argument Change Public File Area O1–F21, 11555 include the extent to which, under the Rockville Pike (first floor), Rockville, In its filing with the Commission, the circumstances, sanctions are warranted. Exchange included statements Maryland. Publicly available documents Commissioner Paredes, as duty created or received at the NRC are concerning the purpose of and basis for officer, determined that no earlier notice the proposed rule change and discussed accessible electronically through thereof was possible. ADAMS in the NRC Library at http:// any comments it received on the For further information, please proposed rule change. The text of these www.nrc.gov/reading-rm/adams.html. contact the Office of the Secretary at Persons who do not have access to statements may be examined at the (202) 551–5400. places specified in Item IV below. The ADAMS or who encounter problems in At times, changes in Commission accessing the documents located in Exchange has prepared summaries, set priorities require alterations in the forth in Sections A, B, and C below, of ADAMS should contact the NRC PDR scheduling of meeting items. Reference staff by telephone at 1–800– the most significant aspects of such 397–4209, or 301–415–4737 or by e-mail July 12, 2011. statements. to [email protected]. Elizabeth M. Murphy, A. Self-Regulatory Organization’s Secretary. Dated at Rockville, Maryland this 6th day Statement of the Purpose of, and of July 2011. [FR Doc. 2011–17855 Filed 7–12–11; 4:15 pm] Statutory Basis for, the Proposed Rule For the Nuclear Regulatory Commission. BILLING CODE 8011–01–P Change Kristina L. Banovac, 1. Purpose Project Manager, Licensing Branch, Division SECURITIES AND EXCHANGE of Spent Fuel Storage and Transportation, The Exchange proposes to amend Office of Nuclear Material Safety and COMMISSION Rule 7034 to extend for a one-month Safeguards. [Release No. 34–64840; File No. SR–BX– period the initial waiver of fees assessed [FR Doc. 2011–17733 Filed 7–13–11; 8:45 am] 2011–043] for the installation of certain co-location BILLING CODE 7590–01–P services, in order to provide its existing Self-Regulatory Organizations; and potential new customers a full NASDAQ OMX BX, Inc.; Notice of Filing opportunity to avail themselves of the SECURITIES AND EXCHANGE and Immediate Effectiveness of waiver. The initial waiver of fees for the COMMISSION Proposed Rule Change To Amend Rule installation of certain co-location 7034 To Extend the Waiver of Certain services commenced June 1, 2011 and Sunshine Act Meeting Co-Location Installation Fees for an ended June 30, 2011.3 Since the initial Additional Month waiver, there has been significant Notice is hereby given, pursuant to demand for the select co-location the provisions of the Government in the July 8, 2011. services by existing customers, as well Sunshine Act, Public Law 94–409, that Pursuant to Section 19(b)(1) of the as new customers. However, the the Securities and Exchange Securities Exchange Act of 1934 Exchange has become aware that a 1 2 Commission will hold an Open Meeting (‘‘Act’’), and Rule 19b–4 thereunder, significant number of new and existing on July 14, 2011 at 10.m., in the notice is hereby given that on July 1, customers are unable to complete their Auditorium, Room L–002, to hear oral 2011, NASDAQ OMX BX, Inc. (‘‘BX’’ or requests by June 30, 2011 due to the argument in an appeal by Comverse ‘‘Exchange’’) filed with the Securities need for additional time to order new Technology, Inc. from an initial and Exchange Commission equipment to be housed in the cabinets, decision of an administrative law judge. (‘‘Commission’’) the proposed rule or, to complete the internal approval Comverse is a New York corporation change as described in Items I, II, and that provides a variety of services in the 3 See Securities Exchange Act Release No. 64631 telecommunications industry through 1 15 U.S.C. 78s(b)(1). (June 8, 2011), 76 FR 34785 (June 14, 2011) (SR– its subsidiaries. Comverse’s common 2 17 CFR 240.19b–4. BX–2011–032).

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process for the ongoing monthly fees persons using any facility or system 19(b)(3)(A)(ii) of the Act.9 At any time that will be incurred as part of the which the Exchange operates or within 60 days of the filing of the service. Therefore, the Exchange controls. The proposed fee waiver is proposed rule change, the Commission proposes to extend the waiver of fees reasonable because it provides an summarily may temporarily suspend until July 29, 2011 (the ‘‘extended opportunity for all new customers and such rule change if it appears to the period’’). Beginning August 1, 2011, the all existing customer [sic] that desire Commission that such action is above-referenced waived fees will revert additional cabinet space to obtain that necessary or appropriate in the public to the amount in effect prior to June 1, space without incurring fees. This interest, for the protection of investors, 2011. The Exchange proposes to extend decrease in fees provided a savings of or otherwise in furtherance of the the waiver of the following installation over $100,000 to customers that took purposes of the Act. If the Commission fees during the extended period: advantage of the fee waiver during the takes such action, the Commission shall 1. Rule 7034(a): Installation fees for month of June. In addition, the institute proceedings to determine new cabinets with power. Exchange believes that the fee waiver whether the proposed rule should be 2. Rule 7034(b): Installation fees for results in an equitable allocation of fees approved or disapproved. external telecommunication, inter- among the members of the Exchange. IV. Solicitation of Comments cabinet connectivity, connectivity to Specifically, the Exchange believes that The Nasdaq Stock Market LLC and by encouraging new and existing co- Interested persons are invited to market data connectivity related to an location customers to increase their submit written data, views, and order for a new cabinet. However, the presence in the Exchange’s data center, arguments concerning the foregoing, one-time telecommunication the Exchange will generate additional including whether the proposed rule connectivity expedite fee 4 will not be order execution and data consumption change is consistent with the Act. waived during the extended period. activity. If it materializes, such an Comments may be submitted by any of 3. Rule 7034(c): Installation fees for increase in activity would assist the the following methods: cabinet power related to an order for a Exchange in controlling the charges it Electronic Comments new cabinet. imposes on members generally for their • 4. Rule 7034(d): Installation fees for use of a variety of Exchange services. Use the Commission’s Internet cooling fans, perforated floor tiles and The waiver of fees is also equitably comment form (http://www.sec.gov/ fiber downspouts, which are necessary rules/sro.shtml); or allocated since all existing and potential • items to support a higher density co-location customers may avail Send an e-mail to rule- cabinet and fiber cross connects, themselves of the waiver during the [email protected]. Please include File relating to an order for a new cabinet period of availability. Notably, during Number SR–BX–2011–043 on the placed during the extended period. June 2011, the preponderance of subject line. Installation fees for other items that are customers availing themselves of the Paper Comments customized or options are not waived waiver were existing, rather than new • Send paper comments in triplicate during the extended period. customers, demonstrating the benefit of The following requirements must be to Elizabeth M. Murphy, Secretary, the program to a variety of members. Securities and Exchange Commission, met to receive the waiver of the Finally, extending the program for a installation fee: 100 F Street, NE., Washington, DC month will ensure that several 20549–1090. 1. The new cabinet order must be customers that have expressed an 5 All submissions should refer to File placed in the CoLo Console during the interest in expanding their data center Number SR–BX–2011–043. This file extended period; and presence but that have not yet been able number should be included on the 2. The new cabinet must be live to do so will have the opportunity to 6 subject line if e-mail is used. To help the within 90 days of the date of the order. benefit from the waiver. Commission process and review your 2. Statutory Basis B. Self-Regulatory Organization’s comments more efficiently, please use The Exchange believes that the Statement on Burden on Competition only one method. The Commission will proposed rule change is consistent with The Exchange does not believe that post all comments on the Commission’s 7 the provisions of Section 6 of the Act, the proposed rule change will result in Internet Web site (http://www.sec.gov/ in general, and with Section 6(b)(4) of any burden on competition that is not rules/sro.shtml). 8 the Act, in particular, in that it necessary or appropriate in furtherance Copies of the submission, all provides for the equitable allocation of of the purposes of the Act, as amended. subsequent amendments, all written reasonable dues, fees and other charges The Exchange believes that the statements with respect to the proposed among members and issuers and other extension of the waiver of fees for rule change that are filed with the certain co-location services is equitable Commission, and all written 4 The one-time telecommunication connectivity communications relating to the expedite fee is a fee for an optional request to because all customers may avail themselves of the waiver. proposed rule change between the complete the installation in a shorter time period Commission and any person, other than than the install timeframes. C. Self-Regulatory Organization’s 5 The ‘‘CoLo Console’’ is web-based ordering tool those that may be withheld from the that is utilized by NASDAQ to place co-location Statement on Comments on the public in accordance with the orders. Proposed Rule Change Received From provisions of 5 U.S.C. 552, will be 6 Exchange staff generally installs and makes Members, Participants, or Others available for Web site viewing and operational a new cabinet within 90 days of the date of the order (the ‘‘live date’’). The estimated Written comments were neither printing in the Commission’s Public live date is communicated to the customer. solicited nor received. Reference Room, 100 F Street, NE., However, there may be instances where the Washington, DC 20549, on official customer desires the live date to be later than the III. Date of Effectiveness of the business days between the hours of 10 estimated live date provided by Exchange staff. In Proposed Rule Change and Timing for a.m. and 3 p.m. Copies of the filing also such instances, the live date cannot extend beyond Commission Action 90 days of the date of the order. will be available for inspection and 7 15 U.S.C. 78f. The foregoing rule change has become 8 15 U.S.C. 78f(b)(4). effective pursuant to Section 9 15 U.S.C. 78s(b)(3)(a)(ii).

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copying at the principal office of the II. Self-Regulatory Organization’s connectivity expedite fee 4 will not be Exchange. All comments received will Statement of the Purpose of, and waived during the extended period. be posted without change; the Statutory Basis for, the Proposed Rule 3. Section X(c): Installation fees for Commission does not edit personal Change cabinet power related to an order for a identifying information from new cabinet. submissions. You should submit only In its filing with the Commission, the 4. Section X(d): Installation fees for information that you wish to make Exchange included statements cooling fans, perforated floor tiles and available publicly. concerning the purpose of and basis for fiber downspouts, which are necessary All submissions should refer to File the proposed rule change and discussed items to support a higher density Number SR–BX–2011–043 and should any comments it received on the cabinet and fiber cross connects, be submitted on or before August 4, proposed rule change. The text of these relating to an order for a new cabinet 2011. statements may be examined at the placed during the extended period. places specified in Item IV below. The Installation fees for other items that are For the Commission, by the Division of Exchange has prepared summaries, set Trading and Markets, pursuant to delegated customized or options are not waived authority.10 forth in sections A, B, and C below, of during the extended period. the most significant aspects of such Cathy H. Ahn, The following requirements must be statements. Deputy Secretary. met to receive the waiver of the A. Self-Regulatory Organization’s installation fee: [FR Doc. 2011–17679 Filed 7–13–11; 8:45 am] 1. The new cabinet order must be Statement of the Purpose of, and BILLING CODE 8011–01–P placed in the CoLo Console 5 during the Statutory Basis for, the Proposed Rule designated period; and Change 2. The new cabinet must be live SECURITIES AND EXCHANGE 1. Purpose within 90 days of the date of the order.6 COMMISSION 2. Statutory Basis [Release No. 34–64842; File No. SR–Phlx– The Exchange proposes to amend the 2011–97] Phlx Fee Schedule to extend for a one- The Exchange believes that the month period the initial waiver of fees proposed rule change is consistent with Self-Regulatory Organizations; Notice assessed for the installation of certain the provisions of Section 6 of the Act,7 of Filing and Immediate Effectiveness co-location services, in order to provide in general, and with Section 6(b)(4) of of Proposed Rule Change by NASDAQ its existing and potential new customers the Act,8 in particular, in that it OMX PHLX LLC To Extend the Waiver a full opportunity to avail themselves of provides for the equitable allocation of of Certain Co-Location Installation the waiver. The initial waiver of fees for reasonable dues, fees and other charges Fees for an Additional Month the installation of certain co-location among members and issuers and other services commenced June 1, 2011 and persons using any facility or system July 8, 2011. ended June 30, 2011.3 Since the initial which the Exchange operates or Pursuant to Section 19(b)(1) of the waiver, there has been significant controls. The proposed fee waiver is Securities Exchange Act of 1934 demand for the select co-location reasonable because it provides an (‘‘Act’’) 1, and Rule 19b–4 thereunder,2 services by existing customers, as well opportunity for all new customers and notice is hereby given that on July 1, as new customers. However, the all existing customer [sic] that desire 2011, NASDAQ OMX PHLX LLC Exchange has become aware that a additional cabinet space to obtain that (‘‘Phlx’’ or ‘‘Exchange’’) filed with the significant number of new and existing space without incurring fees. This Securities and Exchange Commission customers are unable to complete their decrease in fees provided a savings of (‘‘SEC’’ or ‘‘Commission’’) the proposed requests by June 30, 2011 due to the over $100,000 to customers that took rule change as described in Items I, II, need for additional time to order new advantage of the fee waiver during the and III, below, which Items have been equipment to be housed in the cabinets, month of June. In addition, the prepared by the Exchange. The or, to complete the internal approval Exchange believes that the fee waiver Commission is publishing this notice to process for the ongoing monthly fees results in an equitable allocation of fees solicit comments on the proposed rule that will be incurred as part of the among the members of the Exchange. change from interested persons. service. Therefore, the Exchange Specifically, the Exchange believes that I. Self-Regulatory Organization’s proposes to extend the waiver of fees by encouraging new and existing co- Statement of the Terms of Substance of until July 29, 2011 (the ‘‘extended location customers to increase their the Proposed Rule Change period’’). Beginning August 1, 2011, the presence in the Exchange’s data center, above-referenced waived fees will revert The Exchange proposes to amend the the Exchange will generate additional to the amount in effect prior to June 1, Fee Schedule to extend the waiver of 2011. The Exchange proposes to extend 4 fees assessed for the installation of The one-time telecommunication connectivity the waiver of the following installation expedite fee is a fee for an optional request to certain co-location services for an fees during the extended period: complete the installation in a shorter time period additional month. than the install timeframes. The text of the proposed rule change 1. Section X(a): Installation fees for 5 The ‘‘CoLo Console’’ is a Web-based ordering is available on the Exchange’s Web site new cabinets with power. tool that is utilized by Phlx to place co-location at http:// 2. Section X(b): Installation fees for orders. external telecommunication, inter- 6 Exchange staff generally installs and makes nasdaqomxphlx.cchwallstreet.com/, at operational a new cabinet within 90 days of the the principal office of the Exchange, at cabinet connectivity, connectivity to date of the order (the ‘‘live date’’). The estimated the Commission’s Public Reference The Nasdaq Stock Market LLC and live date is communicated to the customer. Room, and at the Commission’s Web market data connectivity related to an However, there may be instances where the order for a new cabinet. However, the customer desires the live date to be later than the site at http://www.sec.gov. estimated live date provided by Exchange staff. In one-time telecommunication such instances, the live date cannot extend beyond 10 17 CFR 200.30–3(a)(12). 90 days of the date of the order. 1 15 U.S.C. 78s(b)(1). 3 See Securities Exchange Act Release No. 64629 7 15 U.S.C. 78f. 2 17 CFR 240.19b–4. (June 8, 2011) (SR–Phlx–2011–77). 8 15 U.S.C. 78f(b)(4).

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order execution and data consumption Electronic Comments SECURITIES AND EXCHANGE activity. If it materializes, such an • COMMISSION increase in activity would assist the Use the Commission’s Internet Exchange in controlling the charges it comment form (http://www.sec.gov/ rules/sro.shtml); or [Release No. 34–64841; File No. SR–FINRA– imposes on members generally for their 2011–032] use of a variety of Exchange services. • Send an e-mail to rule- The waiver of fees is also equitably [email protected]. Please include File Self-Regulatory Organizations; allocated since all existing and potential Number SR–Phlx–2011–97 on the Financial Industry Regulatory co-location customers may avail subject line. Authority, Inc.; Notice of Filing and themselves of the waiver during the Immediate Effectiveness of Proposed Paper Comments period of availability. Notably, during Rule Change To Implement Revolving June 2011, the preponderance of • Send paper comments in triplicate Door Restrictions on Former Officers customers availing themselves of the to Elizabeth M. Murphy, Secretary, of FINRA waiver were existing, rather than new Securities and Exchange Commission, customers, demonstrating the benefit of July 8, 2011. 100 F Street, NE., Washington, DC the program to a variety of members. 20549–1090. Pursuant to Section 19(b)(1) of the Finally, extending the program for a Securities Exchange Act of 1934 month will ensure that several All submissions should refer to File (‘‘Act’’) 1 and Rule 19b–4 thereunder,2 customers that have expressed an Number SR–Phlx–2011–97. This file notice is hereby given that on July 1, interest in expanding their data center number should be included on the 2011, Financial Industry Regulatory presence but that have not yet been able subject line if e-mail is used. To help the Authority, Inc. (‘‘FINRA’’) filed with the to do so will have the opportunity to Commission process and review your Securities and Exchange Commission benefit from the waiver. comments more efficiently, please use (‘‘SEC’’ or ‘‘Commission’’) the proposed B. Self-Regulatory Organization’s only one method. The Commission will rule change as described in Items I, II, Statement on Burden on Competition post all comments on the Commission’s and III below, which Items have been Internet Web site (http://www.sec.gov/ prepared by FINRA. FINRA has The Exchange does not believe that rules/sro.shtml). the proposed rule change will impose designated the proposed rule change as any burden on competition not Copies of the submission, all concerned solely with the necessary or appropriate in furtherance subsequent amendments, all written administration of the self-regulatory of the purposes of the Act. statements with respect to the proposed organization under Section rule change that are filed with the 19(b)(3)(A)(iii) of the Act 3 and Rule C. Self-Regulatory Organization’s Commission, and all written 19b–4(f)(3) thereunder,4 which renders Statement on Comments on the communications relating to the the proposal effective upon receipt of Proposed Rule Change Received From proposed rule change between the this filing by the Commission. The Members, Participants, or Others Commission and any person, other than Commission is publishing this notice to Written comments were neither those that may be withheld from the solicit comments on the proposed rule solicited nor received. public in accordance with the change from interested persons. provisions of 5 U.S.C. 552, will be III. Date of Effectiveness of the I. Self-Regulatory Organization’s available for Web site viewing and Proposed Rule Change and Timing for Statement of the Terms of Substance of printing in the Commission’s Public Commission Action the Proposed Rule Change Reference Room, 100 F Street, NE., The foregoing rule change has become Washington, DC 20549, on official FINRA is proposing to amend (i) effective pursuant to Section business days between the hours of 10 FINRA Rule 9141 (Appearance and 19(b)(3)(A)(ii) of the Act.9 At any time a.m. and 3 p.m. Copies of the filing also Practice; Notice of Appearance) to within 60 days of the filing of the will be available for inspection and prohibit a former officer of FINRA, for proposed rule change, the Commission copying at the principal office of the a period of one year after termination of summarily may temporarily suspend Exchange. All comments received will employment with FINRA, from making such rule change if it appears to the be posted without change; the an appearance before an adjudicator on Commission that such action is Commission does not edit personal behalf of any other person under the necessary or appropriate in the public identifying information from FINRA Rule 9000 Series; and (ii) FINRA interest, for the protection of investors, submissions. You should submit only or otherwise in furtherance of the Rule 9242 (Pre-hearing Submission) to information that you wish to make prohibit a former officer of FINRA, for purposes of the Act. If the Commission available publicly. takes such action, the Commission shall a period of one year after termination of institute proceedings to determine All submissions should refer to File employment with FINRA, from whether the proposed rule should be Number SR–Phlx–2011–97 and should providing expert testimony on behalf of approved or disapproved. be submitted on or before August 4, any other person under the FINRA Rule 2011. 9000 Series. IV. Solicitation of Comments For the Commission, by the Division of The text of the proposed rule change Interested persons are invited to Trading and Markets, pursuant to delegated is available on FINRA’s Web site at submit written data, views, and authority.10 http://www.finra.org, at the principal arguments concerning the foregoing, Cathy H. Ahn, office of FINRA and at the including whether the proposed rule Commission’s Public Reference Room. change is consistent with the Act. Deputy Secretary. [FR Doc. 2011–17683 Filed 7–13–11; 8:45 am] Comments may be submitted by any of 1 15 U.S.C. 78s(b)(1). the following methods: BILLING CODE 8011–01–P 2 17 CFR 240.19b–4. 3 15 U.S.C. 78s(b)(3)(A)(iii). 9 15 U.S.C. 78s(b)(3)(A)(ii). 10 17 CFR 200.30–3(a)(12). 4 17 CFR 240.19b–4(f)(3).

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II. Self-Regulatory Organization’s FINRA officer, for a period of one year through a motion to disqualify the Statement of the Purpose of, and after termination of employment with former FINRA officer, which is filed Statutory Basis for, the Proposed Rule FINRA, from making an appearance with the adjudicator.9 In sum, the Change before an adjudicator on behalf of any proposed rule change is designed to In its filing with the Commission, other person under the FINRA Rule create restrictions that are precisely FINRA included statements concerning 9000 Series. The proposed rule change defined and straightforward to enforce. the purpose of and basis for the accordingly restricts former FINRA Although FINRA’s proposed rule proposed rule change and discussed any officers who are attorneys from change will serve as one safeguard comments it received on the proposed appearing on behalf of clients before against unfairness in its proceedings, it rule change. The text of these statements Hearing Officers, Hearing Panels, the is not the only safeguard. Former FINRA may be examined at the places specified National Adjudicatory Council, and the employees, whether officers or not, who 6 in Item IV below. FINRA has prepared FINRA Board of Governors. While the are attorneys that seek to represent a summaries, set forth in sections A, B, most common impact of the proposed client in a FINRA proceeding must, as and C below, of the most significant rule change will be to prohibit a former noted earlier, be licensed to practice law aspects of such statements. FINRA officer from appearing on behalf before the highest court of any state.10 of a respondent, the prohibition also The vast majority of state jurisdictions A. Self-Regulatory Organization’s applies to a former FINRA officer have adopted rules of professional Statement of the Purpose of, and appearing on behalf of a witness who is conduct that are based on the American Statutory Basis for, the Proposed Rule not a respondent but is testifying before Bar Association’s Model Rules of Change a Hearing Panel, Hearing Officer, or Professional Conduct.11 Model Rule 1. Purpose other adjudicator. 1.9(a) addresses a lawyer’s conflict of Second, the Revolving Door interest regarding a former client and FINRA seeks to diligently uphold a Restrictions amend FINRA Rule 9242 to prohibits a lawyer who has represented high degree of fairness in disciplinary prohibit a former officer of FINRA, for a client in a matter from subsequently and similar proceedings that take place a period of one year after termination of representing any other person in that before FINRA hearing panels and other employment with FINRA, from matter or a substantially related matter FINRA adjudicators. To further this providing expert testimony on behalf of when that person’s interests are goal, FINRA is amending two a respondent under the FINRA Rule procedural rules that will prevent materially adverse to the interests of the 9000 Series. The proposed rule change former client.12 For example, in a former FINRA officers—for one year— makes clear, however, that nothing in from appearing on behalf of a client FINRA disciplinary case, this means the rule prohibits a former officer of that FINRA Department of Enforcement before a FINRA adjudicator or testifying FINRA from testifying as either a fact as an expert witness in a FINRA forum. attorneys who have litigated for FINRA witness or as an expert witness on and have ended their FINRA The FINRA Rule 9000 Series is behalf of FINRA. FINRA’s Code of Procedure (the employment may not subsequently The Revolving Door Restrictions are represent any respondent in appeals in ‘‘Code’’) and provides detailed designed to provide clear boundaries procedures for initiating and that case, any other continuing litigation that limit specific activities of former in that case, or a substantially related adjudicating various types of actions, FINRA officers in a manner that is matter in which the respondent’s including disciplinary, eligibility, consistent with restrictions currently interests are materially adverse to expedited, and cease and desist imposed on other regulators in the FINRA’s interests.13 By augmenting the proceedings. FINRA is imposing a securities industry.7 One aspect of the protections imposed by state bar ethical temporal forum appearance prohibition restrictions focuses on a former FINRA rules with the Revolving Door under the Code on FINRA officers that officer’s appearance before a FINRA Restrictions, FINRA believes that it will restricts former officers from acting in adjudicator because that event is further insulate its proceedings from the two different capacities in a FINRA recorded in a written notice that is appearance of any undue influence. forum (‘‘Revolving Door Restrictions’’). currently required under the Code.8 The proposed rule change maintains the FINRA has filed the proposed rule Moreover, once a matter is pending change for immediate effectiveness. The perception of fairness and safeguards before an adjudicator, both the against former FINRA officers implementation date will be July 2, prohibitions on appearing before an 2012. potentially exerting undue influence in adjudicator and testifying as an expert FINRA proceedings. Although FINRA is witness can be enforced quickly in the 2. Statutory Basis not aware of any instances of former context of a pending FINRA proceeding FINRA believes that the proposed rule officers exerting undue influence in either directly by the adjudicator or FINRA’s disciplinary and similar change is consistent with the provisions of Section 15A(b)(6) of the Act,14 which forums, FINRA seeks to prevent such an 6 FINRA Rule 9120(a) defines the term incident by implementing the Revolving ‘‘Adjudicator.’’ For purposes of the proposed rule 9 Door Restrictions under the Code. change, ‘‘adjudicator’’ includes the FINRA Board of FINRA Rule 9150 authorizes an adjudicator to First, the proposed rule change Governors, when it is calling a case for review, see exclude an attorney from acting as counsel in FINRA Rule 9351, a Subcommittee, Review FINRA disciplinary and similar proceedings. addresses a former officer appearing as 10 Subcommittee or Extended Proceeding Committee See FINRA Rule 9141(b). a lawyer in FINRA’s forum. FINRA Rule of the National Adjudicatory Council, see FINRA 11 Richard Acello, New York Makes Itself a 9141 governs, among other things, the Rule 9331 and FINRA Regulation By-Law Article V, ‘Model’ State: California Now the Only Holdout on appearance and practice of lawyers Sec. 5.13, a Hearing Officer, see FINRA Rule Adopting ABA Model Rules, 95 ABA J., Sept. 2009, before an adjudicator under the Code.5 9120(r), a Hearing Panel, see FINRA Rule 9120(s), at 22. a Hearing Panel in an eligibility proceeding or the 12 The ABA Model Rules of Professional Conduct The proposed rule change amends Statutory Disqualification Committee, see FINRA (2010), available at http://www.americanbar.org. FINRA Rule 9141 to prohibit a former Rule 9524(a)(1) and (10), and the Waiver 13 A conflict of interest may be waived by a Subcommittee, see FINRA Rule 9630. former client who gives informed consent. Model 5 See FINRA Rule 9141(b) (requiring attorneys 7 FINRA officers include Vice Presidents, Senior Rule 1.9(a) and comment 9 (2010). FINRA, as the that seek to represent a party in a FINRA Vice Presidents, and higher ranking FINRA former client with the option to waive, does not proceeding to be licensed to practice law before the executives. anticipate waiving any such conflicts. highest court of any state). 8 See FINRA Rule 9141(b). 14 15 U.S.C. 78o–3(b)(6).

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requires, among other things, that Paper Comments SECURITIES AND EXCHANGE FINRA rules must be designed to • COMMISSION prevent fraudulent and manipulative Send paper comments in triplicate to Elizabeth M. Murphy, Secretary, [Release No. 34–64844; File No. SR– acts and practices, to promote just and NYSEAmex–2011–34] equitable principles of trade, and, in Securities and Exchange Commission, general, to protect investors and the 100 F Street, NE., Washington, DC Self-Regulatory Organizations; NYSE public interest. FINRA believes that the 20549–1090. Amex LLC; Order Approving a proposed rule change will maintain the All submissions should refer to File Proposed Rule Change Amending perception of fairness in its disciplinary Number SR–FINRA–2011–032. This file NYSE Amex Equities Rule 70.40(3) To and similar proceedings and will number should be included on the Permit Member Organizations To safeguard against former FINRA officers subject line if e-mail is used. To help the Engage in Proprietary Trading From potentially exerting undue influence in Their Approved Booth Premises in FINRA proceedings. Commission process and review your comments more efficiently, please use Certain OTC Bulletin Board and OTC Markets Securities B. Self-Regulatory Organization’s only one method. The Commission will Statement on Burden on Competition post all comments on the Commission’s July 8, 2011. Internet Web site (http://www.sec.gov/ FINRA does not believe that the I. Introduction proposed rule change will result in any rules/sro.shtml). On May 11, 2011, NYSE Amex LLC burden on competition that is not Copies of the submission, all (‘‘NYSE Amex’’ or the ‘‘Exchange’’), necessary or appropriate in furtherance subsequent amendments, all written of the purposes of the Act. filed with the Securities and Exchange statements with respect to the proposed Commission (‘‘Commission’’), pursuant C. Self-Regulatory Organization’s rule change that are filed with the to Section 19(b)(1) of the Securities Statement on Comments on the Commission, and all written Exchange Act of 1934 (‘‘Act’’) 1 and Rule Proposed Rule Change Received From communications relating to the 19b–4 thereunder,2 a proposed rule Members, Participants, or Others proposed rule change between the change to amend NYSE Amex Equities Written comments were neither Commission and any person, other than Rule 70.40(3) to permit member solicited nor received. those that may be withheld from the organizations to engage in proprietary public in accordance with the trading from their approved booth III. Date of Effectiveness of the provisions of 5 U.S.C. 552, will be premises in certain OTC Bulletin Board Proposed Rule Change and Timing for available for Web site viewing and (‘‘OTCBB’’) and OTC Markets securities. Commission Action printing in the Commission’s Public The proposed rule change was The foregoing rule change has become Reference Room, 100 F Street, NE., published for comment in the Federal effective pursuant to Section 19(b)(3)(A) Washington, DC 20549, on official Register on May 25, 2011.3 The of the Act 15 and paragraph (f)(3) of Rule business days between the hours of 10 Commission received no comment 19b–4 thereunder.16 At any time within a.m. and 3 p.m. Copies of the filing also letters on the proposed rule change. 60 days of the filing of the proposed rule will be available for inspection and This order approves the proposed rule change, the Commission summarily may copying at the principal office of change. temporarily suspend such rule change if FINRA. All comments received will be II. Description it appears to the Commission that such posted without change; the Commission NYSE Amex proposes to amend NYSE action is necessary or appropriate in the does not edit personal identifying Amex Equities Rule 70.40(3) to permit public interest, for the protection of information from submissions. You investors, or otherwise in furtherance of member organizations to engage in should submit only information that proprietary trading from their approved the purposes of the Act. If the you wish to make available publicly. Commission takes such action, the booth premises in certain OTCBB and Commission shall institute proceedings All submissions should refer to File OTC Markets securities.4 to determine whether the proposed rule Number SR–FINRA–2011–032 and In June 2007, the New York Stock should be approved or disapproved. should be submitted on or before Exchange LLC adopted NYSE Rule August 4, 2011. 70.40, which permits a member IV. Solicitation of Comments organization to operate its booth For the Commission, by the Division of Interested persons are invited to premises on the NYSE Floor in a Trading and Markets, pursuant to delegated manner similar to its ‘‘upstairs’’ office, submit written data, views and authority.17 arguments concerning the foregoing, thereby allowing member organizations Cathy H. Ahn, including whether the proposed rule to access other markets and trade a change is consistent with the Act. Deputy Secretary. wider array of products from their booth Comments may be submitted by any of [FR Doc. 2011–17682 Filed 7–13–11; 8:45 am] premises and thus operate more 5 the following methods: BILLING CODE 8011–01–P efficiently and competitively. At the

Electronic Comments 1 15 U.S.C. 78s(b)(1). • Use the Commission’s Internet 2 17 CFR 240.19b–4. comment form (http://www.sec.gov/ 3 See Securities Exchange Act Release No. 64521 (May 19, 2011); 76 FR 30415 (‘‘Notice’’). rules/sro.shtml); or 4 The Exchange’s affiliate, New York Stock • Send an e-mail to rule- Exchange LLC (‘‘NYSE’’), has proposed to adopt the [email protected]. Please include File same rule. See SR–NYSE–2011–22. Number SR–FINRA–2011–032 on the 5 See Securities Exchange Act Release 55908 subject line. (June 14, 2007), 72 FR 34056 (June 20, 2007) (SR– NYSE–2007–51) (notice of filing and immediate effectiveness of proposed rule change permitting 15 15 U.S.C. 78s(b)(3)(A). member organizations to operate their booth 16 17 CFR 240.19b–4(f)(3). 17 17 CFR 200.30–3(a)(12). Continued

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time that NYSE Rule 70.40 was adopted, related to a security listed or traded on handled through the booth and the staff it included certain conditions and the Exchange or NYSE 8 if: responsible for such activities; such limitations on such trading, including (a) The OTC Security is issued by an issuer procedures must be reasonably designed that only trading on behalf of customers of a security that is listed or traded on the to ensure that the member organization would be permitted. In October 2008, Exchange or NYSE or that underlies an NYSE would be trading in compliance with the Exchange adopted NYSE Amex Amex option, or an affiliate of such issuer; the requirements of NYSE Amex Equities Rule 70.40, which is identical (b) The OTC Security is subject to a Equities Rule 70.40, including that it is to NYSE Rule 70.40.6 As such, NYSE corporate action that relates to the issuer of not effecting transactions from booth Rule Amex Equities 70.40(3) prohibits a security that is listed or traded on the premises in OTC Securities that are Exchange or NYSE or that underlies an NYSE related to securities listed or traded on member organizations approved to Amex option, or an affiliate of such issuer; operate booth premises pursuant to such (c) The OTC Security is issued by an issuer the Exchange or NYSE. A member Rule from effecting any transaction from of a security that is a component of a narrow- organization would be required to their approved booth premises for their based security index 9 that is linked to a obtain NYSER approval of such written own account, the account of an security that is listed or traded on the procedures before such trading associated person, or an account with Exchange or NYSE or that underlies an NYSE commences.12 A member organization respect to which they or an associated Amex option; or would be required to regularly review person thereof exercise investment (d) The OTC Security is issued by a foreign such procedures and compliance issuer or is a depositary receipt (or the therewith, and obtain approval from discretion on the Exchange. equivalent thereof) for such a security, and a After more than two years of NYSER of any subsequent changes to security issued by such foreign issuer or a 13 experience with NYSE Amex Equities depositary receipt (or the equivalent thereof) such procedures. Rule 70.40, member organizations have for such a security is listed or traded on the At a minimum, such written requested that certain types of Exchange or NYSE or underlies an NYSE procedures must require the member proprietary trading be permitted under Amex option. organization to exercise due diligence before commencing trading in an OTC the Rule, and the Exchange has Under the proposed rule, a corporate Security from the booth premises determined that it is appropriate to do action would be any action by an issuer so. Therefore, the Exchange proposes to pursuant to this Rule to ensure that such of an OTC Security or a security listed trading is in compliance with the revise NYSE Amex Equities Rule or traded on the Exchange or NYSE that 70.40(3) to permit member organizations requirements of this Rule and that the causes a relationship between the price member organization has procedures to to effect transactions in the common, of the OTC Security and the price of the preferred, and debt securities of an monitor its trading activity in order to security that is listed or traded on the remain in compliance. A member operating company that is quoted on the Exchange or NYSE or that underlies an OTC Bulletin Board or OTC Markets (an organization must have supervisory NYSE Amex option, such as the systems in place that produce records ‘‘OTC Security’’) from their approved announcement of a merger, acquisition, booth premises for their own account, sufficient to reconstruct, in a time- joint venture, spinoff, dissolution, sequenced manner, all orders with the account of an associated person, or bankruptcy filing or other similar type an account with respect to which they respect to which the member of event involving the issuers. organization is trading from the booth or an associated person thereof exercise The proposed proprietary transactions investment discretion, except that such premises under this Rule. The member in OTC Securities would remain subject organization must be able to member organizations could not effect to all of the other provisions of NYSE such transactions in an OTC Security demonstrate which OTC Security Amex Equities Rule 70.40. First, a transactions were effected from the that is related to a security listed or member organization would have to traded on the Exchange or NYSE.7 booth premises (as compared to off- obtain approval from NYSE Regulation, Floor trading, if applicable). If the Because trading would be limited to the Inc. (‘‘NYSER’’) to engage in proprietary common, preferred, and debt securities member organization could not OTC Securities trading from booth demonstrate which trading is from the of an operating company, a member 10 premises. Second, all such booth premises, the Exchange would organization could not trade in an transactions would be subject to the index-based or derivative security (e.g., presume that all such trading was regulatory requirements that apply to effected from the booth premises. a right or warrant) that is quoted on the ‘‘upstairs’’ trading, including OTCBB or OTC Markets. registration requirements and audit trail III. Discussion and Commission’s Under the proposed rule change, an requirements applicable to those Findings OTC Security would be considered markets and supervision requirements After careful review, the Commission under NYSE Amex Equities Rule 342.11 finds that the proposed rule change is premises as an upstairs office). Under NYSE Amex Finally, a member organization would Equities Rule 70.40, only Floor Brokers may consistent with the requirements of conduct activity from booth premises. be required to adopt and implement Section 6 of the Act 14 and the rules and 6 See Securities Exchange Act Release No. 58705 comprehensive written procedures regulations thereunder applicable to a (October 1, 2008), 73 FR 58995 (October 8, 2008) governing the conduct and supervision national securities exchange.15 In (SR–Amex–2008–63) (Order Granting Approval of of proprietary trading in OTC Securities Proposed Rule Change To Establish New Membership, Member Firm Conduct, and Equity 12 If a member organization had already obtained Trading Rules Following the Exchange’s 8 Securities listed on The NASDAQ Stock Market approval to operate booth premises under NYSE Acquisition by NYSE Euronext). Under NYSE Amex are traded on NYSE Amex pursuant to unlisted Amex Equities Rule 70.40, it would still be required Equities Rule 70.40, only Floor Brokers may trading privileges and thus would be considered a to update its written procedures to address conduct activity from booth premises. security traded on NYSE Amex under the proposed proprietary trading in OTC Securities and obtain 7 Since the merger of NYSE and NYSE Amex in rule change. See Rules 500–525—NYSE Amex NYSER approval under NYSE Amex Equities Rule 2008, the exchanges have conducted equity trading Equities. 70.40(7). from the same Trading Floor, and NYSE Amex has 9 For purposes of the proposed rule, the definition 13 NYSE Amex Equities Rule 70.40(6) and (7). conducted options trading in rooms adjacent the of narrow-based security index would be the same 14 15 U.S.C. 78f. Trading Floor. See Securities Exchange Act Release as the definition in Section 3(a)(55) of the Securities 15 In approving this proposal, the Commission has No. 58673 (September 29, 2008) (SR–Amex–2008– Exchange Act of 1934 (the ‘‘Act’’). considered the proposed rule’s impact on 62 and SR–NYSE–2008–60), 73 FR 57707 (October 10 NYSE Amex Equities Rule 70.40(1). efficiency, competition, and capital formation. See 3, 2008), and NYSE Rule 6A. 11 NYSE Amex Equities Rule 70.40(4) and (5). 15 U.S.C. 78c(f).

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particular, the Commission finds that supervisory system in place to produce rule change as one establishing or the proposed rule change is consistent records sufficient to reconstruct, in a changing a member due, fee, or other with Section 6(b)(5) of the Act,16 which time-sequenced manner, all orders with charge imposed by the Exchange under requires, among other things, that the respect to trading from booth premises Section 19(b)(3)(A)(ii) of the Act 3 and Exchange’s rules be designed to prevent and must be able to demonstrate which Rule 19b–4(f)(2) thereunder,4 which fraudulent and manipulative acts and OTC Security transactions were effected renders the proposed rule change practices, to promote just and equitable from the booth premises. Furthermore, effective upon filing with the principles of trade, to remove as noted above, to the extent that a Commission. The Commission is impediments to and perfect the member organization has already publishing this notice to solicit mechanism of a free and open market obtained approval to operate booth comments on the proposed rule change and a national market system, and, in premises under NYSE Amex Equities from interested persons. general, to protect investors and the Rule 70.40, it would still be required to I. Self-Regulatory Organization’s public interest. update its written procedures to address Statement of the Terms of Substance of The Commission notes that the proprietary trading in OTC Securities the Proposed Rule Change proposed rule change will enable and obtain NYSER approval under member organizations to expand the NYSE Amex Equities Rule 70.40(7).19 The Exchange proposes to amend the types of activities that can be conducted In light of the foregoing requirements, fee schedule applicable to Members 5 of from booth premises to include which provide for appropriate the Exchange pursuant to BYX Rules transactions in certain OTCBB and OTC limitations on and oversight of 15.1(a) and (c). Changes to the fee Markets securities for the member proprietary trading by Exchange schedule pursuant to this proposal will organization’s own account, the account members from their approved booth be effective upon filing. of an associated person, or an account premises adjacent to the floor, the The text of the proposed rule change with respect to which they or an Commission finds that the proposed is available at the Exchange’s Web site associated person thereof exercise rule change is consistent with the Act. at http://www.batstrading.com, at the investment discretion. At the same time, IV. Conclusion principal office of the Exchange, and at the proposal excludes such transactions the Commission’s Public Reference in an OTC Security that is related to a It Is Therefore Ordered, pursuant to Room. security listed or traded on the Section 19(b)(2) of the Act,20 that the Exchange or on NYSE. In addition, the proposed rule change (SR–NYSEAmex– II. Self-Regulatory Organization’s Commission notes that the proposed 2011–34) be, and it hereby is, approved. Statement of the Purpose of, and Statutory Basis for, the Proposed Rule proprietary transactions in OTC For the Commission, by the Division of Securities would remain subject to the Trading and Markets, pursuant to delegated Change registration, audit trail, and supervision authority.21 In its filing with the Commission, the requirements of NYSE Amex Equities Cathy H. Ahn, 17 Exchange included statements Rule 70.40. This includes the Deputy Secretary. concerning the purpose of, and basis for, requirement to adopt and implement [FR Doc. 2011–17690 Filed 7–13–11; 8:45 am] the proposed rule change and discussed comprehensive written procedures BILLING CODE 8011–01–P any comments it received on the governing the conduct and supervision proposed rule change. The text of these of proprietary trading in OTC Securities statements may be examined at the handled through the booth and the staff SECURITIES AND EXCHANGE places specified in Item IV below. The responsible for such activities. These COMMISSION Exchange has prepared summaries, set procedures must be reasonably designed forth in Sections A, B, and C below, of to ensure that member organizations are [Release No. 34–64846; File No. SR–BYX– 2011–013] the most significant parts of such not effecting transactions from booth statements. premises in OTC Securities that are Self-Regulatory Organizations; BATS A. Self-Regulatory Organization’s related to securities listed or traded on Y-Exchange, Inc.; Notice of Filing and 18 Statement of the Purpose of, and the Exchange or NYSE. Immediate Effectiveness of Proposed The primary reason for the earlier Statutory Basis for, the Proposed Rule Rule Change Related to Fees for Use restriction on proprietary trading by Change of BATS Y-Exchange, Inc. Floor Brokers was concern that the 1. Purpose Floor Broker’s knowledge of events on July 8, 2011. the floor and the state of the market Pursuant to Section 19(b)(1) of the The Exchange proposes to modify its would provide him with an unfair Securities Exchange Act of 1934 (the fee schedule applicable to use of the advantage over off-floor market ‘‘Act’’) 1 and Rule 19b–4 thereunder,2 Exchange effective July 1, 2011, in order participants. However, in light of the notice is hereby given that on July 1, to: (i) Decrease the standard rebate to proposed rule’s restriction on trading 2011, BATS Y-Exchange, Inc. (the remove liquidity from the Exchange; (ii) OTC Securities that are related to a ‘‘Exchange’’ or ‘‘BYX’’) filed with the modify the tiered pricing structure security listed or traded on the Securities and Exchange Commission applicable to adding displayed liquidity Exchange or NYSE, the Commission (‘‘Commission’’) the proposed rule to the Exchange’s order book; (iii) adopt believes that the opportunities for change as described in Items I, II, and a fee for non-displayed orders that add members to trade on non-public III below, which Items have been liquidity to the Exchange and receive information will be appropriately prepared by the Exchange. The price improvement when executed; (iv) minimized or eliminated. Exchange has designated the proposed increase the standard routing fee for the In addition to written procedures, the CYCLE, RECYCLE, Parallel D and member organization must have a 19 See Notice. See also supra note 12. 20 15 U.S.C. 78s(b)(2). 3 15 U.S.C. 78s(b)(3)(A)(ii). 16 15 U.S.C. 78f(b)(5). 21 17 CFR 200.30–3(a)(12). 4 17 CFR 240.19b–4(f)(2). 17 See Notice, supra note 3. 1 15 U.S.C. 78s(b)(1). 5 A Member is any registered broker or dealer that 18 See id. 2 17 CFR 240.19b–4. has been admitted to membership in the Exchange.

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Parallel 2D routing strategies; 6 and (v) forms of Pegged Orders,7 Mid-Point Peg TRIM 14 and SLIM 15 routing strategies make other modifications to certain Orders,8 and Non-Displayed Orders,9 with respect to any executions at BZX, other non-standard routing options and but does not include liquidity resulting to charge a fee of $0.0029 per share. The strategies. from Reserve Orders 10 or Discretionary Exchange also proposes to modify its Orders.11 The Exchange currently TRIM routing strategy to reflect the (i) Decrease to Standard Rebate for charges $0.0010 per share for non- exact rate paid or assessed for Removing Liquidity displayed orders that add liquidity to executions at NASDAQ BX and EDGA The Exchange proposes to reduce the and are executed on the Exchange. The Exchange, respectively. The Exchange rebate that it provides for orders that Exchange recently received approval of currently identifies both of these venues remove liquidity from the Exchange a rule to allow non-displayed orders as ‘‘low priced venues’’ and the from $0.0003 per share to $0.0002 per that are not executable at their most Exchange does not charge or rebate its share. Consistent with the current rebate aggressive price to be executed at one- Members for orders routed to and to remove liquidity, the rebate per share half minimum price variation less executed by such venues. As proposed, for executions that remove liquidity aggressive than that price.12 the Exchange will pass on rebates that from the Exchange will not apply to Accordingly, such non-displayed orders are paid by these venues in full. executions that remove liquidity in will receive price improvement upon Specifically, the Exchange proposes to securities priced under $1.00 per share. execution. Because such orders will rebate $0.0014 per share for TRIM The fee for such executions will remain receive price improvement, the routed orders executed at NASDAQ BX, at 0.10% of the total dollar value of the Exchange proposes to execute the orders as this is the same rate paid by execution. Similarly, as is currently the subject to a fee of $0.0030 per share. The NASDAQ BX and is thus a direct pass- case for adding liquidity to the Exchange believes that price through. Similarly, the Exchange Exchange, there will be no liquidity improvement received for executions of proposes to rebate $0.00015 per share rebate for adding liquidity in securities non-displayed orders will offset the for TRIM routed orders executed at priced under $1.00 per share. additional fee charged by the Exchange EDGA Exchange, as this is, again, a for such orders. direct pass-through of the rebate (ii) Changes to Tiered Fee Structure for provided by EDGA Exchange. Adding Liquidity (iv) Increase to Fee for Standard Best Execution Routing Strategies 2. Statutory Basis The Exchange currently maintains a tiered pricing structure for adding The Exchange proposes to modify the The Exchange believes that the displayed liquidity in securities priced fee charged by the Exchange for its proposed rule change is consistent with $1.00 and above that allows Members to CYCLE, RECYCLE, Parallel D and the requirements of the Act and the add liquidity free of charge to the extent Parallel 2D routing strategies from rules and regulations thereunder that such liquidity sets the national best bid $0.0026 per share to $0.0028 per share. are applicable to a national securities To be consistent with this change, the exchange, and, in particular, with the or offer (the ‘‘NBBO Setter Program’’). 16 The NBBO Setter Program is applicable Exchange proposes to charge 0.28%, requirements of Section 6 of the Act. to a Member’s orders so long as the rather than 0.26%, of the total dollar Specifically, the Exchange believes that value of the execution for any security the proposed rule change is consistent Member submitting the order achieves 17 the applicable average daily volume priced under $1.00 per share that is with Section 6(b)(4) of the Act, in that (‘‘ADV’’) requirement of at least 0.1% of routed away from the Exchange through it provides for the equitable allocation the total consolidated volume (‘‘TCV’’) these strategies. of reasonable dues, fees and other during the month. All other executions charges among members and other (v) Other Modifications to Non-Standard persons using any facility or system resulting from liquidity added by a Routing Rates Member are subject to a fee of $0.0002 which the Exchange operates or per share. The Exchange proposes to Various market centers, including the controls. The Exchange notes that it increase this standard fee to add Exchange’s affiliate, BATS Exchange, operates in a highly competitive market liquidity from $0.0002 per share to Inc. (‘‘BZX’’), are implementing certain in which market participants can $0.0003 per share and to adopt a fee to pricing changes effective July 1, 2011. readily direct order flow to competing add liquidity under the NBBO Setter The Exchange proposes various changes venues if they deem fee levels at a Program. Specifically, the Exchange to its routing strategies in connection particular venue to be excessive. The changes to Exchange execution proposes to charge $0.0002 per share for with such changes so that fees charged fees and rebates proposed by this filing Member executions under the NBBO and rebates provided reflect a direct are intended to attract order flow to the Setter Program, which will continue to pass-through of the fee charged or rebate Exchange by continuing to offer be available for Members with an ADV received when routing directly to such competitive pricing while also allowing of at least 0.1% of TCV during the market centers. For instance, the the Exchange to continue to offer month. The Exchange does not propose Exchange’s affiliate, BZX, is increasing incentives to providing aggressively to modify either the volume level the fee charged for shares removed from priced displayed liquidity. While required to meet the NBBO Setter BZX from $0.0028 per share to $0.0029 Members that remove liquidity from the Program or its existing definitions of per share. Accordingly, the Exchange Exchange, add liquidity to the Exchange ADV or TCV in connection with this proposes to modify its Destination and/or route orders through the change. Specific Order 13 to BZX, as well as its Exchange’s standard routing strategies (iii) Fee for Non-Displayed Price will be paying higher fees or receiving 7 As defined in BYX Rule 11.9(c)(8). Improved Orders 8 As defined in BYX Rule 11.9(c)(9). lower rebates due to the proposal, the 9 increased revenue received by the As defined on the Exchange’s current As defined in BYX Rule 11.9(c)(11). 10 fee schedule, ‘‘non-displayed liquidity’’ As defined in BYX Rule 11.9(c)(1). 11 As defined in BYX Rule 11.9(c)(10). 14 As defined in BYX Rule 11.13(a)(3)(G). includes liquidity resulting from all 12 See Securities Exchange Act Release No. 64753 15 As defined in BYX Rule 11.13(a)(3)(H). (June 27, 2011) (SR–BYX–2011–009). 16 15 U.S.C. 78f. 6 As defined in BYX Rule 11.13. 13 As defined in BYX Rule 11.9(c)(12). 17 15 U.S.C. 78f(b)(4).

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Exchange will be used to continue to price improvement received will offset Number SR–BYX–2011–013 on the fund programs that the Exchange the change in the fee structure for such subject line. believes will attract additional liquidity orders. The Exchange does not want to and thus improve the depth of liquidity overly incentivize hidden liquidity, as Paper Comments available on the Exchange. this would be contrary to the goals of • Send paper comments in triplicate The Exchange believes that basing its this proposal. Finally, the Exchange to Elizabeth M. Murphy, Secretary, tiered rebate structure on overall TCV, believes that the proposed changes to Securities and Exchange Commission, rather than a static number irrespective the Exchange’s non-standard routing 100 F Street NE., Washington, DC of overall volume in the securities fees and strategies are competitive, fair 20549–1090. industry, is a fair and equitable and reasonable, and non-discriminatory approach to pricing. Volume-based tiers in that they are designed to mirror the All submissions should refer to File such as the liquidity rebate tiers offered cost and/or rebate applicable to the Number SR–BYX–2011–013. This file by the Exchange have been widely execution if such routed orders were number should be included on the adopted in the equities markets, and are executed directly by the Member at each subject line if e-mail is used. To help the equitable and not unreasonably away market. Commission process and review your discriminatory because they are open to comments more efficiently, please use all members on an equal basis and B. Self-Regulatory Organization’s only one method. The Commission will provide rebates that are reasonably Statement on Burden on Competition post all comments on the Commission’s related to the value to an exchange’s The Exchange does not believe that Internet Web site (http://www.sec.gov/ market quality associated with higher the proposed rule change imposes any rules/sro/shtml). Copies of the levels of market activity, such as higher burden on competition. levels of liquidity provision and submission, all subsequent introduction of higher volumes of orders C. Self-Regulatory Organization’s amendments, all written statements into the price and volume discovery Statement on Comments on the with respect to the proposed rule process. Accordingly, the Exchange Proposed Rule Change Received From change that are filed with the believes that the proposal is not Members, Participants or Others Commission, and all written unreasonably discriminatory because it No written comments were solicited communications relating to the is consistent with the overall goals of or received. proposed rule change between the enhancing market quality. Commission and any person, other than III. Date of Effectiveness of the Despite the decrease in rebate for all those that may be withheld from the Proposed Rule Change and Timing for Members, the Exchange believes that its public in accordance with the Commission Action proposed fee structure is fair and provisions of 5 U.S.C. 552, will be equitable as the Exchange’s standard Pursuant to Section 19(b)(3)(A)(ii) of available for Web site viewing and rebate to remove liquidity still remains the Act 18 and Rule 19b–4(f)(2) printing in the Commission’s Public 19 higher than standard rebates paid by at thereunder, the Exchange has Reference Room, 100 F Street, NE., least one other market center with a designated this proposal as establishing Washington, DC 20549, on official similar fee structure, EDGA Exchange or changing a due, fee, or other charge business days between the hours of 10 ($0.00015 per share). applicable to the Exchange’s Members a.m. and 3 p.m. Copies of such filing Also, the Exchange’s proposed NBBO and non-members, which renders the will also be available for inspection and Setter liquidity adding fee of $0.0002 proposed rule change effective upon copying at the principal office of the per share and standard displayed filing. liquidity adding fee of $0.0003 per share At any time within 60 days of the Exchange. All comments received will still remain approximately the same as filing of the proposed rule change, the be posted without change; the one other market center that imposes a Commission summarily may Commission does not edit personal fee to add liquidity, EDGA Exchange temporarily suspend such rule change if identifying information from ($0.00025 charge per share). The it appears to the Commission that such submissions. You should submit only Exchange’s proposed fees for adding action is necessary or appropriate in the information that you wish to make liquidity are also significantly lower public interest, for the protection of available publicly. All submissions than the standard liquidity adding fees investors, or otherwise in furtherance of should refer to File No. SR–BYX–2011– of NASDAQ OMX BX ($0.0018 charge the purposes of the Act. 013 and should be submitted on or per share). Additionally, the Exchange before August 4, 2011. believes that the NBBO Setter Program IV. Solicitation of Comments For the Commission, by the Division of will continue to incentivize the entry of Interested persons are invited to more aggressive orders that will create Trading and Markets, pursuant to delegated submit written data, views and authority.20 tighter spreads, benefitting both arguments concerning the foregoing, Members and public investors. To the including whether the proposed rule Cathy H. Ahn, extent the proposed changes will result change is consistent with the Act. Deputy Secretary. in increased fees charged to Members, Comments may be submitted by any of [FR Doc. 2011–17692 Filed 7–13–11; 8:45 am] the Exchange believes that any the following methods: BILLING CODE 8011–01–P additional revenue it receives will allow the Exchange to devote additional Electronic Comments capital to its operations and to continue • Use the Commission’s Internet to offer competitive pricing, which, in comment form (http://www.sec.gov/ turn, will benefit Members of the rules/sro.shtml); or Exchange. • Send an e-mail to rule- The Exchange believes that the [email protected]. Please include File additional fee for executions of non- displayed orders that receive price 18 15 U.S.C. 78s(b)(3)(A)(ii). improvement is appropriate because the 19 17 CFR 240.19b–4(f)(2). 20 17 CFR 200.30–3(a)(12).

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SECURITIES AND EXCHANGE A. Self-Regulatory Organization’s EDGX Exchange proposes to COMMISSION Statement of the Purpose of, and implement these amendments to the Statutory Basis for, the Proposed Rule Exchange fee schedule on July 1, 2011. [Release No. 34–64848; File No. SR–EDGX– Change Basis 2011–19] Purpose The Exchange believes that the Self-Regulatory Organizations; EDGX Currently, Members can qualify for proposed rule changes are consistent with the objectives of Section 6 of the Exchange, Inc.; Notice of Filing and the Mega Tier Rebate and be provided Exchange Act,5 in general, and furthers Immediate Effectiveness of Proposed a rebate of $0.0034 per share for all the objectives of Section 6(b)(4),6 in Rule Change Relating to Amendments liquidity posted on EDGX if they add or route at least 4,000,000 shares of average particular, as it is designed to provide to the EDGX Exchange, Inc. Fee for the equitable allocation of reasonable daily volume prior to 9:30 a.m. or after Schedule dues, fees and other charges among its 4 p.m. (including all flags except 6) And members and other persons using its July 8, 2011. add a minimum of 38,000,000 shares of facilities. Pursuant to Section 19(b)(1) of the average daily volume on EDGX in total, The Exchange also believes that Securities Exchange Act of 1934 (the including during both market hours and proposing an additional rebate of ‘‘Act’’),1 and Rule 19b–4 thereunder,2 pre- and post-trading hours. The $0.0029 per share represents an Exchange proposes to amend the second notice is hereby given that on June 30, equitable allocation of reasonable dues, prong of this criteria for achieving a 2011, the EDGX Exchange, Inc. (the fees, and other charges since higher $0.0034 per share rebate to indicate that rebates are correlated with Member’s ‘‘Exchange’’ or the ‘‘EDGX’’) filed with Members will qualify for such rebate if the Securities and Exchange liquidity provision and/or meeting they add a minimum of 20,000,000 growth criteria beyond a designated Commission (‘‘Commission’’) the shares (instead of 38,000,000 shares) of proposed rule change as described in baseline, as described above. The new average daily volume on EDGX in total rebate offers a new, flexible way for Items I, II, and III below, which items including during both market hours and have been prepared by the self- Members to achieve a higher rebate than pre- and post-trading hours. the standard rebate of $0.0023 per share. regulatory organization. The Members can also currently qualify The Exchange believes that the Commission is publishing this notice to for the Mega Tier and be provided a proposed rebate is non-discriminatory solicit comments on the proposed rule rebate of $0.0032 per share for liquidity in that it applies uniformly to all change from interested persons. added on EDGX in either of two ways: Members. I. Self-Regulatory Organization’s (i) If the Member, on a daily basis, The Mega Tier rebate of $0.0034/ Statement of the Terms of Substance of measured monthly, posts 0.75% of the $0.0032 per share has both strict 4 the Proposed Rule Change Total Consolidated Volume (‘‘TCV’’) in liquidity provision and/or growth average daily volume; or (ii) if the criteria associated with it, and is The Exchange proposes to amend its Member, on a daily basis, measured $0.0003/$0.0001 greater than the Ultra fees and rebates applicable to Members 3 monthly, posts 10,000,000 shares more Tier rebate ($0.0031 per share) and of the Exchange pursuant to EDGX Rule than their February 2011 average daily $0.0004/$0.0002 greater than the Super 15.1(a) and (c). All of the changes volume added to EDGX. The Exchange Tier rebate ($0.0030 per share) and is described herein are applicable to EDGX proposes to amend the Mega Tier $0.0005/$0.0003 per share greater than Members. The text of the proposed rule criteria in (ii), above, for achieving a the new rebate proposed of $0.0029 per change is available on the Exchange’s $0.0032 rebate to indicate that Members share. Internet Web site at http:// will qualify for such rebate if, on a daily For example, and as proposed in this filing, based on average TCV for May www.directedge.com. basis, measured monthly, they post 0.12% of the TCV in average daily 2011 (7.0 billion), in order for a Member II. Self-Regulatory Organization’s volume more than their February 2011 to qualify for the Mega Tier rebate of Statement of the Purpose of, and average daily volume added to EDGX. $0.0034, the Member would have to add Statutory Basis for, the Proposed Rule This latter criteria in (ii) is designed to or route at least 4,000,000 shares of Change reward a Member’s growth pattern in average daily volume during pre- and providing liquidity beyond a designated post-trading hours and add a minimum In its filing with the Commission, the baseline (Feb. 2011 average daily of 20,000,000 shares of average daily self-regulatory organization included volume added to EDGX). volume on EDGX in total, including statements concerning the purpose of, Finally, the Exchange proposes to during both market hours and pre- and and basis for, the proposed rule change provide an additional rebate of $0.0029 post-trading hours. The criteria for this and discussed any comments it received per share for Members who post 0.065% qualification is the most stringent of the on the proposed rule change. The text of TCV in average daily volume more liquidity provision criteria amongst the of these statements may be examined at than their February 2011 average daily tiers as fewer Members generally trade the places specified in Item IV below. volume added to EDGX, unless they during pre- and post-trading hours The self-regulatory organization has otherwise qualify for a higher rebate. because of the limited time parameters prepared summaries, set forth in This criteria is also designed to reward associated with these trading sessions. sections A, B and C below, of the most a Member’s growth pattern in providing The Exchange believes that this higher significant aspects of such statements. liquidity beyond a designated baseline rebate awarded to Members would (Feb. 2011 average daily volume added incent liquidity during these trading sessions. Such increased volume 1 15 U.S.C. 78s(b)(1). to EDGX). 2 17 CFR 240.19b–4. increases potential revenue to the Exchange, and would allow the 3 A Member is any registered broker or dealer, or 4 TCV is defined as volume reported by all any person associated with a registered broker or exchanges and trade reporting facilities to the dealer, that has been admitted to membership in the consolidated transaction reporting plans for Tapes 5 15 U.S.C. 78f. Exchange. A, B and C securities. 6 15 U.S.C. 78f(b)(4).

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Exchange to spread its administrative enjoy cost savings, supporting the Exchange believes the fees and credits and infrastructure costs over a greater quality of price discovery, promoting remain competitive with those charged number of shares, leading to lower per market transparency and improving by other venues and therefore continue share costs. These lower per share costs investor protection. Volume-based to be reasonable and equitably allocated would allow the Exchange to pass on rebates such as the ones proposed to Members. the savings to Members in the form of herein have been widely adopted in the B. Self-Regulatory Organization’s a higher rebate. The increased liquidity cash equities markets, and are equitable Statement on Burden on Competition also benefits all investors by deepening because they are open to all members on EDGX’s liquidity pool, offering an equal basis and provide discounts The proposed rule change does not additional flexibility for all investors to that are reasonably related to the value impose any burden on competition that enjoy cost savings, supporting the to an exchange’s market quality is not necessary or appropriate in quality of price discovery, promoting associated with higher levels of market furtherance of the purposes of the Act. activity, such as higher levels of market transparency and improving C. Self-Regulatory Organization’s liquidity provision and/or growth investor protection. Volume-based Statement on Comments on the patterns, and introduction of higher rebates such as the ones proposed Proposed Rule Change Received From volumes of orders into the price and herein have been widely adopted in the Members, Participants or Others cash equities markets, and are equitable volume discovery processes. because they are open to all members on In order to qualify for the Ultra Tier, The Exchange has not solicited, and an equal basis and provide discounts which has less stringent criteria than the does not intend to solicit, comments on that are reasonably related to the value analogous liquidity provision criteria of this proposed rule change. The to an exchange’s market quality the Mega Tier, the Member would have Exchange has not received any associated with higher levels of market to post 0.50% of TCV. Based on average unsolicited written comments from activity, such as higher levels of TCV for May 2011 (7.0 billion shares), members or other interested parties. this would be 35 million shares on liquidity provision and introduction of III. Date of Effectiveness of the EDGX. higher volumes of orders into the price Proposed Rule Change and Timing for and volume discovery processes. Finally, the Super Tier has the least stringent criteria of the analogous tiers Commission Action Another way a Member can qualify that only reward liquidity provision. In The foregoing rule change has become for the Mega Tier (with a rebate of order for a Member to qualify for this effective pursuant to Section 19(b)(3) of $0.0032 per share) would be to post rebate, the Member would have to post the Act 7 and Rule 19b–4(f)(2) 8 0.75% of TCV. Based on average TCV at least 10 million shares of average thereunder. At any time within 60 days for May 2011 (7.0 billion), this would be daily volume to EDGX. As stated above, of the filing of such proposed rule 52.5 million shares on EDGX. A second these rebates also result, in part, from change, the Commission summarily may method, as proposed in this filing, to lower administrative and other costs temporarily suspend such rule change if qualify for the rebate of $0.0032 per associated with higher volume. it appears to the Commission that such share would be to post 0.12% of the Finally, the Exchange also believes action is necessary or appropriate in the TCV in average daily volume more than that adding criteria that allows Members public interest, for the protection of the Member’s February 2011 average to qualify for a $0.0029 per share rebate investors, or otherwise in furtherance of daily volume added to EDGX. As if they add an average of 0.065% of the the purposes of the Act. mentioned above, this criteria is TCV in average daily volume more than designed to reward growth by a Member their February 2011 average daily IV. Solicitation of Comments beyond a designated baseline (Feb. 2011 volume added to EDGX, provided they Interested persons are invited to average daily volume added to EDGX). don’t qualify for a higher rebate, allows submit written data, views, and Assuming the Member’s February 2011 Members even greater flexibility with arguments concerning the foregoing, average daily volume added to EDGX respect to achieving an additional rebate including whether the proposed rule was 0 shares, this would amount to an and rewards growth patterns in volume change is consistent with the Act. additional 8.4 million shares. The by Members as this rebate’s conditions Comments may be submitted by any of Exchange believes that requiring encourage Members to add increasing the following methods: Members to post 0.12% of the TCV in amounts of liquidity to EDGX each average daily volume more than a month. Based on an average daily Electronic Comments February 2011 average daily baseline volume in February 2011 of 0 shares, • Use the Commission’s Internet volume offers an additional, flexible the Member would have to add 4.5 comment form (http://www.sec.gov/ way to achieve the Mega Tier rebate and million shares to qualify for such rebate. rules/sro.shtml); or encourages Members to add increasing This rebate also result, in part, from • Send an e-mail to rule- amounts of liquidity to EDGX each lower administrative and other costs [email protected]. Please include File month, and thereby rewards a Member’s associated with higher volume. Number SR–EDGX–2011–19 on the growth patterns. Such increased volume The Exchange notes that it operates in subject line. increases potential revenue to the a highly competitive market in which Exchange, and would allow the market participants can readily direct Paper Comments Exchange to spread its administrative order flow to competing venues if they • Send paper comments in triplicate and infrastructure costs over a greater deem fee levels at a particular venue to to Elizabeth M. Murphy, Secretary, number of shares, leading to lower per be excessive. The proposed rule changes Securities and Exchange Commission, share costs. These lower per share costs reflect a competitive pricing structure 100 F Street, NE., Washington, DC would allow the Exchange to pass on designed to incent market participants 20549–1090. the savings to Members in the form of to direct their order flow to the All submissions should refer to File a higher rebate. The increased liquidity Exchange. The Exchange believes that Number SR–EDGX–2011–19. This file also benefits all investors by deepening the proposed rates are non- EDGX’s liquidity pool, offering discriminatory in that they apply 7 15 U.S.C. 78s(b)(3)(A). additional flexibility for all investors to uniformly to all Members. The 8 17 CFR 19b–4(f)(2).

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number should be included on the (‘‘Commission’’) the proposed rule structure; (iii) adopt a program, the subject line if e-mail is used. To help the change as described in Items I, II, and ‘‘NBBO Setter Program,’’ which will Commission process and review your III below, which Items have been provide an additional rebate specifically comments more efficiently, please use prepared by the Exchange. The for orders that set the national best bid only one method. The Commission will Exchange has designated the proposed or offer (the ‘‘NBBO’’), subject to average post all comments on the Commission’s rule change as one establishing or daily volume requirements; (iv) reduce Internet Web site (http://www.sec.gov/ changing a member due, fee, or other the rebate for adding non-displayed rules/sro.shtml). Copies of the charge imposed by the Exchange under liquidity to the Exchange’s order book; submission, all subsequent Section 19(b)(3)(A)(ii) of the Act 3 and (v) discontinue payment of a liquidity amendments, all written statements Rule 19b-4(f)(2) thereunder,4 which rebate for non-displayed orders that add with respect to the proposed rule renders the proposed rule change liquidity to the Exchange and receive change that are filed with the effective upon filing with the price improvement when executed; (vi) Commission, and all written Commission. The Commission is increase the standard routing fee for the communications relating to the publishing this notice to solicit CYCLE, RECYCLE, Parallel D and proposed rule change between the comments on the proposed rule change Parallel 2D routing strategies; 6 and (vii) Commission and any person, other than from interested persons. make other modifications to certain those that may be withheld from the I. Self-Regulatory Organization’s other non-standard routing options and public in accordance with the Statement of the Terms of Substance of strategies. provisions of 5 U.S.C. 552, will be the Proposed Rule Change available for Web site viewing and (i) Increase to Standard Access Fee printing in the Commission’s Public The Exchange proposes amend the fee The Exchange currently charges 5 Reference Room, 100 F Street, NE., schedule applicable to Members and $0.0028 per share for all orders executed Washington, DC 20549, on official non-members of the Exchange pursuant on the Exchange that remove liquidity business days between the hours of 10 to BATS Rules 15.1(a) and (c). Changes from the Exchange. The Exchange a.m. and 3 p.m. Copies of the filing also to the fee schedule pursuant to this proposes to increase the standard fee to will be available for inspection and proposal will be effective upon filing. remove liquidity from the Exchange to copying at the principal office of the The text of the proposed rule change $0.0029 per share. Consistent with the Exchange. All comments received will is available at the Exchange’s Web site current fee to remove liquidity, the be posted without change; the at http://www.batstrading.com, at the charge per share for executions that Commission does not edit personal principal office of the Exchange, and at remove liquidity from the Exchange will identifying information from the Commission’s Public Reference not apply to executions that remove submissions. You should submit only Room. liquidity in securities priced under information that you wish to make II. Self-Regulatory Organization’s $1.00 per share. The fee for such available publicly. All submissions Statement of the Purpose of, and executions will remain at 0.10% of the should refer to File Number SR–EDGX– Statutory Basis for, the Proposed Rule total dollar value of the execution. 2011–19 and should be submitted on or Change Similarly, as is currently the case for the before August 4, 2011. In its filing with the Commission, the rebate for adding liquidity to the For the Commission, by the Division of Exchange included statements Exchange, there will be no liquidity Trading and Markets, pursuant to delegated concerning the purpose of, and basis for, rebate for adding liquidity in securities authority.9 priced under $1.00 per share. Cathy H. Ahn, the proposed rule change and discussed any comments it received on the Deputy Secretary. (ii) Tiered Rebate Structure proposed rule change. The text of these [FR Doc. 2011–17694 Filed 7–13–11; 8:45 am] statements may be examined at the The Exchange currently rebates BILLING CODE 8011–01–P places specified in Item IV below. The $0.0027 per share for orders that add Exchange has prepared summaries, set displayed liquidity to the Exchange’s forth in Sections A, B, and C below, of order book and are executed by the SECURITIES AND EXCHANGE Exchange. The Exchange proposes to COMMISSION the most significant parts of such statements. decrease the standard rebate for adding [Release No. 34–64847; File No. SR–BATS– displayed liquidity to $0.0025 per share 2011–019] A. Self-Regulatory Organization’s and to simultaneously adopt two Statement of the Purpose of, and volume-based tiers through which Self-Regulatory Organizations; BATS Statutory Basis for, the Proposed Rule Members can realize higher rebates for Exchange, Inc.; Notice of Filing and Change adding displayed liquidity, as further Immediate Effectiveness of Proposed 1. Purpose described below. Rule Change Related to Fees for Use First, the Exchange proposes to In addition to minor structural of BATS Exchange, Inc. provide a rebate of $0.0029 per share for changes, the Exchange proposes to orders that add displayed liquidity to July 8, 2011. modify the fee schedule to: (i) Increase the Exchange’s order book for any Pursuant to Section 19(b)(1) of the the standard fee to access the Exchange; Member that has an average daily Securities Exchange Act of 1934 (ii) introduce a tiered pricing structure volume (‘‘ADV’’), as defined below, (‘‘Act’’) 1 and Rule 19b–4 thereunder,2 applicable to the rebate for adding equal to or greater than 1.0% of total notice is hereby given that on July 1, displayed liquidity to the Exchange’s consolidated volume (‘‘TCV’’), also as 2011, BATS Exchange, Inc. (the order book, including the adoption of defined below. Accordingly, the ‘‘Exchange’’ or ‘‘BATS’’) filed with the definitions relating to such pricing Securities and Exchange Commission proposal will result in an increased rebate of $0.0002 for Members with an 3 15 U.S.C. 78s(b)(3)(A)(ii). 9 17 CFR 200.30–3(a)(12). 4 17 CFR 240.19b–4(f)(2). ADV of 1.0% of TCV or more. 1 15 U.S.C. 78s(b)(1). 5 A Member is any registered broker or dealer that 2 17 CFR 240.19b–4. has been admitted to membership in the Exchange. 6 As defined in BATS Rule 11.13.

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Second, the Exchange proposes to shares per day. Using these volumes as aggressive order is entered prior to the provide a rebate of $0.0027 per share for an example, to reach the Exchange’s original order being executed. orders that add displayed liquidity to proposed tier of 1.0% of average TCV, (iv) Reduction of Rebate for Non- the Exchange’s order book where the and thus qualify for the higher rebate of Displayed Orders Member has an ADV equal to or greater $0.0029 per share, a Member would than 0.5% but less than 1.0% of average need to have an ADV of at least 50 As defined on the Exchange’s current TCV. Thus, Members qualifying for the million shares traded on the Exchange fee schedule, ‘‘non-displayed liquidity’’ second tier will receive the same rebate per day. If, in the next month, volumes includes liquidity resulting from all for adding displayed liquidity as they doubled, and the TCV for the month forms of Pegged Orders,9 Mid-Point Peg do today. was 200 billion shares, then a Member Orders,10 and Non-Displayed Orders,11 In addition, the Exchange proposes to would need to have an ADV of at least but does not include liquidity resulting adopt definitions for both ADV and 100 million shares traded on the from Reserve Orders12 or Discretionary TCV. For purposes of the fee schedule, Exchange per day to have an ADV equal Orders.13 The Exchange currently the proposed definition of ADV is to 1.0% of average TCV. The Exchange provides a rebate of $0.0020 per share average daily volume calculated as the believes that basing its tiered pricing on for non-displayed orders executed on number of shares added or removed, TCV rather than a specific number of the Exchange. Consistent with other combined, per day on a monthly basis. shares is a preferable measure of overall aspects of this proposal that are The Exchange proposes to make clear in activity given the fluctuation of volumes intended to incent aggressively priced, the definition of ADV that routed shares in the securities industry. displayed liquidity, the Exchange are not included in the Exchange’s In conjunction with the adoption of proposes to reduce the rebate that it calculation of ADV, but rather, only these definitions, the Exchange provides for non-displayed orders to volume executed on the Exchange proposes to move, but not to otherwise $0.0017 per share. counts towards a Member’s ADV. The modify, the footnote on the Exchange’s (v) Discontinued Rebate for Non- Exchange also proposes to allow current fee schedule defining ‘‘non- Displayed Price Improved Orders affiliated entities to aggregate their order displayed order types’’ as well as flow for purposes of the Exchange’s footnotes in the portion of the As noted above, the Exchange determination of ADV with respect to Exchange’s fee schedule applicable to currently provides a liquidity rebate of pricing tiers if such entities provide BATS Options (as defined below) and $0.0020 per share for all non-displayed prior notice to the Exchange. physical connection charges. orders that add liquidity to the Specifically, to the extent two or more Exchange’s order book and are executed (iii) NBBO Setter Program affiliated companies maintain separate by the Exchange. The Exchange recently memberships with the Exchange and Consistent with programs offered by received approval of a rule to allow non- can demonstrate their affiliation by the Exchange for its equity options displayed orders that are not executable showing they control, are controlled by, platform (‘‘BATS Options’’) 7 and by the at their most aggressive price to be or are under common control with each Exchange’s affiliated exchange, BATS Y- executed at one-half minimum price other, the Exchange will permit such Exchange, Inc. (‘‘BYX’’),8 the Exchange variation less aggressive than that Members to count overall volume of the proposes to adopt a program to attract price.14 Accordingly, such non- affiliates in calculating ADV. The aggressively priced displayed liquidity displayed orders will receive price Exchange will verify such affiliate using by providing an additional rebate for improvement upon execution. Because a Member’s Form BD, which lists orders that set the NBBO to Members such orders will receive price control affiliates. that reach either of the volume-based improvement, the Exchange proposes to Rather than basing its pricing rebate tiers described above. execute the orders without providing structure on a static number of shares Specifically, the Exchange proposes to either a liquidity rebate or charging a executed by a Member each day, the provide any Member with an ADV equal fee. The Exchange believes that price Exchange proposes to adopt its tiered to or greater than 0.5% of TCV with an improvement received for executions of pricing structure such that it is based on additional rebate of $0.0002 per share non-displayed orders (rather than price total consolidated volume, or TCV, and for displayed liquidity that sets the improvement and a liquidity rebate) is is thus variable based on overall NBBO and is later executed on the appropriate because the price volumes in the securities industry. As Exchange. improvement received will offset the proposed, TCV is defined as total An order that is entered at the most change in the fee structure for such consolidated volume calculated as the aggressive price both on the Exchange’s orders. volume reported by all exchanges and order book and according to then (vi) Increase to Fee for Standard Best trade reporting facilities to a current consolidated data from the Execution Routing Strategies consolidated transaction reporting plan applicable securities industry processor for the month for which the fees apply. (‘‘SIP’’) will be determined to have set The Exchange proposes to modify the To illustrate the Exchange’s application the national best bid or offer for fee charged by the Exchange for its of TCV, if the overall volume of purposes of the NBBO Setter Program CYCLE, RECYCLE, Parallel D and securities traded as reported by all without regard to whether a more Parallel 2D routing strategies from exchanges and trade reporting facilities $0.0028 per share to $0.0029 per share. is 100 billion shares in a given month, 7 See Securities Exchange Act Release No. 63632 To be consistent with this change, the this amount will be used as the TCV (January 3, 2011), 76 FR 1205 (January 7, 2011) (SR– Exchange proposes to charge 0.29%, against which the Exchange’s tiered BATS–2010–038) (adopting an NBBO Setter Rebate rather than 0.28%, of the total dollar for BATS Options); see also Securities Exchange pricing will be measured for all trading Act Release No. 64211 (April 6, 2011), 76 FR 20414 9 As defined in BATS Rule 11.9(c)(8). activity during the month. The amount (April 12, 2011) (SR–BATS–2011–012) (modifying 10 of overall TCV in the month will be the NBBO Setter Program for BATS Options to As defined in BATS Rule 11.9(c)(9). 11 As defined in BATS Rule 11.9(c)(11). divided by the number of trading days include a volume requirement based on TCV). 8 See Securities Exchange Act Release No. 64429 12 As defined in BATS Rule 11.9(c)(1). to determine average TCV; for instance, (May 6, 2011), 76 FR 27694 (May 12, 2011) (SR– 13 As defined in BATS Rule 11.9(c)(10). 100 billion shares divided by 20 trading BYX–2011–008) (adopting an NBBO Setter Rebate 14 See Securities Exchange Act Release No. 64754 days is an average TCV of 5 billion for BYX). (June 27, 2011) (SR–BATS–2011–015).

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value of the execution for any security of reasonable dues, fees and other rebates. Further, Members with current priced under $1.00 per share that is charges among members and other volumes equal to or exceeding 1.0% of routed away from the Exchange through persons using any facility or system TCV will receive larger rebates than these strategies. which the Exchange operates or they currently receive. Despite the controls. The Exchange notes that it decrease in rebate for all other Members, (vii) Other Modifications to Non- operates in a highly competitive market the Exchange believes that its proposed Standard Routing Rates in which market participants can fee structure is fair and equitable as the Various market centers, including the readily direct order flow to competing Exchange’s standard rebate still remains Exchange’s affiliate, BYX, are venues if they deem fee levels at a higher than standard rebates paid by implementing certain pricing changes particular venue to be excessive. other markets with similar fee effective July 1, 2011. The Exchange The changes to Exchange execution structures, such as NYSE Arca and proposes various changes to its routing fees and rebates proposed by this filing Nasdaq. strategies in connection with such are intended to attract order flow to the The proposed language permitting changes so that fees charged and rebates Exchange by continuing to offer aggregation of volume amongst provided reflect a direct pass-through of competitive pricing while also creating corporate affiliates for purposes of the the fee charged or rebate received when incentives to providing aggressively ADV calculation is intended to avoid routing directly to such market centers. priced displayed liquidity. While disparate treatment of firms that have For instance, the Exchange’s affiliate, Members that remove liquidity from the divided their various business activities BYX, is reducing the rebate paid for Exchange and/or route orders through between separate corporate entities as shares removed from BYX from $0.0003 the Exchange’s standard routing compared to firms that operate those per share to $0.0002 per share. strategies will be paying higher fees due business activities within a single Accordingly, the Exchange proposes to to the proposal, the increased revenue corporate entity. By way of example, modify its Destination Specific Order; 15 received by the Exchange will be used many firms that are Members of the to BYX, as well as its TRIM 16 and to fund programs that the Exchange Exchange operate several different SLIM 17 routing strategies with respect believes will attract additional liquidity business lines within the same to any executions at BYX, to pay a and thus improve the depth of liquidity corporate entity. In contrast, other firms rebate of $0.0002 per share. The available on the Exchange. Accordingly, may be part of a corporate structure that Exchange also proposes to modify its the Exchange believes that the higher separates those business lines into TRIM routing strategy to reflect the access and routing fees will benefit different corporate affiliates, either for exact rate paid or assessed for Members’ results in trading on the business, compliance or historical executions at NASDAQ BX and EDGA Exchange to the extent the tiered rebate reasons. Those corporate affiliates, in Exchange, respectively. The Exchange structure adopted by the Exchange for turn, are required to maintain separate currently identifies both of these venues adding liquidity and the adoption of the memberships with the Exchange in as ‘‘low priced venues’’ and the NBBO Setter Program incentivize order to access the Exchange. Absent the Exchange does not charge or rebate its liquidity providers to provide more proposed policy, such corporate Members for orders routed to and aggressively priced liquidity. affiliates would not receive the same executed by such venues. As proposed, The Exchange believes that basing its treatment as firms operating similar the Exchange will pass on rebates that tiered rebate structure on overall TCV, business lines within a single entity that are paid by these venues in full. rather than a static number irrespective is a Member of the Exchange. Specifically, the Exchange proposes to of overall volume in the securities Accordingly, the Exchange believes that rebate $0.0014 per share for TRIM industry, is a fair and equitable its proposed policy is fair and equitable, routed orders executed at NASDAQ BX, approach to pricing. Volume-based tiers and not unreasonably discriminatory. In as this is the same rate paid by such as the liquidity rebate tiers addition to ensuring fair and equal NASDAQ BX and is thus a direct pass- proposed in this filing have been widely treatment of its Members, the Exchange through. Similarly, the Exchange adopted in the equities markets, and are does not want to create incentives for its proposes to rebate $0.00015 per share equitable and not unreasonably Members to restructure their business for TRIM routed orders executed at discriminatory because they are open to operations or compliance functions EDGA Exchange, as this is, again, a all members on an equal basis and simply due to the Exchange’s pricing direct pass-through of the rebate provide rebates that are reasonably structure. provided by EDGA Exchange. related to the value to an exchange’s Additionally, the Exchange believes market quality associated with higher that the proposed NBBO Setter Rebate, 2. Statutory Basis levels of market activity, such as higher similar to rebates now offered on BATS The Exchange believes that the levels of liquidity provision and Options for six months and on the proposed rule change is consistent with introduction of higher volumes of orders Exchange’s affiliate, BYX, for two the requirements of the Act and the into the price and volume discovery months, will incentivize the entry of rules and regulations thereunder that process. Accordingly, the Exchange more aggressive orders that will create are applicable to a national securities believes that the proposal is not tighter spreads, benefitting both exchange, and, in particular, with the unreasonably discriminatory because it Members and public investors. The requirements of Section 6 of the Act.18 is consistent with the overall goals of Exchange further believes that Specifically, the Exchange believes that enhancing market quality. conditioning a Member’s ability to The proposed modification to the the proposed rule change is consistent receive the NBBO Setter Rebate on Exchange’s rebate structure will have with Section 6(b)(4) of the Act,19 in that reaching one of the Exchange’s volume variable affects on Members of the it provides for the equitable allocation tiers is consistent with the Act for the Exchange, dependent on the volume of reasons described above with respect to 15 As defined in BATS Rule 11.9(c)(12). transaction activity they conduct on the volume-based tiers generally. 16 As defined in BATS Rule 11.13(a)(3)(G). Exchange. The Exchange notes that The Exchange believes that the 17 As defined in BATS Rule 11.13(a)(3)(H). Members with current volumes meeting elimination of a rebate for executions of 18 15 U.S.C. 78f. the ADV tier of 0.5% to 1.0% of TCV non-displayed orders that receive price 19 15 U.S.C. 78f(b)(4). will not be impacted by any decrease in improvement is appropriate because the

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price improvement received will offset change is consistent with the Act. SECURITIES AND EXCHANGE the change in the fee structure for such Comments may be submitted by any of COMMISSION orders. The Exchange believes that if it the following methods: provided both a rebate and price Electronic Comments [Release No. 64845; File No. SR–Phlx–2011– improvement for such executions the 90] Exchange would be overly incentivizing • Use the Commission’s Internet hidden liquidity, which is contrary to comment form (http://www.sec.gov/ Self-Regulatory Organizations; Notice the goals of this proposal. Further, the rules/sro.shtml); or of Filing of Proposed Rule Change by Exchange believes that reducing the • Send an e-mail to rule- NASDAQ OMX PHLX LLC Relating to standard rebate for non-displayed [email protected]. Please include File Board of Director Qualifications liquidity is beneficial to market Number SR–BATS–2011–019 on the participants including public investors, subject line. July 8, 2011. as this change, too, allows the Exchange Pursuant to Section 19(b)(1) of the to provide additional incentives for Paper Comments Securities Exchange Act of 1934 displayed liquidity. • Send paper comments in triplicate 1 2 Finally, the Exchange believes that (‘‘Act’’), and Rule 19b–4 thereunder, to Elizabeth M. Murphy, Secretary, notice is hereby given that on June 30, the proposed changes to the Exchange’s Securities and Exchange Commission, non-standard routing fees and strategies 2011, NASDAQ OMX PHLX LLC 100 F Street, NE., Washington, DC (‘‘Phlx’’ or ‘‘Exchange’’) filed with the are competitive, fair and reasonable, and 20549–1090. non-discriminatory in that they are Securities and Exchange Commission designed to mirror the cost and/or All submissions should refer to File (‘‘Commission’’) the proposed rule rebate applicable to the execution if Number SR–BATS–2011–019. This file change as described in Items I, II, and such routed orders were executed number should be included on the III below, which Items have been directly by the Member at each away subject line if e-mail is used. To help the prepared by the Exchange. The market. Commission process and review your Commission is publishing this notice to comments more efficiently, please use solicit comments on the proposed rule B. Self-Regulatory Organization’s only one method. The Commission will change from interested persons. Statement on Burden on Competition post all comments on the Commission’s The Exchange does not believe that Internet Web site (http://www.sec.gov/ I. Self-Regulatory Organization’s the proposed rule change imposes any rules/sro/shtml). Copies of the Statement of the Terms of Substance of burden on competition. submission, all subsequent the Proposed Rule Change amendments, all written statements C. Self-Regulatory Organization’s with respect to the proposed rule The Exchange, pursuant to Section Statement on Comments on the change that are filed with the 19(b)(1) of the Act 3 and Rule 19b–4 Proposed Rule Change Received From Commission, and all written thereunder,4 proposes to amend Members, Participants, or Others communications relating to the Exchange By-Law Article III, Section 3– No written comments were solicited proposed rule change between the 2 regarding Board of Director or received. Commission and any person, other than qualifications. those that may be withheld from the III. Date of Effectiveness of the The text of the proposed rule change public in accordance with the is available on the Exchange’s Web site Proposed Rule Change and Timing for provisions of 5 U.S.C. 552, will be Commission Action at http://www.nasdaqtrader.com/ available for Web site viewing and micro.aspx?id=PHLXRulefilings, at the Pursuant to Section 19(b)(3)(A)(ii) of printing in the Commission’s Public principal office of the Exchange, and at the Act 20 and Rule 19b–4(f)(2) Reference Room, 100 F Street, NE., the Commission’s Public Reference thereunder,21 the Exchange has Washington, DC 20549, on official Room. designated this proposal as establishing business days between the hours of 10 or changing a due, fee, or other charge a.m. and 3 p.m. Copies of such filing II. Self-Regulatory Organization’s applicable to the Exchange’s Members will also be available for inspection and Statement of the Purpose of, and and non-members, which renders the copying at the principal office of the Statutory Basis for, the Proposed Rule proposed rule change effective upon Exchange. All comments received will Change filing. be posted without change; the At any time within 60 days of the Commission does not edit personal In its filing with the Commission, the filing of the proposed rule change, the identifying information from Exchange included statements Commission summarily may submissions. You should submit only concerning the purpose of and basis for temporarily suspend such rule change if information that you wish to make the proposed rule change and discussed it appears to the Commission that such available publicly. All submissions any comments it received on the action is necessary or appropriate in the should refer to File No. SR–BATS– proposed rule change. The text of these public interest, for the protection of 2011–019 and should be submitted on statements may be examined at the investors, or otherwise in furtherance of or before August 4, 2011. places specified in Item IV below. The the purposes of the Act. For the Commission, by the Division of Exchange has prepared summaries, set IV. Solicitation of Comments Trading and Markets, pursuant to delegated forth in sections A, B, and C below, of authority.22 Interested persons are invited to the most significant aspects of such Cathy H. Ahn, submit written data, views and statements. arguments concerning the foregoing, Deputy Secretary. including whether the proposed rule [FR Doc. 2011–17693 Filed 7–13–11; 8:45 am] 1 15 U.S.C. 78s(b)(1). BILLING CODE 8011–01–P 2 17 CFR 240.19b–4. 20 15 U.S.C. 78s(b)(3)(A)(ii). 3 15 U.S.C. 78s(b)(1). 21 17 CFR 240.19b–4(f)(2). 22 17 CFR 200.30–3(a)(12). 4 17 CFR 240.19b–4.

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A. Self-Regulatory Organization’s trade, to remove impediments to and to determine whether the proposed rule Statement of the Purpose of, and perfect the mechanism of a free and change should be disapproved. Statutory Basis for, the Proposed Rule open market and a national market Change system, and, in general to protect IV. Solicitation of Comments investors and the public interest, 1. Purpose Interested persons are invited to because the composition of the submit written data, views, and The purpose of the proposed rule Exchange’s Board of Directors fosters arguments concerning the foregoing, change is to amend Exchange By-Law the protection of investors by insuring including whether the proposed rule Article III, Section 3–2 to expand the [sic] that they are represented on the change is consistent with the Act. qualifications for a director position so Board. Comments may be submitted by any of that the Exchange’s Board of Directors is The Exchange believes that the the following methods: comprised of representatives of various proposed Board composition satisfies interests. Specifically, the Exchange Section 6(b)(3) of the Act,13 in that one Electronic Comments proposes to amend the current provision Director representative represents • of Section 3–2, regarding issuer issuers and investors. The Board Use the Commission’s Internet representative(s), to require at least one composition continues to provide for comment form (http://www.sec.gov/ Director representative of issuers and fair representation on the Exchange’s rules/sro.shtml); or investors, along with the requisite board as required by Section 6(b)(3) of • Send an e-mail to rule- Public Directors,5 Industry Directors 6 the Act 14 in that twenty percent of the [email protected]. Please include File and Member Representative Directors.7 Directors represent members and there Number SR–Phlx–2011–90 on the Currently, Article III, Section 3–2 is a process for selecting Member subject line. provides: ‘‘[T]he number of Non- Representative Directors to the Board.15 Industry Directors, including at least Finally, the Public Directors continue to Paper Comments one Public Director and at least one ensure that no single group of market • Send paper comments in triplicate issuer representative (or if the Board participants has the ability to consists of ten or more Directors, at least to Elizabeth M. Murphy, Secretary, systematically disadvantage other Securities and Exchange Commission, two issuer representatives), shall equal market participants through the or exceed the sum of the number of 100 F Street, NE., Washington, DC Exchange’s governance process and also 20549–1090. Industry Directors and Member bring a unique, unbiased prospective to Representative Directors to be elected the Board. The Exchange believes that All submissions should refer to File under the terms of the LLC Agreement.’’ this amendment continues to maintain Number SR–Phlx-2011–90. This file The Exchange recently adopted this the necessary board requirements which number should be included on the provision to its By-Laws.8 serve to protect the public interest and subject line if e-mail is used. To help the The Exchange is now seeking to provide for fair representation of Commission process and review your expand the requirement to have a members. comments more efficiently, please use Director representative of issuers and only one method. The Commission will B. Self-Regulatory Organization’s investors instead of the requirement to post all comments on the Commission’s Statement on Burden on Competition have at least one issuer representative Internet Web site (http://www.sec.gov/ (or if the Board consists of ten or more The Exchange does not believe that rules/sro.shtml). Copies of the Directors at least two issuer the proposed rule change will impose submission, all subsequent representatives.9 The Director any burden on competition not amendments, all written statements representative of issuers and investors necessary or appropriate in furtherance with respect to the proposed rule would be nominated by the Nominating of the purposes of the Act. change that are filed with the Committee and elected by the sole C. Self-Regulatory Organization’s Commission, and all written shareholder, The NASDAQ OMX Group, communications relating to the Inc.10 Statement on Comments on the Proposed Rule Change Received From proposed rule change between the 2. Statutory Basis Members, Participants, or Others Commission and any person, other than those that may be withheld from the The Exchange believes that its No written comments were either public in accordance with the proposal is consistent with Section 6(b) solicited or received. provisions of 5 U.S.C. 552, will be of the Act 11 in general, and furthers the 12 III. Date of Effectiveness of the available for Web site viewing and objectives of Section 6(b)(5) of the Act printing in the Commission’s Public in particular, in that it is designed to Proposed Rule Change and Timing for Commission Action Reference Room, 100 F Street, NE., promote just and equitable principles of Washington, DC 20549, on official Within 45 days of the date of business days between the hours of 10 5 See Exchange By-Law Article I(gg). publication of this notice in the Federal a.m. and 3 p.m. Copies of the filing also 6 See Exchange By-Law Article I(p). Register or within such longer period (i) will be available for inspection and 7 See Exchange By-Law Article I(w). As the Commission may designate up to 8 copying at the principal office of the See Securities Exchange Act Release No. 64338 90 days of such date if it finds such (April 25, 2011), 76 FR 24069 (April 29, 2011) (SR– Exchange. All comments received will longer period to be appropriate and Phlx–2011–13) (A rule change, among other things, be posted without change; the publishes its reasons for so finding or to conform the Exchange By-Laws to the By-Laws Commission does not edit personal of the NASDAQ Stock Market LLC). (ii) as to which the Exchange consents, identifying information from 9 The Exchange believes that this qualification is the Commission shall: (a) By order submissions. You should submit only more appropriate for the Exchange which does not approve or disapprove such proposed have the expansive listings of the NASDAQ Stock information that you wish to make rule change, or (b) institute proceedings Market LLC. available publicly. All submissions 10 See By-Law Article V, Section 5–3 and Article II, Section 2–1. 13 15 U.S.C. 78f(b)(3). should refer to File Number SR–Phlx– 11 15 U.S.C. 78f(b). 14 15 U.S.C. 78f(b)(3). 2011–90 and should be submitted on or 12 15 U.S.C. 78f(b)(5). 15 See By-Law Article II. before August 4, 2011.

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For the Commission, by the Division of organizations to access other markets (a) The OTC Security is issued by an issuer Trading and Markets, pursuant to delegated and trade a wider array of products from of a security that is listed or traded on the authority.16 their booth premises and thus operate Exchange or NYSE Amex or that underlies an Cathy H. Ahn, more efficiently and competitively.5 At NYSE Amex option, or an affiliate of such Deputy Secretary. the time that NYSE Rule 70.40 was issuer; (b) The OTC Security is subject to a [FR Doc. 2011–17691 Filed 7–13–11; 8:45 am] adopted, it included certain conditions corporate action that relates to the issuer of BILLING CODE 8011–01–P and limitations on such trading, a security that is listed or traded on the including that only trading on behalf of Exchange or NYSE Amex or that underlies an customers would be permitted. As such, NYSE Amex option, or an affiliate of such SECURITIES AND EXCHANGE NYSE Rule 70.40(3) prohibits member issuer; COMMISSION organizations approved to operate booth (c) The OTC Security is issued by an issuer premises pursuant to such Rule from of a security that is a component of a narrow- [Release No. 34–64843; File No. SR–NYSE– based security index 8 that is linked to a 2011–22] effecting any transaction from their approved booth premises for their own security that is listed or traded on the account, the account of an associated Exchange or NYSE Amex or that underlies an Self-Regulatory Organizations; New NYSE Amex option; or York Stock Exchange LLC; Order person, or an account with respect to (d) The OTC Security is issued by a foreign Approving a Proposed Rule Change which they or an associated person issuer or is a depositary receipt (or the Amending NYSE Rule 70.40(3) To thereof exercise investment discretion equivalent thereof) for such a security, and a Permit Member Organizations To on the Exchange. security issued by such foreign issuer or a Engage in Proprietary Trading from After more than three years of depositary receipt (or the equivalent thereof) Their Approved Booth Premises in experience with NYSE Rule 70.40, for such a security is listed or traded on the Certain OTC Bulletin Board and OTC member organizations have requested Exchange or NYSE Amex or underlies an NYSE Amex option. Markets Securities that certain types of proprietary trading be permitted under the Rule, and the Under the proposed rule, a corporate July 8, 2011. Exchange has determined that it is action would be any action by an issuer appropriate to do so. Therefore, the I. Introduction of an OTC Security or a security listed Exchange proposes to revise NYSE Rule or traded on the Exchange or NYSE On May 11, 2011, New York Stock 70.40(3) to permit member organizations Amex that causes a relationship Exchange LLC (‘‘NYSE’’ or the to effect transactions in the common, between the price of the OTC Security ‘‘Exchange’’), filed with the Securities preferred, and debt securities of an and the price of the security that is and Exchange Commission operating company that is quoted on the listed or traded on the Exchange or (‘‘Commission’’), pursuant to Section OTC Bulletin Board or OTC Markets (an NYSE Amex or that underlies an NYSE 19(b)(1) of the Securities Exchange Act ‘‘OTC Security’’) from their approved Amex option, such as the 1 of 1934 (‘‘Act’’) and Rule 19b–4 booth premises for their own account, announcement of a merger, acquisition, 2 thereunder, a proposed rule change to the account of an associated person, or joint venture, spinoff, dissolution, amend NYSE Rule 70.40(3) to permit an account with respect to which they bankruptcy filing or other similar type member organizations to engage in or an associated person thereof exercise of event involving the issuers. proprietary trading from their approved investment discretion, except that such The proposed proprietary transactions booth premises in certain OTC Bulletin member organizations could not effect in OTC Securities would remain subject Board (‘‘OTCBB’’) and OTC Markets such transactions in an OTC Security to all of the other provisions of NYSE securities. The proposed rule change that is related to a security listed or Rule 70.40. First, a member organization was published for comment in the traded on the Exchange or NYSE would have to obtain approval from Federal Register on May 25, 2011.3 The Amex.6 Because trading would be NYSE Regulation, Inc. (‘‘NYSER’’) to Commission received no comment limited to the common, preferred, and engage in proprietary OTC Securities letters on the proposed rule change. debt securities of an operating company, trading from booth premises.9 Second, This order approves the proposed rule a member organization could not trade all such transactions would be subject to change. in an index-based or derivative security the regulatory requirements that apply II. Description (e.g., a right or warrant) that is quoted to ‘‘upstairs’’ trading, including on the OTCBB or OTC Markets. registration requirements and audit trail NYSE proposes to amend NYSE Rule Under the proposed rule change, an requirements applicable to those 70.40(3) to permit member organizations OTC Security would be considered markets and supervision requirements to engage in proprietary trading from related to a security listed or traded on under NYSE Rule 342.10 Finally, a their approved booth premises in the Exchange or NYSE Amex 7 if: member organization would be required certain OTCBB and OTC Markets 4 to adopt and implement comprehensive securities. 5 See Securities Exchange Act Release 55908 written procedures governing the In June 2007, the Exchange adopted (June 14, 2007), 72 FR 34056 (June 20, 2007) (SR– conduct and supervision of proprietary NYSE Rule 70.40, which permits a NYSE–2007–51) (notice of filing and immediate effectiveness of proposed rule change permitting trading in OTC Securities handled member organization to operate its member organizations to operate their booth through the booth and the staff booth premises on the Exchange Floor premises as an upstairs office). Under NYSE Rule responsible for such activities; such in a manner similar to its ‘‘upstairs’’ 70.40, only Floor Brokers may conduct activity from office, thereby allowing member booth premises. 6 Since the merger of NYSE and NYSE Amex in trading privileges and thus would be considered a 2008, the exchanges have conducted equity trading security traded on NYSE Amex under the proposed 16 17 CFR 200.30–3(a)(12). from the same Trading Floor, and NYSE Amex has rule change. See Rules 500–525–NYSE Amex 1 15 U.S.C. 78s(b)(1). conducted options trading in rooms adjacent the Equities. 2 17 CFR 240.19b–4. Trading Floor. See Securities Exchange Act Release 8 For purposes of the proposed rule, the definition 3 See Securities Exchange Act Release No. 64522 No. 58673 (September 29, 2008) (SR–Amex–2008– of narrow-based security index would be the same (May 19, 2011); 76 FR 30418 (‘‘Notice’’). 62 and SR–NYSE–2008–60), 73 FR 57707 (October as the definition in Section 3(a)(55) of the Securities 4 The Exchange’s affiliate, NYSE Amex LLC 3, 2008), and NYSE Rule 6A. Exchange Act of 1934 (the ‘‘Act’’). (‘‘NYSE Amex’’), has proposed to adopt the same 7 Securities listed on The NASDAQ Stock Market 9 NYSE Rule 70.40(1). rule. See SR–NYSEAmex–2011–34. are traded on NYSE Amex pursuant to unlisted 10 NYSE Rule 70.40(4) and (5).

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procedures must be reasonably designed with Section 6(b)(5) of the Act,15 which time-sequenced manner, all orders with to ensure that the member organization requires, among other things, that the respect to trading from booth premises would be trading in compliance with Exchange’s rules be designed to prevent and must be able to demonstrate which the requirements of NYSE Rule 70.40, fraudulent and manipulative acts and OTC Security transactions were effected including that it is not effecting practices, to promote just and equitable from the booth premises. Furthermore, transactions from booth premises in principles of trade, to remove as noted above, to the extent that a OTC Securities that are related to impediments to and perfect the member organization has already securities listed or traded on the mechanism of a free and open market obtained approval to operate booth Exchange or NYSE Amex. A member and a national market system, and, in premises under NYSE Rule 70.40, it organization would be required to general, to protect investors and the would still be required to update its obtain NYSER approval of such written public interest. written procedures to address procedures before such trading The Commission notes that the proprietary trading in OTC Securities commences.11 A member organization proposed rule change will enable and obtain NYSER approval under would be required to regularly review member organizations to expand the NYSE Rule 70.40(7).18 such procedures and compliance types of activities that can be conducted In light of the foregoing requirements, therewith, and obtain approval from from booth premises to include which provide for appropriate NYSER of any subsequent changes to transactions in certain OTCBB and OTC limitations on and oversight of such procedures.12 Markets securities for the member proprietary trading by Exchange At a minimum, such written organization’s own account, the account members from their approved booth procedures must require the member of an associated person, or an account premises adjacent to the floor, the organization to exercise due diligence with respect to which they or an Commission finds that the proposed before commencing trading in an OTC associated person thereof exercise rule change is consistent with the Act. investment discretion. At the same time, Security from the booth premises IV. Conclusion pursuant to this Rule to ensure that such the proposal excludes such transactions trading is in compliance with the in an OTC Security that is related to a It Is Therefore Ordered, pursuant to requirements of this Rule and that the security listed or traded on the Section 19(b)(2) of the Act,19 that the member organization has procedures to Exchange or on NYSE Amex. In proposed rule change (SR–NYSE–2011– monitor its trading activity in order to addition, the Commission notes that the 22) be, and it hereby is, approved. remain in compliance. A member proposed proprietary transactions in OTC Securities would remain subject to For the Commission, by the Division of organization must have supervisory Trading and Markets, pursuant to delegated systems in place that produce records the registration, audit trail, and authority.20 supervision requirements of NYSE Rule sufficient to reconstruct, in a time- Cathy H. Ahn, 70.40.16 This includes the requirement sequenced manner, all orders with Deputy Secretary. respect to which the member to adopt and implement comprehensive written procedures governing the [FR Doc. 2011–17689 Filed 7–13–11; 8:45 am] organization is trading from the booth BILLING CODE 8011–01–P premises under this Rule. The member conduct and supervision of proprietary organization must be able to trading in OTC Securities handled through the booth and the staff demonstrate which OTC Security SMALL BUSINESS ADMINISTRATION transactions were effected from the responsible for such activities. These booth premises (as compared to off- procedures must be reasonably designed [Disaster Declaration #12671 and #12672] Floor trading, if applicable). If the to ensure that member organizations are member organization could not not effecting transactions from booth Minnesota Disaster #MN–00031 demonstrate which trading is from the premises in OTC Securities that are related to securities listed or traded on AGENCY: U.S. Small Business booth premises, the Exchange would 17 Administration. presume that all such trading was the Exchange or NYSE Amex. The primary reason for the earlier ACTION: Notice. effected from the booth premises. restriction on proprietary trading by III. Discussion and Commission’s Floor Brokers was concern that the SUMMARY: This is a notice of an Findings Floor Broker’s knowledge of events on Administrative declaration of a disaster the floor and the state of the market for the State of Minnesota dated 07/07/ After careful review, the Commission would provide him with an unfair 2011. finds that the proposed rule change is advantage over off-floor market Incident: Severe Storms and consistent with the requirements of participants. However, in light of the Tornadoes. Section 6 of the Act 13 and the rules and proposed rule’s restriction on trading Incident Period: 05/21/2011 through regulations thereunder applicable to a OTC Securities that are related to a 05/22/2011. national securities exchange.14 In security listed or traded on the Effective Date: 07/07/2011. particular, the Commission finds that Exchange or NYSE Amex, the Physical Loan Application Deadline the proposed rule change is consistent Commission believes that the Date: 09/06/2011. opportunities for members to trade on Economic Injury (EIDL) Loan 11 If a member organization had already obtained Application Deadline Date: 04/09/2012. approval to operate booth premises under NYSE non-public information will be Rule 70.40, it would still be required to update its appropriately minimized or eliminated. ADDRESSES: Submit completed loan written procedures to address proprietary trading in In addition to written procedures, the applications to: U.S. Small Business OTC Securities and obtain NYSER approval under member organization must have a Administration, Processing and NYSE Rule 70.40(7). supervisory system in place to produce Disbursement Center, 14925 Kingsport 12 NYSE Rule 70.40(6) and (7). records sufficient to reconstruct, in a Road, Fort Worth, TX 76155. 13 15 U.S.C. 78f. 14 In approving this proposal, the Commission has considered the proposed rule’s impact on 15 15 U.S.C. 78f(b)(5). 18 See Notice. See also supra note 11. efficiency, competition, and capital formation. See 16 See Notice, supra note 3. 19 15 U.S.C. 78s(b)(2). 15 U.S.C. 78c(f). 17 See id. 20 17 CFR 200.30–3(a)(12).

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FOR FURTHER INFORMATION CONTACT: A. disaster for the State of Oklahoma ADDRESSES: Submit completed loan Escobar, Office of Disaster Assistance, (FEMA–1989–DR), dated 06/06/2011. applications to: U.S. Small Business U.S. Small Business Administration, Incident: Severe Storms, Tornadoes, Administration, Processing and 409 3rd Street, SW., Suite 6050, Straight-line Winds, and Flooding. Disbursement Center, 14925 Kingsport Washington, DC 20416. Incident Period: 05/22/2011 through Road, Fort Worth, TX 76155. SUPPLEMENTARY INFORMATION: Notice is 05/25/2011. FOR FURTHER INFORMATION CONTACT: A. hereby given that as a result of the Effective Date: 07/06/2011. Escobar, Office of Disaster Assistance, Administrator’s disaster declaration, Physical Loan Application Deadline U.S. Small Business Administration, applications for disaster loans may be Date: 08/05/2011. 409 3rd Street, SW., Suite 6050, EIDL Loan Application Deadline Date: filed at the address listed above or other Washington, DC 20416. 03/06/2012. locally announced locations. SUPPLEMENTARY INFORMATION: The notice ADDRESSES: Submit completed loan The following areas have been of the President’s major disaster applications to: U.S. Small Business determined to be adversely affected by declaration for Private Non-Profit Administration, Processing and the disaster: organizations in the State of Arkansas, Disbursement Center, 14925 Kingsport Primary Counties: Hennepin. dated 05/02/2011, is hereby amended to Road, Fort Worth, TX 76155. Contiguous Counties: include the following areas as adversely Minnesota: FOR FURTHER INFORMATION CONTACT: A. affected by the disaster. Escobar, Office of Disaster Assistance, Anoka, Carver, Dakota, Ramsey, Scott, Primary Counties: Craighead. Sherburne, Wright. U.S. Small Business Administration, All other information in the original The Interest Rates are: 409 3rd Street, SW., Suite 6050, Washington, DC 20416. declaration remains unchanged. Percent SUPPLEMENTARY INFORMATION: The notice (Catalog of Federal Domestic Assistance of the Presidential disaster declaration Numbers 59002 and 59008) For Physical Damage: for the State of Oklahoma, dated 06/06/ Homeowners with Credit Avail- James E. Rivera, 2011 is hereby amended to include the Associate Administrator for Disaster able Elsewhere ...... 5.375 following areas as adversely affected by Homeowners without Credit Assistance. Available Elsewhere ...... 2.688 the disaster: [FR Doc. 2011–17728 Filed 7–13–11; 8:45 am] Businesses with Credit Avail- Primary Counties: (Physical Damage and BILLING CODE 8025–01–P able Elsewhere ...... 6.000 Economic Injury Loans): Businesses without Credit Ottawa. Available Elsewhere ...... 4.000 Contiguous Counties: (Economic Injury SMALL BUSINESS ADMINISTRATION Non-Profit Organizations with Loans Only): Credit Available Elsewhere ... 3.250 Kansas: Cherokee. Advisory Committee on Veterans Non-Profit Organizations with- Missouri: Newton. Business Affairs out Credit Available Else- where ...... 3.000 All other information in the original declaration remains unchanged. AGENCY: U.S. Small Business For Economic Injury: Administration. Businesses & Small Agricultural (Catalog of Federal Domestic Assistance ACTION: Cooperatives without Credit Numbers 59002 and 59008) Notice of open Federal Advisory Available Elsewhere ...... 4.000 Committee Meeting. Non-Profit Organizations with- James E. Rivera, out Credit Available Else- Associate Administrator for Disaster SUMMARY: The SBA is issuing this notice where ...... 3.000 Assistance. to announce the location, date, time, [FR Doc. 2011–17727 Filed 7–13–11; 8:45 am] and agenda for the next meeting of the The number assigned to this disaster BILLING CODE 8025–01–P Advisory Committee on Veterans for physical damage is 12671 C and for Business Affairs. The meeting will be economic injury is 12672 0. open to the public. The State which received an EIDL SMALL BUSINESS ADMINISTRATION DATES: July 28, 2011 from 9 a.m. to 5 Declaration # is Minnesota. p.m. in the Eisenhower Conference [Disaster Declaration #12562 and #12563] (Catalog of Federal Domestic Assistance room, side B, located on the 2nd floor. Numbers 59002 and 59008) Arkansas Disaster Number AR–00049 ADDRESSES: U.S. Small Business July 7, 2011. Administration, 409 3rd Street, SW., AGENCY: U.S. Small Business Washington, DC 20416. Karen G. Mills, Administration. SUPPLEMENTARY INFORMATION: Pursuant Administrator. ACTION: Amendment 7. [FR Doc. 2011–17726 Filed 7–13–11; 8:45 am] to section 10(a)(2) of the Federal Advisory Committee Act (5 U.S.C., BILLING CODE 8025–01–P SUMMARY: This is an amendment of the Presidential declaration of a major Appendix 2), SBA announces the disaster for Public Assistance Only for meeting of the Advisory Committee on SMALL BUSINESS ADMINISTRATION the State of Arkansas (FEMA–1975–DR), Veterans Business Affairs. The Advisory dated 05/02/2011. Committee on Veterans Business Affairs [Disaster Declaration #12615 and #12616] Incident: Severe Storms, Tornadoes, serves as an independent source of advice and policy recommendation to Oklahoma Disaster Number OK–00050 and Associated Flooding. Incident Period: 04/14/2011 through the Administrator of the U.S. Small AGENCY: U.S. Small Business 06/03/2011. Business Administration. The purpose Administration. Effective Date: 07/01/2011. of this meeting is to begin preparations ACTION: Amendment 2. Physical Loan Application Deadline for the 2011 Annual Report. For Date: 07/01/2011. information regarding our veterans’ SUMMARY: This is an amendment of the Economic Injury (EIDL) Loan resources and partners, please visit our Presidential declaration of a major Application Deadline Date: 02/02/2012. Web site at http://www.sba.gov/vets.

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FOR FURTHER INFORMATION CONTACT: The Nebraska Department of Roads (NDOR), 15.8 in the County of San Diego, State meeting is open to the public. Anyone is rescinding the NOI and DEIS for a of California. Those actions grant wishing to attend this meeting or to proposal to improve N–35 between licenses, permits, and approvals for the make a presentation to the Advisory Norfolk and South Sioux City in project. Committee on Veterans Business Madison, Stanton, Wayne, Dixon, and DATES: By this notice, the FHWA, on Affairs, advance notice is requested. Dakota Counties in Nebraska. The behalf of Caltrans, is advising the public Please contact Cheryl Simms, Program previous proposed action, described in of final agency actions subject to 23 Liaison, at the U.S. Small Business the 2008 DEIS, was to upgrade the U.S.C. 139(l)(1). A claim seeking Administration, Office of Veterans existing two lane, 70 mile rural highway judicial review of the Federal agency Business Development, 409 3rd Street, to a four lane divided highway on actions on the highway project will be SW., Washington, DC 20416; Telephone partially new alignment. The NOI is barred unless the claim is filed on or number: (202) 619–1697; Fax number being rescinded in large part due to before January 10, 2012. If the Federal (202) 481–6085 or by e-mail at funding constraints, which led to a law that authorizes judicial review of a [email protected]. reduction of scope to focus on the more claim provides a time period of less If you require accommodations imminent N–35 needs within the than 180 days for filing such claim, then because of a disability, please contact Norfolk area only. The current proposed that shorter time period still applies. the Office of Veterans Business actions would improve the capacity of Development at (202) 205–6773 at least N–35 within Norfolk, from the junction FOR FURTHER INFORMATION CONTACT: two weeks in advance. of N–35 with US 275 to Nucor Road, David Nagy, Environmental Branch Chief, Division of Environmental Dated: July 1, 2011. and would improve the intersection of N–35 with Norfolk Avenue and Victory Analysis, Caltrans, District 11, 4050 Dan S. Jones, Taylor St., San Diego, CA 91942, Office: SBA Committee Management Officer. Road. NDOR will be holding a public meeting to solicit community input on 619–688–0224, e-mail: [FR Doc. 2011–17327 Filed 7–13–11; 8:45 am] the new proposal, which will be [email protected]. BILLING CODE 8025–01–M advertised through the local media. SUPPLEMENTARY INFORMATION: Effective Given the reduction in scope and the July 1, 2007, the FHWA assigned, and associated potential impacts of the DEPARTMENT OF TRANSPORTATION Caltrans assumed environmental proposed action, FHWA intends to responsibilities for this project pursuant prepare a lower-level NEPA document Federal Highway Administration to 23 U.S.C. 327. Notice is hereby given to determine if the project has the that Caltrans, has taken final agency Notice To Rescind a Notice of Intent potential to significantly affect the actions subject to 23 U.S.C. 139(l)(1) by and Draft Environmental Impact quality of the human environment. If, at issuing licenses, permits, and approvals Statement: Highway 35, Between a future time, FHWA determines that for the following highway project in the Norfolk and South Sioux City, NE the proposed action is likely to have a State of California: The addition of four significant impact on the environment, managed lanes and HOV/transit lanes AGENCY: Federal Highway a new NOI to prepare an EIS will be and associated multi-modal facilities Administration (FHWA), DOT. published. (two in each direction) on Interstate 805 ACTION: Notice to rescind a Notice of Authority: 23 U.S.C. 315; 49 CFR 1.48. (I–805) from just south of East Palomar Intent and Draft Environmental Impact Street overcrossing in the City of Chula Statement. Dated: July 8, 2011. Joseph A. Werning, Vista to the Landis Street overcrossing SUMMARY: The FHWA is issuing this Division Administrator, Nebraska. in the City of San Diego. The actions by the Federal agencies, notice to advise the public that we are [FR Doc. 2011–17709 Filed 7–13–11; 8:45 am] and the laws under which such actions rescinding the Notice of Intent (NOI) BILLING CODE 4910–22–P and Draft Environmental Impact were taken, are described in the Final Statement (DEIS) for improvements that Environmental Assessment (EA) for the were proposed for the Highway 35 DEPARTMENT OF TRANSPORTATION project, approved on June 22, 2011 in Corridor from Norfolk to South Sioux the FHWA Finding of No Significant City (N35) in Nebraska [DPS–35– Federal Highway Administration Impacts (FONSI) issued on June 15, 4(119)]. The NOI was published in the 2011, and in other documents in the Federal Register on March 4, 2002, and Notice of Final Federal Agency Actions FHWA project records. The the DEIS availability was published in on Proposed Highway in California Environmental Impact Report & EA/ the Federal Register on January 11, AGENCY: Federal Highway FONSI, and other project records are 2008. This rescission is based on a lack Administration (FHWA), DOT. available by contacting Caltrans at the of available funding for the full corridor addresses provided above. The Caltrans ACTION: Notice of Limitation on Claims proposal, which led to a reduction in Final EA and FONSI can be viewed and for Judicial Review of Actions by the scope to focus on the area of more downloaded from the project Web site at California Department of Transportation defined need within the Norfolk area. http://www.dot.ca.gov/dist11/. The (Caltrans), pursuant to 23 U.S.C. 327, The reduction in scope has brought the USFWS decision is available within the the United States Fish and Wildlife proposed action below the threshold of environmental document at the above Service (USFWS), and the United States an EIS. Web site as an appendix. Pending Army Corps of Engineers (USACOE). FOR FURTHER INFORMATION CONTACT: federal actions include: Melissa Maiefski, Program Delivery SUMMARY: The FHWA, on behalf of • 401 Water Quality Certification Team Lead, FHWA, Nebraska Division, Caltrans, is issuing this notice to from the Regional Water Quality Control 100 Centennial Mall North, Room 220, announce actions taken by Caltrans, that Board, under Section 401 of the Clean Lincoln, Nebraska 68508, Telephone: are final within the meaning of 23 Water Act. (402) 742–8473. U.S.C. 139(l)(1). The actions relate to a • 404 Permit to Discharge Dredged or SUPPLEMENTARY INFORMATION: The proposed highway project along Fill Material, under Section 404 of the FHWA, in cooperation with the Interstate 805, San Diego, CA, PM: 4.4– Clean Water Act.

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This notice applies to all Federal SUMMARY: The Federal Railroad 20590, (telephone 202 493–6067), or by agency decisions as of the issuance date Administration announces the e-mail at [email protected] with of this notice and all laws under which availability of the Tupelo, Mississippi ‘‘Tupelo Railroad Relocation Project’’ in such actions were taken, including but Railroad Relocation Project Draft the subject heading. not limited to: Environmental Impact Statement (DEIS) SUPPLEMENTARY INFORMATION: The DEIS 1. Council on Environmental Quality for public review and comment. was prepared pursuant to the National regulations; DATES: FRA invites interested Members Environmental Policy Act of 1969 2. National Environmental Policy Act of Congress, state and local (NEPA), as amended, 42 U.S.C. 4321 et (NEPA); governments, other Federal agencies, seq., the Council on Environmental 3. Safe, Accountable, Flexible, Native American tribal governments, Quality NEPA implementing Efficient Transportation Equity Act: A organizations, and members of the regulations, 40 CFR Parts 1500–1508, Legacy for Users (SAFETEA–LU); public to provide comments on the and the FRA NEPA procedures, 64 FR 4. Department of Transportation Act DEIS. The public comment period began 28545 (May 26, 1999). FRA is the lead of 1966; with EPA’s publication of the NOA on Federal agency and the Mississippi 5. Federal Aid Highway Act of 1970; June 24, 2011. Because of the Department of Transportation (MDOT) 6. Clean Air Act Amendments of anticipated interest in the Project, the is the lead State agency. The 1990; comment period will continue until Environmental Protection Agency (EPA) 7. Clean Water Act of 1977 and 1987; September 12, 2011. Written and oral included the DEIS in the Notice of 8. Endangered Species Act of 1973; comments will be given equal weight, Availability (NOA) published on June 9. Migratory Bird Treaty Act; and FRA and MDOT will consider all 24, 2011. 10. Title VI of the Civil Rights Act of comments received or postmarked by The DEIS evaluates the environmental 1964; that date in preparing the Final EIS. impacts of the Tupelo, Mississippi 11. Uniform Relocation Assistance Comments received or postmarked after Railroad Relocation Project, through and Real Property Acquisition Act of that date will be considered to the which MDOT proposes to relocate an 1970; extent practicable. existing BNSF Railway Company 12. National Historic Preservation Act The public hearing on the DEIS will (BNSF) main line. Currently, the BNSF of 1966; be held on Thursday, August 11, 2011, line runs at grade and through several 13. Historic Sites Act of 1935; from 4 to 7 p.m. at the BancorpSouth busy intersections in the City of Tupelo. 14. Executive Order 11990, Protection Arena located at 375 East Main Street, The purpose of the Project is to improve of Wetlands Tupelo, Mississippi 38804. The hearing mobility and safety by reducing 15. Executive Order 13112, Invasive will be held in meeting rooms 3, 4 and roadway congestion caused by the Species; 5 and attendees are encouraged to park operation of BNSF trains through the 16. Executive Order 11988, on the west side of the building as that City, particularly at the intersection of Floodplain Management; and, is more convenient to the meeting Main Street (US 278/MS 6) and Gloster 17. Executive Order 12898, rooms. Street (MS 145). The build alternatives Environmental Justice. ADDRESSES: Comments may be considered included operational (Catalog of Federal Domestic Assistance submitted at the public hearings both improvements, alternative corridors, Program Number 20.205, Highway Planning verbally and in writing. Written and in-town options such as railroad and Construction. The regulations comments may be submitted until and highway grade separations. implementing Executive Order 12372 September 12, 2011. Comment sheets Through the alternatives development regarding intergovernmental consultation on are available on the project Web site at process, an elevated rail viaduct with a Federal programs and activities apply to this http://www.gomdot.com/Home/Projects/ program.) relocated interchange yard was Studies/Northern/ considered to be the only reasonable Authority: 23 U.S.C. 139(l)(1). TupeloRailroadRelocation/Home.aspx. build alternative and, therefore, was Issued on: July 7, 2011. The comment sheets may be submitted brought forward for detailed study. Maiser Khaled, by FAX to 601–359–7355 or mailed to Potential environmental impacts of MDOT at Mississippi Department of the No-Build Alternative include noise, Acting Director, State Programs, Federal Transportation, Environmental Division Highway Administration, Sacramento, safety and mobility impacts, while the California. (87–01), P.O. Box 1850, Jackson, MS primary impacts of the Build 39215–9947. Comments may also be [FR Doc. 2011–17702 Filed 7–13–11; 8:45 am] Alternative include high construction submitted by e-mail at http:// BILLING CODE 4910–RY–P costs, and impacts to farmlands, cultural www.gomdot.com/Home/AboutMDOT/ and historic resources, streams, EmailUs.aspx?Topic=Environmental. floodplains and utilities. Mitigation DEPARTMENT OF TRANSPORTATION FOR FURTHER INFORMATION CONTACT: For strategies are described to avoid or further information regarding the DEIS minimize potential impacts. Such Federal Railroad Administration or the Project, please contact: Ms. Kim strategies would be further refined in Thurman, Environmental Division subsequent environmental review. Tupelo, Mississippi Railroad Manager, Mississippi Department of Availability of the DEIS Relocation Project Transportation, P.O. Box 1850, Jackson, MDOT has placed copies of the Draft AGENCY: Federal Railroad MS 39215 (telephone 601 359–7920); or EIS and appendices at the following Administration (FRA), U.S. Department by e-mail at locations: of Transportation (DOT). [email protected] with ‘‘Tupelo Railroad Relocation Project’’ in Tupelo City Hall, 71 East Troy Street, ACTION: Notice of Availability of the the subject heading, or Mr. John Winkle, Tupelo, MS 38804. Draft Environmental Impact Statement Transportation Industry Analyst, Office Lee County Public Library, 219 N. and public hearing for the Tupelo, of Passenger Programs, Federal Railroad Madison Street, Tupelo, MS 38801. Mississippi Railroad Relocation Project Administration, 1200 New Jersey Ave., Lee County Chancery Clerk, 200 W. (Project). SE., Room W38–311, Washington, DC Jefferson Street, Tupelo, MS 38804.

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Mississippi Department of trains and engines between CP Bloom at online at http://www.dot.gov/ Transportation, Environmental MP–PT 351.6 near Pittsburg, PA and CP privacy.html. Division, 401 North West Street, Solomon. Issued in Washington, DC on July 7, 2011. • Operations on the Fort Wayne Line, Jackson, MS 39201. Robert C. Lauby, Mississippi Department of Pittsburgh Division from CP Rochester at MP–PC 29.5, near East Rochester, PA Deputy Associate Administrator for Transportation, First District Regulatory & Legislative Operations. Headquarters, 1901 N. Gloster Street, to CP Alliance at MP–PC 83.2. Tupelo, MS 38803. • Operations on the Conemaugh Line, [FR Doc. 2011–17681 Filed 7–13–11; 8:45 am] Federal Railroad Administration, Region Pittsburgh Division from CP Conpit at BILLING CODE 4910–06–P 3, 61 Forsyth Street—Suite 16T20, MP–LC 0.0, near Bolivar, PA to CP Kiski at MP–LC 47.8, near Freeport, PA. Atlanta, GA 30303–3104. DEPARTMENT OF TRANSPORTATION In addition, electronic versions of the A copy of the petition, as well as any Draft EIS and appendices are available written communications concerning the Federal Railroad Administration through FRA’s Web site at http:// petition, is available for review online at www.fra.dot.gov/rpd/freight/3002.shtml http://www.regulations.gov and in [Docket Number FRA–2009–0052] person at the Department of and the MDOT Web site at http:// Petition for Waiver of Compliance www.gomdot.com/Home/Projects/ Transportation’s Docket Operations Studies/Northern/ Facility, 1200 New Jersey Ave., SE., In accordance with Part 211 of Title TupeloRailroadRelocation/Home.aspx. W12–140, Washington, DC 20590. The 49 of the Code of Federal Regulations Docket Operations Facility is open from (CFR), this document provides the Issued in Washington, DC, on July 8, 2011. 9 a.m. to 5 p.m., Monday through Mark E. Yachmetz, public notice that by a document dated Friday, except Federal Holidays. June 3, 2011, the Norfolk Southern Associate Administrator for Railroad Policy Interested parties are invited to Corporation (NS) has petitioned the & Development. participate in these proceedings by Federal Railroad Administration (FRA) [FR Doc. 2011–17684 Filed 7–13–11; 8:45 am] submitting written views, data, or for an extension of the relief previously BILLING CODE 4910–06–P comments. FRA does not anticipate granted under Docket Number FRA– scheduling a public hearing in 2009–0052. The original request granted connection with these proceedings since conditional approval on September 29, DEPARTMENT OF TRANSPORTATION the facts do not appear to warrant a 2009, for relief from requirements of the hearing. If any interested party desires Rules, Standards and Instructions, Title Federal Railroad Administration an opportunity for oral comment, they 49 CFR Part 236, 236.586—Daily or after should notify FRA, in writing, before [Docket Number FRA–2011–0052] trip test. the end of the comment period and NS requested a waiver from Petition for Waiver of Compliance specify the basis for their request. All communications concerning these compliance with § 236.586 Daily or after In accordance with Part 211 of Title proceedings should identify the trip test in its entirety for locomotives 49 of the Code of Federal Regulations appropriate docket number and may be equipped with UltraCab equipment. (CFR), this document provides the submitted by any of the following Applicant’s justification for the public notice that by a document dated methods: extension: Over the past 19 months, NS June 14, 2011, the Norfolk Southern • Web site: http:// has not seen any notable increase or Railway Corporation (NS) has petitioned www.regulations.gov. Follow the online decrease in locomotive shoppings as a the Federal Railroad Administration instructions for submitting comments. result of not performing a daily or after- (FRA) for a waiver of compliance from • Fax: 202–493–2251. trip test while operating locomotives in certain provisions of the Federal • Mail: Docket Operations Facility, cab signal territory. railroad safety regulations contained at U.S. Department of Transportation, 1200 NS further request that they be 49 CFR Part 236. FRA assigned the New Jersey Avenue, SE., W12–140, allowed to conduct the currently petition Docket Number FRA–2011– Washington, DC 20590. required quarterly performance review 0052. • Hand Delivery: 1200 New Jersey on a semi-annual basis, with all other NS seeks a waiver from compliance Avenue, SE., Room W12–140, conditions of the September 29, 2009, with cab signal system requirements Washington, DC 20590, between 9 a.m. letter to be abided with. found in 49 CFR 236.566 Locomotive of and 5 p.m., Monday through Friday, A copy of the petition, as well as any each train operating in train stop, train except Federal Holidays. written communications concerning the control, or cab signal territory; Communications received by August petition, is available for review online at equipped. Specifically, NS seeks relief 29, 2011 will be considered by FRA http://www.regulations.gov and in to operate non-equipped locomotives in before final action is taken. Comments person at the Department of the following locations: received after that date will be Transportation’s Docket Operations • Operations on the Pittsburgh Line, considered as far as practicable. Facility, 1200 New Jersey Ave., SE., Harrisburg Division from control point Anyone is able to search the W12–140, Washington, DC 20590. The (CP) Cannon at milepost (MP)–PT 118.9 electronic form of any written Docket Operations Facility is open from near Duncannon, Pennsylvania to CP communications and comments 9 a.m. to 5 p.m., Monday through Harrisburg at MP–PT 105.1 near received into any of our dockets by the Friday, except Federal Holidays. Harrisburg, PA. name of the individual submitting the Interested parties are invited to • Operations on the Pittsburgh Line, comment (or signing the comment, if participate in these proceedings by Pittsburgh Division from CP Cannon at submitted on behalf of an association, submitting written views, data, or MP–PT 118.9 near Duncannon, PA to business, labor union, etc.). You may comments. FRA does not anticipate CP Solomon at MP–PT 352.5 near review DOT’s complete Privacy Act scheduling a public hearing in Pittsburgh, PA, with the condition that Statement in the Federal Register connection with these proceedings since an absolute block be established in published on April 11, 2000 (Volume the facts do not appear to warrant a advance of each movement of foreign 65, Number 70; Pages 19477–78) or hearing. If any interested party desires

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an opportunity for oral comment, they granted because the agency has the codes do not match, the engine will should notify FRA, in writing, before determined that the antitheft device to be disabled. Mazda also stated that it is the end of the comment period and be placed on the line as standard very difficult to defeat this type of specify the basis for their request. equipment is likely to be as effective in electronic engine immobilizer device All communications concerning these reducing and deterring motor vehicle because there are no moving parts and proceedings should identify the theft as compliance with the parts there is a separate battery located in the appropriate docket number and may be marking requirements of the Theft key. Additionally, Mazda stated that the submitted by any of the following Prevention Standard (49 CFR Part 541). immobilizer device will incorporate a methods: DATES: The exemption granted by this LED indicator that will provide • Web site: http:// notice is effective beginning with the information about the ‘‘set’’ and ‘‘unset’’ www.regulations.gov. Follow the online 2013 model year. condition of the device. Mazda stated instructions for submitting comments. FOR FURTHER INFORMATION CONTACT: Ms. that when the ignition is turned to the • Fax: 202–493–2251. ‘‘ON’’ position, the LED illuminates • Carlita Ballard, Office of International Mail: Docket Operations Facility, Policy, Fuel Economy and Consumer continuously for 3 seconds to indicate U.S. Department of Transportation, 1200 Programs, NHTSA, West Building, the ‘‘unset’’ state of the device and New Jersey Avenue, SE., W12–140, W43–439, 1200 New Jersey Avenue, SE., when the ignition is in the ‘‘OFF’’ Washington, DC 20590. Washington, DC 20590. Ms. Ballard’s position, the flashing LED indicates the • Hand Delivery: 1200 New Jersey telephone number is (202) 366–5222. ‘‘set’’ state of the device confirming that Avenue, SE., Room W12–140, Her fax number is (202) 493–2990. the vehicle is protected by the Washington, DC 20590, between 9 a.m. immobilizer. Mazda’s submission is SUPPLEMENTARY INFORMATION: and 5 p.m., Monday through Friday, In a considered a complete petition as except Federal Holidays. petition dated April 7, 2011, Mazda required by 49 CFR 543.7, in that it Communications received by August requested an exemption from the parts- meets the general requirements 29, 2011 will be considered by FRA marking requirements of the Theft contained in § 543.5 and the specific before final action is taken. Comments Prevention Standard (49 CFR Part 541) content requirements of § 543.6. received after that date will be for its MY 2013 CX–5 vehicle line. In addressing the specific content considered as far as practicable. The petition requested an exemption requirements of § 543.5, Mazda Anyone is able to search the from parts-marking pursuant to 49 CFR provided a detailed list of the tests electronic form of any written Part 543, Exemption from Vehicle Theft conducted and believes that the device communications and comments Prevention Standard, based on the is reliable and durable since the device received into any of our dockets by the installation of an antitheft device as complied with its specified name of the individual submitting the standard equipment for the entire requirements for each test. Specifically, comment (or signing the comment, if vehicle line. Mazda stated that the components of the Under § 543.5(a), a manufacturer may submitted on behalf of an association, immobilization device were tested in petition NHTSA to grant exemptions for business, labor union, etc.). You may climatic, mechanical and chemical one vehicle line per model year. In its review DOT’s complete Privacy Act environments, and for its immunity to petition, Mazda provided a detailed Statement in the Federal Register various electromagnetic radiation and description and diagram of the identity, published on April 11, 2000 (Volume electric conduction. Mazda stated that design, and location of the components 65, Number 70; Pages 19477–78) or the antitheft device and operation of the of the antitheft device for the new online at http://www.dot.gov/ electronic engine immobilizer system vehicle line. Mazda will install a privacy.html. makes conventional theft methods passive transponder-based, electronic ineffective, (i.e., hot-wiring and Issued in Washington, D.C. on July 7, 2011. immobilizer antitheft device as standard attacking the ignition lock cylinder). Robert C. Lauby, equipment on its CX–5 vehicle line Mazda also stated that there is no way Deputy Associate Administrator for beginning with MY 2013. Major to start the vehicle by mechanically Regulatory & Legislative Operations. components of the antitheft device will overriding the device and that [FR Doc. 2011–17680 Filed 7–13–11; 8:45 am] include a powertrain control module, an successful key duplication would be BILLING CODE 4910–06–P immobilizer control module, a security virtually impossible. light, coil antenna, transmitter with Mazda provided data on the transponder, LF antenna and a FR effectiveness of other similar antitheft DEPARTMENT OF TRANSPORTATION receiver. The device will not provide devices installed on vehicle lines in any visible or audible indication of support of its belief that its device will National Highway Traffic Safety unauthorized vehicle entry (i.e., flashing be at least as effective as those Administration lights or horn alarm). comparable devices. Specifically, Mazda Mazda stated that activation of the Petition for Exemption From the stated that this device was installed on immobilization device occurs when the Vehicle Theft Prevention Standard; certain MY 1996 Ford vehicles as ignition is turned to the ‘‘OFF’’ position Mazda standard equipment, (i.e., all Ford and since the transponder is integrated Mustang GT, Cobra, Taurus LX, SHO AGENCY: National Highway Traffic into the immobilizer device, any and Sable LS models). In MY 1997, Safety Administration (NHTSA) inadvertent activation of the device is Mazda installed its immobilizer device Department of Transportation (DOT). prevented. Additionally, Mazda stated on the entire Ford Mustang vehicle line ACTION: Grant of petition for exemption. that when the ignition is turned to the as standard equipment. When ‘‘ON’’ position, a code is transmitted comparing 1995 model year Mustang SUMMARY: This document grants in full from the transponder to the immobilizer vehicle thefts (without immobilizers) the Mazda Motor Corporation (Mazda) control module. Mazda further stated with MY 1997 Mustangs vehicle thefts petition for an exemption of the CX–5 that if the code from the transponder (with immobilizers), Mazda referenced vehicle line in accordance with 49 CFR matches with the code programmed in the National Crime Information Center‘s Part 543, Exemption from the Theft the immobilizer control unit, the (NCIC) theft information which showed Prevention Standard. This petition is vehicle’s engine can be started, and if that there was a 70% reduction in theft

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experienced when comparing MY 1997 year. 49 CFR 543.7(f) contains DEPARTMENT OF TRANSPORTATION Mustang vehicle thefts (with publication requirements incident to the immobilizers) to MY 1995 Mustang disposition of all part 543 petitions. Surface Transportation Board vehicle thefts (without immobilizers). Advanced listing, including the release [Docket No. AB 6 (Sub-No. 474X)] Mazda also stated that the Highway Loss of future product nameplates, the Data Institute’s (HLDI) September 1997 beginning model year for which the BNSF Railway Company— Theft Loss Bulletin reported an overall petition is granted and a general Abandonment Exemption—in theft loss decrease of approximately description of the antitheft device is Washington County, MN 50% for both the Ford Mustang and necessary in order to notify law Taurus models upon installation of an BNSF Railway Company (BNSF) filed enforcement agencies of new vehicle antitheft immobilization device. a verified notice of exemption under 49 lines exempted from the parts-marking Additionally, Mazda referenced a July CFR Part 1152 subpart F—Exempt 2000 International Institute for Highway requirements of the Theft Prevention Abandonments to abandon a 0.51-mile Safety news release which reported that Standard. line of railroad between milepost 15.59 when comparing theft loss data before If Mazda decides not to use the and milepost 16.10 in Washington and after equipping vehicles with exemption for this line, it must formally County, MN.1 The line traverses United passive immobilizer devices, the data notify the agency. If such a decision is States Postal Service Zip Code 55038. showed an average theft reduction of made, the line must be fully marked BNSF has certified that: (1) No local approximately 50% for vehicles with according to the requirements under 49 traffic has moved over the line for at immobilizer devices. CFR 541.5 and 541.6 (marking of major least 2 years; (2) no overhead traffic has Based on the supporting evidence component parts and replacement been handled on the line for at least 2 submitted by Mazda, the agency parts). years; (3) no formal complaint filed by believes that the antitheft device for the a user of rail service on the line (or by Mazda CX–5 vehicle line is likely to be NHTSA notes that if Mazda wishes in a state or local government entity acting as effective in reducing and deterring the future to modify the device on on behalf of such user) regarding motor vehicle theft as compliance with which this exemption is based, the cessation of service over the line either the parts-marking requirements of the company may have to submit a petition is pending with the Surface Theft Prevention Standard (49 CFR part to modify the exemption. Transportation Board (Board) or with 541). Part 543.7(d) states that a part 543 any U.S. District Court or has been The agency also notes that the device exemption applies only to vehicles that decided in favor of complainant within will provide four of the five types of belong to a line exempted under this the 2-year period. As provided under 49 performance listed in § 543.6(a)(3): part and equipped with the anti-theft CFR 1105.11, BNSF has certified that it promoting activation; preventing defeat device on which the line’s exemption is served its Environmental and Historic or circumvention of the device by Reports as required under 49 CFR unauthorized persons; preventing based. Further, § 543.9(c)(2) provides for the submission of petitions ‘‘to modify 1105.7 and 1105.8. BNSF also has operation of the vehicle by certified that the requirements at 49 CFR an exemption to permit the use of an unauthorized entrants; and ensuring the 1105.12 (newspaper publication) and 49 antitheft device similar to but differing reliability and durability of the device. CFR 1152.50(d)(1) (notice to Pursuant to 49 U.S.C. 33106 and 49 from the one specified in that governmental agencies) have been met. CFR 543.7(b), the agency grants a exemption.’’ As a condition to this exemption, any petition for exemption from the parts- The agency wishes to minimize the employee adversely affected by the marking requirements of part 541 either administrative burden that § 543.9(c)(2) abandonment shall be protected under in whole or in part, if it determines that, could place on exempted vehicle Oregon Short Line Railroad— based upon substantial evidence, the manufacturers and itself. The agency Abandonment Portion Goshen Branch standard equipment antitheft device is did not intend in drafting part 543 to Between Firth & Ammon, in Bingham & likely to be as effective in reducing and require the submission of a modification Bonneville Counties, Idaho, 360 I.C.C. deterring motor vehicle theft as petition for every change to the 91 (1979). To address whether this compliance with the parts-marking condition adequately protects affected requirements of part 541. The agency components or design of an antitheft device. The significance of many such employees, a petition for partial finds that Mazda has provided adequate revocation under 49 U.S.C. 10502(d) reasons for its belief that the antitheft changes could be de minimis. Therefore, NHTSA suggests that if the must be filed. device for its new vehicle line is likely All interested persons should be to be as effective in reducing and manufacturer contemplates making any changes, the effects of which might be aware that, following abandonment of deterring motor vehicle theft as rail service and salvage of the line, the characterized as de minimis, it should compliance with the parts-marking line may be suitable for other public consult the agency before preparing and requirements of the Theft Prevention use, including interim trail use. Standard (49 CFR part 541). This submitting a petition to modify. Provided no formal expression of intent conclusion is based on the information Authority: 49 U.S.C. 33106; delegation of to file an offer of financial assistance Mazda provided about its device. authority at 49 CFR 1.50. (OFA) has been received, this For the foregoing reasons, the agency Issued on: July 8, 2011. exemption will be effective on August hereby grants in full Mazda’s petition 13, 2011, unless stayed pending for exemption for the Mazda CX–5 Christopher J. Bonanti, vehicle line from the parts-marking Associate Administrator for Rulemaking. 1 This transaction is related to a concurrently requirements of 49 CFR part 541, [FR Doc. 2011–17715 Filed 7–13–11; 8:45 am] filed notice of exemption in Docket No. AB 882 (Sub-No. 3X), Minnesota Commercial Railway beginning with MY 2013 vehicles. The BILLING CODE 4910–59–P agency notes that 49 CFR part 541, Company—Discontinuance of Service Exemption— in Washington County, Minnesota, in which Appendix A–1, identifies those lines Minnesota Commercial Railway Company seeks an that are exempted from the Theft exemption to discontinue its lease operations over Prevention Standard for a given model the same 0.51-mile rail line.

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reconsideration. Petitions to stay that do Board decisions and notices are Railroad —Abandonment Portion not involve environmental issues,2 available on our Web site at HTTP:// Goshen Branch Between Firth & formal expressions of intent to file an WWW.STB.DOT.GOV. Ammon, in Bingham & Bonneville 3 OFA under 49 CFR 1152.27(c)(2), and Decided: July 11, 2011. Counties, Idaho, 360 I.C.C. 91 (1979). To trail use/rail banking requests under 49 address whether this condition By the Board. CFR 1152.29 must be filed by July 25, adequately protects affected employees, 2011. Petitions to reopen or requests for Rachel D. Campbell, a petition for partial revocation under public use conditions under 49 CFR Director, Office of Proceedings. 49 U.S.C. 10502(d) must be filed. 1152.28 must be filed by August 3, Andrea Pope-Matheson, Provided no formal expression of 2011, with the Surface Transportation Clearance Clerk. intent to file an offer of financial Board, 395 E Street, SW., Washington, [FR Doc. 2011–17713 Filed 7–13–11; 8:45 am] assistance (OFA) has been received, this DC 20423–0001. BILLING CODE 4915–01–P exemption will be effective on August A copy of any petition filed with the 13, 2011, unless stayed pending Board should be sent to BNSF’s reconsideration. Petitions to stay that do representative: Courtney Biery Estes, DEPARTMENT OF TRANSPORTATION not involve environmental issues and formal expressions of intent to file an General Attorney, BNSF Railway Surface Transportation Board Company, 2500 Lou Menk Drive, AOB– OFA for continued rail service under 49 3, Fort Worth, TX 76131. [Docket No. AB 882 (Sub–No. 3X)] CFR 1152.27(c)(2) 3 must be filed by July 25, 2011.4 Petitions to reopen must be If the verified notice contains false or Minnesota Commercial Railway filed by August 3, 2011, with the misleading information, the exemption Company—Discontinuance of Service Surface Transportation Board, 395 E is void ab initio. Exemption—in Washington County, Street, SW., Washington, DC 20423– BNSF has filed environmental and MN 1 0001. historic reports that address the effects, A copy of any petition filed with the Minnesota Commercial Railway if any, of the abandonment on the Board should be sent to MNNR’s Company (MNNR) filed a verified notice environment and historic resources. representative: Karl Morell, Ball Janik of exemption under 49 CFR Part 1152 OEA will issue an environmental LLP, 655 Fifteenth Street, NW., Suite subpart F—Exempt Abandonments and assessment (EA) by July 19, 2011. 225, Washington, DC 20005. Discontinuances of Service to Interested persons may obtain a copy of If the verified notice contains false or discontinue service over a 0.51-mile line the EA by writing to OEA (Room 1100, misleading information, the exemption of railroad owned by BNSF Railway Surface Transportation Board, is void ab initio. Company (BNSF) between milepost Washington, DC 20423–0001) or by Board decisions and notices are 15.59 and milepost 16.10 at Hugo, in calling OEA at (202) 245–0305. available on our Web site at HTTP:// Washington County, MN. The line Assistance for the hearing impaired is WWW.STB.DOT.GOV. available through the Federal traverses United States Postal Service 2 Decided: July 11, 2011. Information Relay Service (FIRS) at 1– Zip Code 55038. 800–877–8339. Comments on MNNR has certified that: (1) No local By the Board. environmental and historic preservation traffic has moved over the line for at Rachel D. Campbell, matters must be filed within 15 days least 2 years; (2) no overhead traffic has Director, Office of Proceedings. after the EA becomes available to the been handled on the line for at least 2 Andrea Pope-Matheson, years; and (3) no formal complaint filed public. Clearance Clerk. by a user of rail service on the line (or Environmental, historic preservation, by a state or local government entity [FR Doc. 2011–17719 Filed 7–13–11; 8:45 am] public use, or trail use/rail banking acting on behalf of such user) regarding BILLING CODE 4915–01–P conditions will be imposed, where cessation of service over the line either appropriate, in a subsequent decision. is pending with the Surface Pursuant to the provisions of 49 CFR Transportation Board or with any U.S. DEPARTMENT OF THE TREASURY 1152.29(e)(2), BNSF shall file a notice of District Court or has been decided in consummation with the Board to signify favor of complainant within the 2-year Debt Management Advisory Committee that it has exercised the authority period. MNNR also has certified that the Meeting granted and fully abandoned the line. If requirements at 49 CFR 1105.12 Notice is hereby given, pursuant to 5 consummation has not been effected by (newspaper publication) and 49 CFR U.S.C. App. 2, § 10(a)(2), that a meeting BNSF’s filing of a notice of 1152.50(d)(1) (notice to governmental will be held at the Hay-Adams Hotel, consummation by July 14, 2012, and agencies) have been met. 16th Street and Pennsylvania Avenue, there are no legal or regulatory barriers As a condition to this exemption, any NW.,Washington, DC, on August 2, 2011 to consummation, the authority to employee adversely affected by the at 9:30 a.m. of the following debt abandon will automatically expire. discontinuance of service shall be management advisory committee: protected under Oregon Short Line Treasury Borrowing Advisory 2 The Board will grant a stay if an informed Committee of The Securities Industry decision on environmental issues (whether raised 1 This transaction is related to a concurrently by a party or by the Board’s Office of Environmental filed verified notice of exemption filed in Docket and Financial Markets Association. Analysis (OEA) in its independent investigation) No. AB 6 (Sub–No. 474X), BNSF Railway cannot be made before the exemption’s effective Company—Abandonment Exemption—in 3 Each OFA must be accompanied by the filing date. See Exemption of Out-of-Serv. Rail Lines, 5 Washington County, MN, in which BNSF seeks an fee, which is currently set at $1,500. See 49 CFR I.C.C.2d 377 (1989). Any request for a stay should exemption under 49 CFR Part 1152 subpart F to 1002.2(f)(25). be filed as soon as possible so that the Board may abandon the same 0.51-mile line. 4 Because this is a discontinuance proceeding and take appropriate action before the exemption’s 2 MNNR was authorized to lease and operate the not an abandonment, trail use/rail banking and effective date. line in Minnesota Commercial Railway Company— public use conditions are not appropriate. Likewise, 3 Each OFA must be accompanied by the filing Lease & Operation Exemption—Burlington no environmental or historic documentation is fee, which is currently set at $1,500. See 49 CFR Northern Santa Fe Railway Co., FD 33577 (STB required here under 49 CFR 1105.6(c) and 49 CFR 1002.2(f)(25). served Apr. 10, 1998). 1105.8(b), respectively.

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The agenda for the meeting provides requires that such meetings be closed to briefing will give the press an for a charge by the Secretary of the the public because the Treasury opportunity to ask questions about Treasury or his designate that the Department requires frank and full financing projections. The day after the Committee discuss particular issues and advice from representatives of the Committee meeting, Treasury will conduct a working session. Following financial community prior to making its release the minutes of the meeting, any the working session, the Committee will final decisions on major financing charts that were discussed at the present a written report of its operations. Historically, this advice has meeting, and the Committee’s report to recommendations. The meeting will be been offered by debt management the Secretary. closed to the public, pursuant to 5 advisory committees established by the U.S.C. App. 2, § 10(d) and Public Law several major segments of the financial The Office of Debt Management is 103–202, § 202(c)(1)(B) (31 U.S.C. 3121 community. When so utilized, such a responsible for maintaining records of note). committee is recognized to be an debt management advisory committee This notice shall constitute my advisory committee under 5 U.S.C. App. meetings and for providing annual determination, pursuant to the authority 2, § 3. reports setting forth a summary of placed in heads of agencies by 5 U.S.C. Although the Treasury’s final Committee activities and such other App. 2, § 10(d) and vested in me by announcement of financing plans may matters as may be informative to the Treasury Department Order No. 101–05, not reflect the recommendations public consistent with the policy of 5 that the meeting will consist of provided in reports of the Committee, U.S.C. 552(b). The Designated Federal discussions and debates of the issues premature disclosure of the Committee’s Officer or other responsible agency presented to the Committee by the deliberations and reports would be official who may be contacted for Secretary of the Treasury and the likely to lead to significant financial additional information is Fred making of recommendations of the speculation in the securities market. Pietrangeli, Deputy Director for Office of Committee to the Secretary, pursuant to Thus, this meeting falls within the Debt Management (202) 622–1876. Public Law 103–202, § 202(c)(1)(B). exemption covered by 5 U.S.C. Thus, this information is exempt from 552b(c)(9)(A). Dated: July 6, 2011. disclosure under that provision and 5 Treasury staff will provide a technical Mary Miller, U.S.C. 552b(c)(3)(B). In addition, the briefing to the press on the day before Assistant Secretary, (Financial Markets). meeting is concerned with information the Committee meeting, following the [FR Doc. 2011–17526 Filed 7–13–11; 8:45 am] that is exempt from disclosure under 5 release of a statement of economic BILLING CODE 4810–25–M U.S.C. 552b(c)(9)(A). The public interest conditions and financing estimates. This

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Part II

Environmental Protection Agency

40 CFR Part 52 Approval and Promulgation of Implementation Plans; California; 2007 South Coast PM2.5 Plan and 2007 State Strategy; Proposed Rules

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ENVIRONMENTAL PROTECTION change and may be made available A. California’s SIP Submittals AGENCY online at http://www.regulations.gov, 1. 2007 South Coast AQMP including any personal information 2. CARB 2007 State Strategy 40 CFR Part 52 provided, unless the comment includes 3. CARB 2009 State Strategy Status Report 4. Additional 2008 SIP Submittal Related [EPA–R09–OAR–2009–0366; FRL–9435–1] Confidential Business Information (CBI) to Motor Vehicle Emissions Budgets or other information whose disclosure is 5. CARB 2011 Progress Report Approval and Promulgation of restricted by statute. Information that 6. Revisions to the 2007 PM2.5 and Ozone Implementation Plans; California; 2007 you consider CBI or otherwise protected State Implementation Plan for South South Coast PM2.5 Plan and 2007 State should be clearly identified as such and Coast Air Basin and Coachella Valley Strategy should not be submitted through http:// B. CAA Procedural Requirements for SIP www.regulations.gov or e-mail. The Submittals AGENCY: Environmental Protection http://www.regulations.gov Web site is III. EPA’s 2010 Proposed Action on the South Agency (EPA). Coast PM2.5 SIP an ‘‘anonymous access’’ system, and IV. CAA and Regulatory Requirements for ACTION: Proposed rule. EPA will not know your identity or PM2.5 Attainment SIPs contact information unless you provide SUMMARY: EPA is proposing to approve V. Review of the South Coast 2007 AQMP it in the body of your comment. If you and the South Coast Portion of the in part and disapprove in part state send e-mail directly to EPA, your e-mail Revised 2007 State Strategy implementation plan (SIP) revisions address will be automatically captured A. Emission Inventories submitted by California to provide for and included as part of the public 1. Requirements for Emission Inventories attainment of the 1997 fine particulate comment. If EPA cannot read your 2. Emission Inventories in the South Coast matter (PM ) national ambient air 2007 AQMP 2.5 comments due to technical difficulties quality standards in the Los Angeles- 3. Proposed Action on the Emission and cannot contact you for clarification, South Coast area (South Coast). These Inventories EPA may not be able to consider your SIP revisions are the South Coast 2007 B. Reasonably Available Control Measures comment. (RACM)/Reasonably Available Control Air Quality Management Plan (South Docket: The index to the docket for Technology (RACT) and Adopted Coast 2007 AQMP) (revised 2011) and this action is available electronically on Control Strategy South Coast-related provisions of the the http://www.regulations.gov Web site 1. Requirement for RACM/RACT 2007 State Strategy (revised 2009 and and in hard copy at EPA Region 9, 75 2. RACM/RACT Demonstration in the 2011). EPA is proposing to approve the Hawthorne Street, San Francisco, South Coast 2007 AQMP and the 2007 emissions inventories; air quality State Strategy California, 94105. While all documents a. District’s RACM/RACT Analysis and modeling; reasonably available control in the docket are listed in the index, measures/reasonably available control Adopted Control Strategy some information may be publicly b. CARB’s RACM Analysis and Adopted technology demonstration; the available only at the hard copy location Control Strategy reasonable further progress and (e.g., copyrighted material), and some c. The Local Jurisdiction’s RACM Analysis attainment demonstrations; and the may not be publicly available at either 3. Proposed Actions on RACM/RACT transportation conformity motor vehicle location (e.g., CBI). To inspect the hard Demonstration and Adopted Control emissions budgets. EPA is also copy materials, please schedule an Strategy proposing to grant California’s request C. Attainment Demonstration appointment during normal business 1. Requirements for Attainment to extend the attainment deadline for hours with the contact listed in the FOR the South Coast to April 5, 2015 and to Demonstration FURTHER INFORMATION CONTACT section 2. Air Quality Modeling in the South Coast approve commitments to measures and below. 2007 AQMP reductions by the South Coast Air Copies of the SIP materials are also 3. PM2.5 Precursors Addressed in the South Quality Management District and the available for inspection at the following Coast 2007 AQMP California Air Resources Board. Finally, locations: 4. Extension of the Attainment Date we are proposing to disapprove the • California Air Resources Board, 5. Attainment Demonstration SIP’s contingency measures and to reject 1001 I Street, Sacramento, California a. Enforceable Commitments i. The Commitment Represents a Limited the assignment of 10 tpd of NOX 95812, and reductions to the federal government. • South Coast Air Quality Portion of Required Reductions ii. The State Is Capable of Fulfilling Its This proposed rule amends EPA’s Management District, 21865 E. Copley Commitment November 22, 2010 proposed rule (75 Drive, Diamond Bar, California 91765. iii. The Commitment Is for a Reasonable FR 91294) on the South Coast PM2.5 The SIP materials are also electronically and Appropriate Period of Time plan and 2007 State strategy. available at: http://aqmd.gov/aqmp/ b. Federal Reductions DATES: Any comments must arrive by 07aqmp/index.html and http:// 6. Proposed Action on the Attainment August 15, 2011. www.arb.ca.gov/planning/sip/sip.htm. Demonstration D. Reasonable Further Progress ADDRESSES: Submit comments, FOR FURTHER INFORMATION CONTACT: Demonstration identified by docket number EPA–R09– Wienke Tax, Air Planning Office (AIR– 1. Requirements for Reasonable Further OAR–2009–0366, by one of the 2), U.S. Environmental Protection Progress following methods: Agency, Region 9, (415) 947–4192, 2. Reasonable Further Progress • Federal eRulemaking Portal: http:// [email protected]. Demonstration in the South Coast 2007 www.regulations.gov. Follow the online AQMP SUPPLEMENTARY INFORMATION: 3. Proposed Action on the RFP instructions. Throughout this document, ‘‘we,’’ ‘‘us’’ • E-mail: [email protected]. Demonstration and ‘‘our’’ refer to EPA. • Mail or deliver: Marty Robin, Office E. Contingency Measures of Air Planning (AIR–2), U.S. Table of Contents 1. Requirements for Contingency Measures 2. Contingency Measures in the South Environmental Protection Agency I. The PM2.5 NAAQS and the South Coast Coast 2007 AQMP Region 9, 75 Hawthorne Street, San PM2.5 Nonattainment Area 3. Proposed Action on the Contingency Francisco, CA 94105. II. California’s State Implementation Plan Measures Instructions: All comments will be Submittals to Address PM2.5 Attainment F. Motor Vehicle Emissions Budgets for included in the public docket without in the South Coast Nonattainment Area Transportation Conformity

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1. Requirements for Transportation See 72 FR 20586, 20589 (April 25, concentrations typically occurring in Conformity 2007). metropolitan Los Angeles and in the 2. Budgets in the South Coast 2007 AQMP Following promulgation of a new or inland valley areas of San Bernardino and Additional 2008 Submittal revised NAAQS, EPA is required by and metropolitan Riverside Counties. 3. EPA’s 2008 Adequacy/Inadequacy Finding Clean Air Act (CAA) section 107(d) to The higher PM2.5 concentrations in Los 4. Updated Motor Vehicle Emissions designate areas throughout the United Angeles County are mainly due to Budgets in the 2011 Progress Report and States as attaining or not attaining the secondary formation of particulates. See Additional Revisions NAAQS. On January 5, 2005, EPA South Coast 2007 AQMP, page 2–13. 5. Proposed Action on the Revised published initial air quality II. California’s State Implementation Updated Budgets in the 2011 Progress designations for the 1997 PM NAAQS, 2.5 Plan Submittals To Address PM Report based on air quality monitoring data for 2.5 6. Proposed Action on the Trading three-year periods of 2001–2003 or Attainment in the South Coast Mechanism Nonattainment Area VI. EPA’s Proposed Actions and 2002–2004 (70 FR 944). These Consequences designations became effective on April A. California’s SIP Submittals A. EPA’s Proposed Approvals and 5, 2005. Designation of an area as Disapprovals EPA designated the ‘‘Los Angeles- nonattainment starts the process for a B. CAA Consequences of a Final South Coast Air Basin’’ area (South state to develop and submit to EPA a Disapproval Coast nonattainment area), including VII. Statutory and Executive Order Reviews State Implementation plan (SIP) under Orange County, the southwestern two- title 1, part D of the CAA. This SIP must thirds of Los Angeles County, I. The PM2.5 NAAQS and the South include, among other things, a southwestern San Bernardino County, Coast PM2.5 Nonattainment Area demonstration of how the NAAQS will and western Riverside County as On July 18, 1997 (62 FR 36852), EPA be attained in the nonattainment area as nonattainment for both the 1997 24- established new national ambient air expeditiously as practicable, but no later hour and the annual PM standards. quality standards (NAAQS) for PM , 2.5 than the date required by the CAA. 2.5 The South Coast PM nonattainment particulate matter with a diameter of 2.5 2.5 Under CAA section 172(b), a State has area is home to about 17 million people, microns or less, including annual up to three years after an area’s has a diverse economic base, and standards of 15.0 micrograms per cubic designation to nonattainment to submit contains one of the highest-volume port meter (μg/m3) based on a 3-year average its SIP to EPA. For the 1997 PM2.5 areas in the world. For a precise of annual mean PM concentrations, NAAQS, these nonattainment SIPs were 2.5 description of the geographic and 24-hour (daily) standards of 65 μg/ due no later than April 5, 2008. boundaries of the South Coast PM m3 based on a 3-year average of the 98th 2.5 California has made six SIP submittals nonattainment area, see 40 CFR 81.305.1 percentile of 24-hour concentrations. 40 to address PM2.5 nonattainment in the The local air district with primary CFR 50.7 EPA established the standards South Coast nonattainment area. The responsibility for developing a plan to based on substantial evidence from two principal ones are the District’s attain the PM2.5 NAAQS in this area is numerous health studies demonstrating 2007 PM2.5 Plan (South Coast 2007 the South Coast Air Quality that serious health effects are associated AQMP) and the CARB’s State Strategy Management District (District or with exposures to PM2.5 concentrations for California’s 2007 State SCAQMD). Implementation Plan (2007 State above the levels of these standards. Ambient 24-hour PM levels in the Epidemiological studies have shown 2.5 Strategy). South Coast are well below the 1997 statistically significant correlations In addition to these submittals, the PM NAAQS. Ambient annual PM between elevated PM levels and 2.5 2.5 District and State have also submitted 2.5 levels are improving but are still above premature mortality. Other important numerous rules that contribute to the federal NAAQS. The design value health effects associated with PM improving air quality in the South Coast 2.5 monitor at Mira Loma recorded a value exposure include aggravation of nonattainment area. See Appendices A of 16.8 μg/m3 for the 2008–2010 respiratory and cardiovascular disease and B of the technical support period.2 In the South Coast, the levels (as indicated by increased hospital document (TSD) for this proposal. and composition of PM differ by admissions, emergency room visits, 2.5 geographic location, with higher PM 1. 2007 South Coast AQMP absences from school or work, and 2.5 restricted activity days), changes in lung On November 28, 2007, the California 1 On October 17, 2006, EPA strengthened the 24- Air Resources Board (CARB or State) function and increased respiratory μ hour PM2.5 NAAQS by lowering the level to 35 g/ submitted the ‘‘Final 2007 Air Quality symptoms, as well as new evidence for m3. At the same time, we retained the level of the 3 μ 3 Management Plan, June 2007.’’ This more subtle indicators of cardiovascular annual PM2.5 standard at 15.0 g/m . 71 FR 61144. health. Individuals particularly On November 13, 2009, EPA designated areas, including the South Coast, with respect to the 3 The South Coast 2007 AQMP is the first South sensitive to PM2.5 exposure include revised 24-hour NAAQS. 74 FR 58688. California is Coast Plan to address PM2.5. We have previously older adults, people with heart and lung now required to submit an attainment plan for the acted on numerous South Coast air quality plans for μ 3 disease, and children. See, EPA, Air 35 g/m standards by December 14, 2012. In this ozone, PM–10, carbon monoxide, and NO2, such as Quality Criteria for Particulate Matter, preamble, all references to the PM2.5 NAAQS, the 1997/1999 AQMP. We approved the ozone unless otherwise specified, are to the 1997 24-hour portion of the 1997 South Coast AQMP, as amended μ 3 No. EPA/600/P–99/002aF and EPA/600/ PM2.5 standards of 65 g/m and annual standards in 1999, on April 10, 2000 (see 65 FR 18903). Our P–99/002bF, October 2004. of 15 μg/m3 as codified in 40 CFR 50.7. most recent action on a SIP addressing the CAA PM2.5 can be emitted directly into the 2 See the Air Quality Subsystem (AQS) requirements for the South Coast ozone atmosphere as a solid or liquid particle Preliminary Design Value Report dated April 21, nonattainment area was our partial approval and 2011 in the docket for today’s action. 16.8 μg/m3 partial disapproval of the 2003 AQMP (see 74 FR (‘‘primary’’ or ‘‘direct PM2.5’’) or can be is the highest design value in the South Coast 10176, March 10, 2009). Our 2009 final action was formed in the atmosphere as a result of nonattainment area. The design value is the three challenged in the Ninth Circuit Court of Appeals, various chemical reactions from year average of annual means of a single monitoring which published an opinion remanding certain precursor emissions of nitrogen oxides site. (see 40 CFR 50 Appendix N Section 1(c)(1)). aspects of EPA’s action for further action consistent This design value is based on 2008 and 2009 data with the opinion. See Association of Irritated (NOX), sulfur oxides (SOX), volatile that are complete, validated, and certified by the Residents v. EPA, 632 F.3d 584 (9th Cir. 2011). The organic compounds (VOC) and District and on 2010 data that are complete and issues in dispute relate to the consequences of an ammonia (NH3) (‘‘secondary PM2.5’’). validated but not yet certified by the District. Continued

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Plan was adopted by the District on June areas such as the San Joaquin Valley California SIP on April 30, 2008 and 1, 2007 and submitted to CARB on and the Sacramento area. It also were amended as part of the 2011 October 24, 2007.4 The South Coast includes CARB’s commitments to Progress Report discussed below. We 7 2007 AQMP includes a PM2.5 attainment propose 15 defined State measures and are acting on the budgets as amended in demonstration for the South Coast. In to obtain specific amounts of aggregate 2011 today. order to meet relevant CAA emissions reductions of direct PM , 2.5 5. CARB 2011 Progress Report requirements for the PM2.5 NAAQS, the NOX, VOC and SOX in the South Coast South Coast 2007 AQMP includes base from sources under the State’s On May 18, 2011, CARB submitted and projected year PM2.5 emissions jurisdiction, primarily on- and off-road the ‘‘Progress Report on Implementation inventories for the South Coast motor vehicles and engines. of PM2.5 State Implementation Plans nonattainment area; air quality 3. CARB 2009 State Strategy Status (SIP) for the South Coast and San monitoring data; short-, medium- and Report Joaquin Valley Air Basins and Proposed long-term District control measures; a SIP Revisions’’, dated March 29, 2011, summary of CARB’s control measures; On August 12, 2009, CARB submitted and adopted April 28, 2011 (‘‘2011 transportation control measures (TCMs); the ‘‘Status Report on the State Strategy Progress Report’’).9 This submittal, a demonstration of reasonable further for California’s 2007 State which updates both the 2007 State progress (RFP); a modeled attainment Implementation Plan (SIP) and Strategy and the South Coast 2007 demonstration; a demonstration of Proposed Revision to the SIP Reflecting AQMP, shows that both CARB and the reasonably available control measures/ Implementation of the 2007 State District have made significant progress reasonably available control technology Strategy’’, dated March 24, 2009, in meeting their commitments to adopt (RACM/RACT); contingency measures adopted April 24, 2009 (‘‘2009 State measures and to reduce emissions. More Strategy Status Report’’),8 which for the 1997 PM2.5 RFP and for specifically, it updates CARB’s updates the 2007 State Strategy to attainment for the South Coast PM2.5 rulemaking calendar in the 2007 State nonattainment area; and a request to reflect its implementation during 2007 Strategy to reflect the current status of and 2008. extend the attainment date for the 1997 CARB’s adopted PM measures and to In today’s proposal, we are evaluating 2.5 PM2.5 NAAQS to April 5, 2015, although change the expected action dates for all controls necessary for attainment by only those portions of the South Coast 2007 AQMP and 2007 State Strategy and several measures. It also updates the that date will be in place by the RFP demonstration, contingency 5 its revisions (including the 2011 attainment year of 2014. The South measures, and transportation conformity Coast 2007 AQMP submittal also revisions described below) that are relevant for attainment of the 1997 PM motor vehicle emissions budgets in the includes District Governing Board 2.5 South Coast 2007 AQMP to reflect rule Resolution 07–9 adopting the final standards in the South Coast nonattainment area. adoption, changes to activity and South Coast 2007 AQMP. emissions factors for certain source 2. CARB 2007 State Strategy 4. Additional 2008 SIP Submittal categories, and the impact on projected Related to Motor Vehicle Emissions To demonstrate attainment, the South emissions levels in the South Coast Budgets nonattainment area of the recent Coast 2007 AQMP relies in part on 10 measures in the 2007 State Strategy. The In addition to the SIP submittals for economic recession. the 1997 PM2.5 NAAQS mentioned 2007 State Strategy was adopted on 6. Revisions to the 2007 PM2.5 and September 27, 2007 and submitted to above, on April 4, 2008, the District Ozone State Implementation Plan for EPA on November 16, 2007.6 It Governing Board approved an South Coast Air Basin and Coachella discusses CARB’s overall approach to alternative approach for transportation Valley addressing, in conjunction with local conformity motor vehicle emission Also, on May 19, 2011, CARB plans, attainment of both the 1997 PM2.5 budgets for the South Coast and 8-hour ozone NAAQS not only in nonattainment area. This new approach submitted a SIP revision entitled the South Coast nonattainment area but was based on the 2007 SIP baseline ‘‘Revisions to the 2007 PM2.5 and Ozone also in California’s other nonattainment emissions reflecting only the regulations State Implementation Plan for South adopted as of October 2006 for all Coast Air Basin and Coachella Valley EPA disapproval of a SIP submittal, the adequacy milestone years up to the attainment (SIP Revisions)’’. These SIP revisions of EPA’s evaluation of a particular control measure year. The CARB Governing Board provide revised control measure from the 2003 State Strategy, and the rationale for approved Resolution 08–27 itemizing commitments, a revised rule EPA’s approval of the State’s submittal as meeting the requirements of CAA section 182(d)(1)(A) the modifications to the South Coast implementation schedule, and a partial (TCMs to offset growth in emissions from growth nonattainment area transportation backstop for the 10 tpd NOX federal in VMT) in the South Coast. EPA has sought conformity emission budgets. The assignment for the South Coast 2007 rehearing on some of the issues, and the mandate revised motor vehicle emissions budgets AQMP.11 For the purposes of today’s in this case has not yet been issued pending action by the court on the petition for rehearing. were submitted as an amendment to the 4 See letter, James N. Goldstene, Executive 9 See CARB Board Resolution 11–24, May 18, Officer, CARB, to Jared Blumenfeld, Regional 7 The 2007 State Strategy also includes measures 2011 and letter, James N. Goldstene, Executive Administrator, EPA Region 9, September 15, 2010, to be implemented by the California Bureau of Officer, CARB to Jared Blumenfeld, Regional with enclosures. Automotive Repair (Smog Check improvements) Administrator, EPA Region 9, May 19, 2011 with 5 enclosures. Only Appendices B, C and D of the While the applicable attainment date for PM2.5 and the California Department of Pesticide areas with a full five-year extension is April 5, Regulation (VOC reductions from pesticide use). 2011 Progress Report are submitted as a SIP 2015, reductions must be implemented by 2014 to See 2007 State Strategy, p. 64–65 and CARB revision. The balance of the report is for achieve attainment by that date. See 40 CFR Resolution 7–28, Attachment B, p. 8. informational purposes only. 51.1007(b). We, therefore, refer to 2014 as the 8 See CARB Resolution No. 09–34, April 24, 2009 10 On June 20, 2011, CARB posted to its Web site attainment year and April 5, 2015 as the attainment and letter, James N. Goldstene, Executive Officer, technical revisions to the updated motor vehicle date. CARB to Wayne Nastri, Regional Administrator, emissions budgets (budgets) in the 2011 Progress 6 See CARB Resolution No. 07–28, September 27, EPA Region 9, August 12, 2009 with enclosures. Report. See http://www.arb.ca.gov/planning/sip/ 2007 with attachments and letter from James N. Only pages 11–27 of the 2009 State Strategy Status 2007sip/2007sip.htm. We discuss these revisions in Goldstene, Executive Officer, CARB, to Wayne Report are submitted as a SIP revision. The balance the section on budgets below. Nastri, Regional Administrator, EPA Region 9, of the report is for informational purposes only. See 11 See letter, Lynn Terry, Deputy Executive November 16, 2007 with enclosures. Attachment A to CARB Resolution No. 09–34. Officer, CARB, to Jared Blumenfeld, Regional

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proposal, we will refer to this SIP The SIP submittals include proof of disapprove the RACM/RACT and RFP revision as ‘‘2011 Progress Report, publication for notices of the District demonstrations. We also proposed to Appendix F’’, since it was included as and CARB public hearings, as evidence disapprove the related contingency an Appendix to the 2011 Progress that all hearings were properly noticed. measures and transportation conformity Report submitted on May 18, 2011. We find, therefore, that the four motor vehicle emissions budgets for the In today’s proposal, we are only submittals that comprise the South RFP milestone years 2009 and 2012 and evaluating those portions of the South Coast PM2.5 Plan meet the procedural the attainment year of 2014. Finally, we Coast 2007 AQMP and the 2007 State requirements of CAA sections 110(a) proposed not to grant the State’s request Strategy and its revisions that are and 110(l). to extend the attainment date for the relevant for attainment of the PM2.5 CAA section 110(k)(1)(B) requires PM2.5 NAAQS in the South Coast standards in the South Coast EPA to determine whether a SIP nonattainment area to April 5, 2015. nonattainment area. submittal is complete within 60 days of During the comment period for the Future references in this proposal to receipt. This section also provides that November 2010 proposal, we received the AQMP and the 2007 State Strategy any plan that EPA has not affirmatively four comment letters from the public as will be to the AQMP as revised in 2011 determined to be complete or well as comment letters from CARB and and the Strategy as revised in 2009 and incomplete will become complete 6 the District. Subsequent to the close of 2011, respectively, unless otherwise months after the date of submittal by the comment period, CARB adopted and noted. operation of law. EPA’s SIP submitted revisions to the South Coast 2007 AQMP and 2007 State Strategy. B. CAA Procedural Requirements for SIP completeness criteria are found in 40 After considering information contained Submittals CFR part 51, Appendix V. The South Coast 2007 AQMP became in the comment letters and these CAA sections 110(a)(1) and (2) and complete by operation of law on May supplemental SIP submittals, we have 110(l) require a state to provide 28, 2008. The November 16, 2007 substantially amended our November reasonable public notice and submission of the 2007 State Strategy 2010 proposed action as described opportunity for public hearing prior to and the 2009 revisions to the Strategy below. EPA will consider all significant the adoption and submittal of a SIP or became complete by operation of law on comments submitted in response to both SIP revision. To meet this requirement, May 16, 2008 and February 12, 2010, its November 2010 proposal and today’s every SIP submittal should include respectively. We determined that the proposal before taking final action on evidence that adequate public notice 2011 Progress Report was complete on the South Coast 2007 AQMP. However, was given and an opportunity for a June 13, 2011.12 EPA strongly encourages those who public hearing was provided consistent submitted comments on the November with EPA’s implementing regulations in III. EPA’s 2010 Proposed Action on the 2010 proposal to submit revised 40 CFR 51.102. South Coast PM2.5 SIP comments reflecting today’s amended Both the District and CARB have This is the second time EPA has proposal during the comment period on satisfied applicable statutory and proposed action on California’s SIP to this amended proposal. regulatory requirements for reasonable address attainment of the 1997 PM2.5 IV. CAA and Regulatory Requirements public notice and hearing prior to standards in the South Coast for PM2.5 Attainment SIPs adoption and submittal of the South nonattainment area. On November 22, Coast 2007 AQMP. The District 2010 (75 FR 71294), EPA proposed to EPA is implementing the PM2.5 conducted public workshops, provided approve in part and disapprove in part NAAQS under Title 1, part D, subpart 1 of the CAA, which includes section public comment periods, and held the 2007 South Coast PM2.5 plan and the public hearings prior to the adoption of related portions of the 2007 State 172, ‘‘Nonattainment plan provisions.’’ the South Coast 2007 AQMP on June 1, Strategy as amended in 2009. Section 172(a)(2) establishes the 2007 (District Governing Board Specifically, we proposed to approve attainment date for a PM2.5 Resolution No. 07–9). CARB provided the emissions inventories as meeting the nonattainment area ‘‘as expeditiously as the required public notice and applicable requirements of the CAA and practicable’’ but no later than five years after the area’s designation as opportunity for public comment prior to the PM2.5 implementation rule in 40 its September 27, 2007 public hearing CFR part 51, subpart Z. We proposed to nonattainment. This section also allows on the plan. See CARB Resolution No. approve the District’s and CARB’s EPA to grant up to a five-year extension 07–41. commitments to specific measures and of an area’s attainment date based on the CARB conducted public workshops, specific aggregate emissions reductions severity of the area’s nonattainment and provided public comment periods, and in these SIP revisions because their the availability and feasibility of held a public hearing prior to the approval would strengthen the SIP. We controls. EPA designated the South adoption of the 2007 State Strategy on also proposed to approve the air quality Coast as a nonattainment area effective September 27, 2007. (CARB Resolution modeling. April 5, 2005, and thus the applicable No. 07–28). CARB also provided the We previously proposed to attainment date is no later than April 5, required public notice, opportunity for disapprove the attainment 2010 or, should EPA grant a full five- public comment, and a public hearing demonstration as not meeting the year extension, no later than April 5, prior to its April 24, 2009 adoption of applicable requirements of the CAA and 2015. Section 172(c) contains the general the 2009 State Strategy Status Report. the PM2.5 implementation rule because CARB also provided the required public it relied too extensively on enforceable statutory planning requirements notice, opportunity for public comment, commitments to reduce emissions in applicable to all nonattainment areas, and a public hearing prior to its April place of fully-adopted and submitted including the requirements for 28, 2011 adoption of the 2011 Progress rules. Based on this proposed emissions inventories, RACM/RACT, Report. See CARB Resolution 09–34 and disapproval, we also proposed to attainment demonstrations, RFP CARB Executive Order S–11–010. demonstrations, and contingency 12 See letter, Deborah Jordan, EPA Region 9, to measures. Administrator, EPA Region 9, dated May 19, 2011, James Goldstene, CARB, dated June 13, 2011 in the On April 25, 2007, EPA issued the and enclosed ARB Board Resolution 11–24. docket for today’s action. Clean Air Fine Particle Implementation

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Rule for the 1997 PM2.5 NAAQS. 72 FR ‘‘comprehensive, accurate, current in ‘‘Emissions Inventory Guidance for 20586, codified at 40 CFR part 51, inventory of actual emissions from all Implementation of Ozone and subpart Z (PM2.5 implementation rule). sources of the relevant pollutant.’’ The Particulate Matter NAAQS and Regional The PM2.5 implementation rule and its PM2.5 implementation rule requires Haze Regulations,’’ November 2005 preamble address the statutory planning states to include direct PM2.5 emissions (EPA–454/R–05–001). requirements for emissions inventories, and emissions of all PM2.5 precursors in RACM/RACT, attainment this inventory, even if it has determined 2. Emissions Inventories in the South demonstrations including air quality that control of any of these precursors Coast 2007 AQMP modeling requirements, RFP is not necessary for expeditious The base year and future year baseline demonstrations, and contingency attainment. 40 CFR 51.1008(a)(2) and 72 planning inventories for direct PM measures. This rule also addresses other 2.5 FR 20586, at 20648. Direct PM2.5 and all PM precursors for the South matters such as which PM precursors 2.5 2.5 includes condensable particulate matter. Coast nonattainment area together with must be addressed by the State in its See 40 CFR 51.1000. PM2.5 precursors additional documentation for the PM2.5 attainment SIP, applicable are NOX, SO2, VOC, and ammonia 14 inventories are found in Appendix III of attainment dates, and the requirement (NH3). Id. The inventories should meet for mid-course reviews.13 We will the South Coast 2007 AQMP. Average the data requirements of EPA’s annual day baseline inventories are discuss each of these CAA and Consolidated Emissions Reporting Rule regulatory requirements for attainment provided for the plan’s base year of 2002 (codified at 40 CFR part 51 subpart A) (the reference year for the RFP plans in more detail below. and include any additional inventory demonstration) as well as 2005, 2008, information needed to support the SIP’s V. Review of the South Coast 2007 2010, 2011, and 2014. The base year and attainment demonstration and (where AQMP and the South Coast Portion of baseline inventories incorporate applicable) RFP demonstration. 40 CFR the 2007 State Strategy reductions from federal, state, and 51.1008(a)(1) and (2). We summarize our evaluation of the Baseline emissions inventories are District measures adopted prior to 2007. South Coast PM2.5 plan’s compliance required for the attainment South Coast 2007 AQMP, page 3–1. The with applicable CAA and EPA demonstration and for meeting RFP District also provided both summer and regulatory requirements below. Our requirements. As determined on the winter planning inventories for PM2.5 detailed evaluation can be found in the date of designation, the base year for and PM2.5 precursors. South Coast 2007 TSD for this proposal, which is these inventories should be the most AQMP, Appendix III, page III–1–23. available on line at http:// recent calendar year for which a Table 1 is a summary of the average www.regulations.gov in docket number complete inventory was required to be annual day inventories for directly- EPA–R09–OAR–2009–0366, or from the submitted to EPA. The emission emitted PM2.5 and for the PM2.5 EPA contact listed at the beginning of inventory for calendar year 2002 or precursors NOX, VOC, and SOX for the this notice. other suitable year should be used for base year of 2002 from the South Coast A. Emissions Inventories attainment planning and RFP plans for 2007 AQMP (derived from Appendix A, areas initially designated nonattainment Table A–2). It is these inventories that 1. Requirements for Emissions for the PM2.5 NAAQS in 2005. 40 CFR provide the basis for the control Inventories 51.1008(b). measure analysis and the RFP and CAA section 172(c)(3) requires states EPA has provided additional attainment demonstrations in the South to submit a plan revision that includes guidance for PM2.5 emission inventories Coast 2007 AQMP.

TABLE 1—SOUTH COAST NONATTAINMENT AREA EMISSIONS INVENTORY SUMMARY FOR PM2.5 AND PM2.5 PRECURSORS FOR THE 2002 BASELINE YEAR [Annual average day emissions in tons per day] a

b NOX VOC PM2.5 SOX NH3 Emissions inventory category 2002 2002 2002 2002 2005

Stationary/Areawide Sources ...... 93 302 60 22 75 On-road Mobile Sources ...... 628 362 18 4 29 Off-road Mobile Sources ...... 372 180 21 27 n/a

13 In June 2007, a petition to the EPA RFP. These provisions are found in the PM2.5 to consider proposed changes to the 2007 PM2.5 Administrator was filed on behalf of several public implementation rule and preamble at 20623–20628, implementation rule. health and environmental groups requesting 40 CFR 51.1002(c), 20619–20620, and 20636, Neither the District nor the State relied on the reconsideration of four provisions in the PM2.5 respectively. On May 13, 2010, EPA granted the first, third, or fourth of these provisions in implementation rule. See EarthJustice, Petition for petition with respect to the fourth issue. Letter, preparing the South Coast 2007 AQMP or 2007 Reconsideration, ‘‘In the Matter of Final Clean Air Gina McCarthy, EPA, to David Baron and Paul Cort, State Strategy. The District has deferred CPM limits Fine Particle Implementation Rule,’’ June 25, 2007. EarthJustice, May 13, 2010. On April 25, 2011, EPA in its rules. This limited deferral does not affect the These provisions are (1) the presumption that granted the petition with respect to the first and South Coast 2007 AQMP’s RACM/RACT and compliance with the Clean Air Interstate Rule third issues, but denied the petition with respect to expeditious attainment demonstrations. EPA will satisfies the NOX and SO2 RACT requirements for the second issue given that the deferral period for evaluate any rule adopted or revised by the District electric generating units; (2) the deferral of the CPM emissions limits had already ended. Letter, after January 1, 2011 to assure that it appropriately requirement to establish emission limits for Lisa P. Jackson, EPA, to Paul Cort, EarthJustice, addresses CPM. 14 condensable particulate matter (CPM) until January April 25, 2011. EPA intends to publish in the The District controls sulfur oxides (SOX), 1, 2011; (3) revisions to the criteria for analyzing the Federal Register notice that will announce the which includes SO2, and considers the two terms economic feasibility of RACT; and (4) the use of granting of the latter petition with respect to certain interchangeable for emissions purposes. We will out-of-area emissions reductions to demonstrate issues and to initiate a notice and comment process use SOX in this notice.

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TABLE 1—SOUTH COAST NONATTAINMENT AREA EMISSIONS INVENTORY SUMMARY FOR PM2.5 AND PM2.5 PRECURSORS FOR THE 2002 BASELINE YEAR—Continued [Annual average day emissions in tons per day] a

b NOX VOC PM2.5 SOX NH3 Emissions inventory category 2002 2002 2002 2002 2005

Total ...... 1093 844 99 53 104 a Source: 2007 AQMP, pp. 3–9 and 3–14, Tables 3–1A and 3–3A. Numbers may not add due to rounding. Ammonia emissions estimates were updated to 2005 by SCAQMD. b NH3 numbers were not provided for 2002.

As a starting point for the South Coast CAA section 172(c)(3) and 40 CFR for SIP planning purposes. We discuss 2007 AQMP’s inventories, the District 51.1008(a)(1) and to find that the the impact of these changes on the used CARB’s inventory for the year baseline inventories in the South Coast plan’s RFP and attainment 2002. An example of this inventory and 2007 AQMP provide an adequate basis demonstrations later in this notice. CARB’s documentation for its for the RACM/RACT, RFP, and We note that the District and CARB inventories can be found in Appendices attainment demonstrations. We provide are currently working on revisions to A and F, respectively, of the 2007 State more detail on our review of the base the South Coast AQMP to address the Strategy. The 2002 inventory for the year inventory as well as the projected 2006 24-hour PM2.5 standards. These South Coast nonattainment area was year inventories in section II.A. of the revisions are due to EPA in December projected to future years using CARB’s TSD. 2012 and will include the most current California Emission Forecasting and Since late 2007, California has inventory information that is available. Planning Inventory System (CEFIS). experienced an economic recession that South Coast 2007 AQMP, Appendix III, has greatly reduced current levels of B. Reasonably Available Control page III–1–1. Both base year and economic activity in the State’s Measures (RACM)/Reasonably Available baseline inventories use the current construction and goods movement Control Technology (RACT) and version of California’s mobile source sectors. The recession has resulted in Adopted Control Strategy emissions model approved by EPA for lowered projected future levels of 1. Requirements for RACM/RACT use in SIPs, EMFAC2007, for estimating activity in this sector. 2011 Progress on-road motor vehicle emissions. 73 FR Report, Appendix E. As a result, CAA section 172(c)(1) requires that 3464 (January 18, 2008). Off-road projected emission levels from these each attainment plan ‘‘provide for the inventories were developed using the categories are now substantially lower implementation of all reasonably CARB off-road model. Ammonia than the levels projected for 2008 and available control measures as emissions estimates were provided later in the Plan as submitted in 2007. expeditiously as practicable (including separately by the District.15 At this time, California is addressing such reductions in emissions from When CARB submitted the 2011 these recession impacts on future existing sources in the area as may be Progress Report, the revised attainment economic activity through adjustments obtained through the adoption, at a demonstration for the South Coast was to the baseline inventories for specific minimum, of reasonably available based on the 2002 baseline inventory. source categories. See 2011 Progress control technology), and shall provide This is consistent with the baseline Report, Appendix E, page 2. There are for attainment of the national primary inventory in the 2007 AQMP, as well as no recession-related adjustments to the ambient air quality standards.’’ EPA the base year for the RFP demonstration. 2002 base year inventory in the South defines RACM as measures that a State It is also the year recommended by EPA Coast 2007 AQMP. finds are both reasonably available and guidance.16 CARB also made technical changes to contribute to attainment as the inventories for diesel trucks, buses, expeditiously as practicable in its 3. Proposed Action on the Emission and certain categories of off-road mobile nonattainment area. Thus, what Inventories source engines as part of its December constitutes RACM/RACT in a PM2.5 The inventories in the South Coast 2010 rulemaking amending the In-Use attainment plan is closely tied to that 2007 AQMP are based on the most On-Road Truck and Bus Rule and the plan’s expeditious attainment current and accurate information In-Use Off-Road Engine rule. Id. The demonstration. 40 CFR 51.1010; 72 FR available to the State and District at the State estimates that these changes 20586 at 20612. States are required to time the Plan was developed and collectively reduce the 2002 base year evaluate RACM/RACT for direct PM2.5 submitted (including using the latest total inventory in the South Coast by 4 and all of its attainment plan precursors. EPA-approved version of California’s percent for NOX and 5 percent for 40 CFR 51.1002(c). 17 mobile source emissions model, PM2.5. These changes are small given Consistent with subpart 1 of Part D of EMFAC2007), address comprehensively the normal and unavoidable the CAA, EPA is requiring a combined all source categories in the South Coast uncertainties in all emissions approach to RACM and RACT for PM2.5 nonattainment area, and are consistent inventories, and therefore, do not attainment plans. Subpart 1, unlike with EPA’s inventory guidance. For change our basis for proposing to subparts 2 and 4, does not identify these reasons, EPA is proposing to approve the base year inventory or to specific source categories for which EPA approve the 2002 base year emissions find the baseline inventories adequate must issue control technology inventory in the South Coast 2007 documents or guidelines for what AQMP as meeting the requirements of 17 See Attachment 1 to the letter, Lynn Terry, constitutes RACT, or identify specific Deputy Executive Officer, CARB, to Elizabeth source categories for State and EPA 15 Electronic mail from Kathy Hsiao, SCAQMD to Adams, Deputy Director, Air Division, US EPA Wienke Tax, EPA Region 9, ‘‘RE: NH3 numbers for Region 9, dated May 18, 2011 (‘‘CARB Progress evaluation during attainment plan SCAB,’’ dated October 29, 2010. Report supplement’’), in the docket for today’s development. 72 FR 20586 at 20610. 16 See 72 FR 20586, at 20647. proposal. Rather, under subpart 1, EPA considers

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RACT to be part of an area’s overall South Coast nonattainment area. These Valley, the San Francisco Bay Area, RACM obligation. Because of the RACM/RACT analyses address control Sacramento, Ventura, Dallas-Fort Worth, variable nature of the PM2.5 problem in measures for sources of direct PM2.5, the Houston-Galveston area, and by the different nonattainment areas, EPA NOX, SOX, and VOC, which are the Lake Michigan Air Directors determined not only that states should State’s selected attainment plan Consortium, or LADCO), and held have flexibility with respect to RACT precursors for the 1997 PM2.5 standards meetings with CARB, technical experts, and RACM controls but also that in in the South Coast (see section V.C.3 local government representatives, and areas needing significant emission below). We describe each agency’s the public during development of the reductions to attain the standards, efforts below. South Coast 2007 AQMP. The District RACT/RACM controls on smaller a. District’s RACM/RACT Analysis and sponsored an AQMP summit, which sources may be necessary to reach Adopted Control Strategy generated 200 potential control attainment as expeditiously as measures. In addition, the District practicable. 72 FR 20586 at 20612, The District’s RACM/RACT analysis, reviewed the list of control measures 20615. Thus, under the PM2.5 which focuses on stationary and area suggested for consideration in EPA’s source controls, is described in Chapter implementation rule, RACT and RACM PM2.5 implementation rule. The District are those reasonably available measures 6 and Appendix VI of the South Coast also reevaluated all 82 District rules and that contribute to attainment as 2007 AQMP. regulations. The District then screened expeditiously as practicable in the Since the 1970s, the District has the identified measures and rejected specific nonattainment area. 40 CFR adopted stationary source control rules those that affected few or no sources in 51.1010; 72 FR 20586 at 20612. that have resulted in significant the South Coast, had already been improvement of air quality in the South The PM2.5 implementation rule adopted as rules, or were in the process requires that attainment plans include Coast nonattainment area. When of being adopted. The District evaluated command and control rules were no the list of measures the state considered the remaining measures using baseline longer within the limitations of and information sufficient to show that inventories, available control economic efficiency, the District began a state met all requirements for the technologies, and potential emission using economic incentive approaches determination of what constitutes reductions as well as whether the with programs such as the Surplus Off- RACM/RACT in its specific measure could be implemented on a Road Opt-In for NO (SOON) program nonattainment area. 40 CFR 51.1010. In X schedule that would contribute to and the Carl Moyer program.18 19 While addition, the rule requires that the state, attainment of the PM standard the District still relies on command and 2.5 in determining whether a particular assuming a 2015 deadline. South Coast control regulations, the District’s control emissions reduction measure or set of 2007 AQMP, Appendix VI. measures must be adopted as RACM/ strategies are now supplemented by In general, EPA proposes to find that RACT, consider the cumulative impact market incentive and compliance the District’s current rules and of implementing the available measures flexibility approaches where regulations are equivalent to, or more and adopt as RACM/RACT any potential appropriate. These regulations and stringent than, those developed by other measures that are reasonably available strategies have yielded significant air districts with respect to emissions of considering technological and economic emissions reductions from sources PM and PM precursors. The District feasibility if, considered collectively, under the District’s jurisdiction. In 2.5 2.5 is exploring several options for reducing they would advance the attainment date developing the South Coast 2007 by one year or more. Id. Any measures AQMP, the District conducted a process emissions further. These include the that are necessary to meet these to identify RACM for the South Coast feasibility of lowering emission limits requirements that are not already either that involved public meetings to solicit and increasing levels of control in order federally promulgated, part of the state’s input, evaluation of EPA suggested to promote cleaner stationary source SIP, or otherwise creditable in SIPs RACM and RACT, and evaluation of technologies; lowering the VOC content must be submitted in enforceable form other air agencies’ regulations. See of coatings and solvents; establishing as part of a state’s attainment plan for South Coast 2007 AQMP, Appendix VI. standards and test methods for generic the area. 72 FR 20586 at 20614. To determine which measures would equipment and lowering release or leak A more comprehensive discussion of be feasible for the South Coast, the thresholds; improving leak detection, repair, inspection and maintenance; and the RACM/RACT requirement for PM2.5 District looked at measures attainment plans and EPA’s guidance implemented in other nonattainment adding best management practices to rules. for it can be found in the PM2.5 areas’ plans (including the San Joaquin implementation rule preamble at 72 FR Based on its RACM/RACT evaluation 20586, at 20609–20633 and in section 18 The Carl Moyer Memorial Air Quality for stationary and area sources under its II.D. of the TSD for this proposal. Standards Attainment Program (‘‘Carl Moyer jurisdiction, the District developed 37 Program’’) provides incentive grants for engines, stationary source control measures 2. RACM/RACT Demonstration in the equipment and other sources of pollution that are cleaner than required, providing early or extra which comprised all measures included South Coast 2007 AQMP and the 2007 emission reductions. Eligible projects include in other districts’ AQMPs, as well as State Strategy cleaner on-road, off-road, marine, locomotive and some new innovative measures. The stationary agricultural pump engines. The program For the South Coast 2007 AQMP and District determined that the few achieves near-term reductions in emissions of NOX, the 2007 State Strategy, the District, PM, and VOC or reactive organic gas (ROG) which available measures that District staff did CARB and the local agency (through the are necessary for California to meet its clean air not include would not advance the South Coast’s metropolitan planning commitments under the SIP. attainment date or contribute to RFP 19 The SOON program provides funding organization (MPO), the Southern assistance to applicable fleets for the purchase of due to the insignificant or California Association of Governments commercially-available low-emission heavy-duty unquantifiable emissions reductions (SCAG)), each undertook a process to engines to achieve near-term reduction of NOX that they would potentially generate. identify and evaluate potential emissions from in-use off-road diesel vehicles. All See South Coast 2007 AQMP, Appendix large fleets with a total statewide equipment reasonably available control measures horsepower (hp) over 20,000 hp must apply for VI, page VI–7. Since submittal of the that could contribute to expeditious funding. Fleets below 20,000 hp may voluntarily AQMP in 2007, the District has attainment of the PM2.5 standards in the participate in this program. completed action on the majority of

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these rules and submitted them to EPA Coast 2007 AQMP to achieve further ovens, dryers and furnaces, space for approval into the SIP. reductions from VOC, NOX, SOX and heaters, facility modernizations, From October 2002 through June direct PM2.5 sources in the South Coast livestock waste, residential wood 2006, the District adopted area. The District committed to adopt burning, and commercial cooking. The approximately 17 rules to address its and submit measures that will achieve South Coast 2007 AQMP also identifies commitment to achieve the reductions the following additional emissions 22 measures (beyond the new control committed to in the 2003 AQMP for the reductions: 10.8 tpd NOX, 10.4 tpd VOC, measures and additional actions just 20 South Coast. These rules included 2.9 tpd direct PM2.5 and 2.9 tpd SOX. discussed) for further review, which controls on VOC emissions from See 2011 Progress Report, Appendix E, may also yield additional reductions refineries and chemical plants, co- Table 1. The District expects to meet its towards the District’s commitments. As composting operations, architectural emissions reductions commitments for discussed above, the District’s coatings, solvent cleaning operations, each of the pollutants by adopting new commitment is to achieve the estimated oil and gas production wells, and control measures and programs found in total tonnage reductions of each livestock waste. Many of the adopted the Table 4–2A of the South Coast 2007 pollutant because specific control rules achieved more estimated AQMP (see South Coast 2007 AQMP, measures and actions as adopted may reductions in VOC, NOX and SOX than page 4–10 and CARB Staff Report on provide more or less reductions than were expected in the 2003 AQMP. A South Coast 2007 AQMP, p. 18), as estimated in the South Coast 2007 summary of these rules, which are updated in the 2011 Progress Report, AQMP. included in the baseline emissions Appendix E, Tables 2 through 5 and Finally, EPA notes that since the estimates for the South Coast 2007 from additional actions summarized in adoption of the South Coast 2007 AQMP, is provided in Table 1–2 of the the CARB Staff Report on the South AQMP, the District has already adopted South Coast 2007 AQMP. See South Coast 2007 AQMP (see CARB Staff and submitted many of the rules in the Coast 2007 AQMP, Chapter 1, Table 1– Report on South Coast 2007 AQMP, p. South Coast 2007 AQMP that help fulfill 2 and Chapter 4, page 4–6, and Table B– 17). The new control measures and the District’s enforceable commitments 1 in Appendix B of the TSD for today’s additional actions are estimated to for additional emission reductions of action. achieve more of the District’s emission NOX, VOC, direct PM2.5 and SOX in the In addition to the rules adopted for reduction commitments. They include South Coast area. Table 3 below the 2003 AQMP, the District has also new rules to regulate lubricants, summarizes the status of these new made new commitments in its South consumer products, non-RECLAIM rules.

TABLE 2—SOUTH COAST [Annual average day emissions in tons per day] a

SIP commitment by 2014 Pollutant Commit- ment Achieved Balance

VOC ...... 10.4 14.4 +4 .0 NOX ...... 10.8 7.60 ¥3 .2 PM2.5 ...... 2.9 1 .00 ¥1.9 SOX ...... 2.9 4 .01 +1 .11 Source: 2011 Progress Report, Appendix F, Table 1. The ‘‘Achieved’’ column in Table 2 reflects District rules submitted to EPA. Table 3 re- flects emissions reductions EPA can credit towards the attainment demonstration.

TABLE 3—STATUS OF DISTRICT SHORT- AND INTERMEDIATE-TERM CONTROL MEASURES CREDITED IN SOUTH COAST 2007 AQMP ATTAINMENT DEMONSTRATION

Emissions reduction Control Rule No. Title commitment in South Emissions reductions SIP status a measure Coast 2007 AQMP achieved

BCM–03 .... 445 Woodburning fireplaces and wood stoves .. 1.0 tpd PM2.5 ...... 1.0 tpd PM2.5; 0.44 74 FR 27716, 6/11/ tpd VOC; 0.06 tpd 09. NOX; 0.01 tpd SOX. BCM–05 .... 1138 Underfired charbroilers ...... 1.1 tpd PM2.5 ...... 66 FR 36170, 7/11/ 2001. CTS–01 ..... 1144 Metalworking fluids and direct-contact lubri- 1.9 tpd VOC ...... 3.9 tpd VOC ...... 75 FR 40726, 07/14/ cants. 10. CMB–01 .... 1147 NOX reductions from miscellaneous 3.5 tpd NOX ...... 3.5 tpd NOX ...... 75 FR 46845, 08/04/ sources. 10. CMB–02 .... 2002 Further SOX reductions from RECLAIM ..... 2.9 tpd SOX ...... 4.0 tpd SOX ...... 76 FR 30896, 5/27/ 11. FUG–02 .... 461 Emissions Reductions from Gasoline 3.7 tpd VOC ...... VOC reductions sub- 71 FR 18216, 4/11/ Transfer and Dispensing Facilities. stituted by Rule 06. 1143. FUG–04 .... 1149 Storage Tank and Pipeline Cleaning and None ...... 0.04 tpd VOC ...... 74 FR 67821, 12/21/ Degassing. 09. CMB–03 .... 1111 Further NOX reductions from space heaters 0.8 tpd NOX ...... 0.01 tpd NOX ...... 75 FR 46845, 8/4/10.

20 CARB uses the term ROG (reactive organic compounds). We will use the term VOC in this gases) where we use the term VOC (volatile organic notice to refer to both ROG and VOC.

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TABLE 3—STATUS OF DISTRICT SHORT- AND INTERMEDIATE-TERM CONTROL MEASURES CREDITED IN SOUTH COAST 2007 AQMP ATTAINMENT DEMONSTRATION—Continued

Emissions reduction Control Rule No. Title commitment in South Emissions reductions SIP status a measure Coast 2007 AQMP achieved

MCS–01 .... 1110.2 Liquid and gaseous fuels—stationary ICEs ...... 0.6 tpd NOX; 0.3 tpd 74 FR 18995, 4/27/ VOC. 09. FLX–02 ...... Refinery pilot program ...... 0.7 tpd VOC; 0.4 tpd VOC reductions sub- PM2.5. stituted by Rule 1143. MOB–05 .... 2251 AB923 LDV high emitter program ...... 0.8 tpd VOC; 0.4 tpd ...... No rule associated NOX. with this measure. MOB–06 ...... AB923 MDV high emitter program ...... 0.5 tpd VOC; 0.5 tpd ...... No rule associated NOX. with this measure.

Measures Proposed for EPA Action or Soon to be Proposed for EPA Action

MCS–05 .... 1127 Livestock waste ...... 0.8 tpd VOC. MCS–01 .... 1146 NOX from industrial, institutional, & com- 1.2 tpd NOX; 0.4 tpd ...... Proposed limited ap- mercial boilers, steam generators, and PM2.5; 2.0 tpd proval/limited dis- process heaters. VOC. approval signed June 21, 2011. MCS–01 .... 1146.1 NOX from small ind, inst, & comm’l boilers, ...... Proposed limited ap- steam gens, and proc. Htrs. proval/limited dis- approval signed June 21, 2011. CTS–04 ..... 1143 Consumer Paint Thinners and Multi-Pur- 2.1 tpd VOC ...... 9.7 tpd VOC ...... Proposed approval pose Solvents. signed June 23, 2011.

SIP Commitment vs. SIP-Creditable Emissions Reductions

SIP commitment—PM2.5 ...... 2.9 tpd ... Total SIP-creditable PM2.5 reductions ...... 1.2 tpd. SIP commitment—NOX ...... 10.8 tpd .. Total SIP-creditable NOX reductions ...... 4.2 tpd. SIP commitment—VOC ...... 10.4 tpd .. Total SIP-creditable VOC reductions ...... 14.4 tpd. SIP commitment—SOX ...... 2.9 tpd ... Total SIP-creditable SOX reductions ...... 4.01 tpd. a From 2011 Progress Report, Appendix F, Tables 2–5. EPA can only credit rules that have been adopted, submitted to EPA, and approved for credit in the SIP.

b. CARB’s RACM Analysis and Adopted movement activities and is EPA allows emission reduction credit Control Strategy implementing programs to reduce for measures that are granted a waiver Source categories for which CARB has emissions from ship auxiliary engines, from Federal preemption through the primary responsibility for reducing locomotives, harbor craft and new cargo CAA section 209 waiver process. See emissions in California include most handling equipment. In addition, the section II.F.4.a.i. of the TSD and EPA’s new and existing on- and off-road State has standards for lawn and garden final approval of the San Joaquin Valley engines and vehicles, motor vehicle equipment, recreational vehicles and 1-Hour Ozone Plan at 75 FR 10420, fuels, and consumer products. boats, and other off-road sources that 10424 (March 8, 2010). Generally, the Given the need for significant require newly manufactured equipment State’s baseline non-waiver measures emissions reductions from mobile and to be 80–98% cleaner than their have been approved by EPA into the SIP area sources to meet the NAAQS in uncontrolled counterparts. Id. Finally, and are fully creditable for meeting CAA California nonattainment areas, the the State has adopted many measures requirements. See TSD, Appendix A. State of California has been a leader in that focus on achieving reductions from CARB developed its proposed 2007 the development of some of the most in-use mobile sources that include more State Strategy after an extensive public stringent control measures nationwide stringent inspection and maintenance consultation process to identify 21 for on-road and off-road mobile sources (I/M) or ‘‘Smog Check’’ requirements, potential SIP measures. From this and the fuels that power them. In truck and bus idling restrictions, and process, CARB identified and addition, California has unique various incentive programs. committed to propose 15 new defined authority under CAA section 209 Appendix A of the TSD includes a list measures. These measures focus on (subject to a waiver by EPA) to adopt of all measures adopted by CARB cleaning up the in-use fleet as well as and implement new emission standards between 1990 and the beginning of increasing the stringency of emissions for many categories of on-road vehicles 2007. These measures, reductions from standards for a number of engine and engines, and new and in-use off- which are reflected in the Plan’s categories, fuels, and consumer road vehicles and engines. baseline inventories, fall into two products. Many, if not most, of these California’s emissions standards have categories: Measures that are subject to measures are being proposed for reduced new car emissions by a waiver of Federal pre-emption under 99 percent and new truck emissions by CAA section 209 (section 209 waiver 21 More information on this public process including presentations from the workshops and 90 percent from uncontrolled levels. measures or waiver measures) and those symposium that preceded the adoption of the 2007 2007 State Strategy, p. 37. The State is for which the State is not required to State Strategy can be found at http:// also working with EPA on goods obtain a waiver (non-waiver measures). www.arb.ca.gov/planning/sip/2007sip/2007sip.htm.

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adoption for the first time anywhere in sources through both regulations and status. Table 5 provides the State’s the nation. They build on CARB’s incentive programs. See Appendix A of current estimate of the emissions already comprehensive program the TSD. Table 4 below lists the defined reductions in the South Coast described above that addresses measures in the 2007 State Strategy and nonattainment area from these emissions from all types of mobile their current adoption and approval measures.

TABLE 4—2007 STATE STRATEGY DEFINED MEASURES SCHEDULED FOR CONSIDERATION AND CURRENT STATUS (UPDATED APRIL 2011)

State measure Expected action year Current status

Defined Measures in 2007 State Strategy

Smog Check Improvements ...... 2007–2009 ...... Elements approved 75 FR 38023 (July 1, 2010). 22 Expanded Vehicle Retirement (AB118) ...... 2007 ...... Adopted CARB June 2009; Bureau of Automotive Re- pair September 2010. Modifications to Reformulated Gasoline Program ...... 2007 ...... Approved, 75 FR 26653 (May 2, 2010). Cleaner In-use Heavy Duty Trucks ...... 2007, 2008, 2010 ...... Proposed approval signed June 29, 2011. Auxiliary Ship Cold Ironing and Other Clean Tech- 2007–2008 ...... Adopted December 2007. nologies. Cleaner Main Ship Engines and Fuels ...... Fuel: 2008–2011 ...... Proposed approval signed June 29, 2011. Engines: 2008 ...... Port Truck Modernization ...... 2007, 2008, 2010 ...... Adopted December 2007 and December 2008. Accelerated Introduction of Cleaner Locomotives ...... 2008 ...... Implementation 2012. Clean Up Existing Harbor Crafts ...... 2007, 2010 ...... Adopted November 2007, revised June 2010. Cleaner In-Use Off-Road Engines ...... 2007, 2010 ...... Waiver action pending. New Emissions Standards for Recreational Boats ...... 2013 ...... Partial adoption, July 2008; additional action expected 2013. Expanded Off-Road Recreational Vehicle Emissions 2013 ...... Adopted November 2008; additional action expected Standards. 2013. Enhanced Vapor Recovery for Above Ground Storage 2008. Tanks. Additional evaporative emissions standards ...... 2009, 2013. Consumer Products Program (I and II) ...... 2008, 2009, 2011 ...... Phase I approved November 4, 2009, 74 FR 57074; Phase II approved May 12, 2011, 76 FR 27613. Sources: 2009 State Strategy Update, p. 23 and 2011 Progress Report, Table 1, p. 8. Additional information from http://www.ca.arb.gov.

TABLE 5—CURRENTLY CREDITABLE EMISSIONS REDUCTIONS FROM DEFINED MEASURES IN THE 2007 STATE STRATEGY FOR THE SOUTH COAST, AS REVISED APRIL 2011 (TONS PER DAY 2014)

State measure Direct PM2.5 NOX VOC SOX

Smog Check Improvements (BAR) ...... 0 .3 2 .6 8 .6 0 Cleaner In-Use Heavy-Duty Trucks ...... 2.6 18 .6 3 .3 0 Cleaner In-Use Off-Road Equipment (> 25 hp) ...... 0 0.5 0.1 0 Ship Auxiliary Engine Cold Ironing & Clean Tech...... 0.1 8.1 0.2 0.3 Cleaner Main Ship Engines and Fuel—Main Engines ...... 3.5 17 .6 0 .5 37 Clean Up Existing Harbor Craft ...... 0.2 4.1 0.1 0

Source: 2011 Progress Report, Appendix E, pp. 2 and 3. Only defined measures with direct PM2.5, VOC, SOX and/or NOX, reductions in the South Coast are shown here.

In addition to the State’s PM2.5, and 20 tpd of SOX (see 2007 State Strategy is to achieve the total emission commitments to propose defined new Strategy, p. 63 and CARB Resolution reductions necessary to attain the federal measures, the 2007 State Strategy 07–28, Attachment B, p. 6). The nature standards, which would be the aggregate of includes an enforceable commitment for of this commitment is described in the all existing and proposed new measures emissions reductions sufficient, in State Strategy as follows: combined. Therefore, if a particular measure combination with existing measures and does not get its expected emission ‘‘The total emission reductions from the reductions, the State still commits to the District’s commitments, to attain the new measures necessary to attain the federal achieving the total aggregate emission PM2.5 NAAQS in the South Coast standards are an enforceable State reductions, whether this is realized through nonattainment area by the requested commitment in the SIP. While the proposed additional reductions from the new measures attainment date of April 5, 2015. For the State Strategy includes estimates of the or from alternative control measures or South Coast, these emission reductions emission reductions from each of the incentive programs. If actual emission commitments are to achieve 152 tpd of individual new measures, it is important to decreases occur in any air basin for which NOX, 46 tpd of VOC, 9 tpd of direct note that the commitment of the State emission reduction commitments have been

22 California Assembly Bill 2289, passed in 2010, and test stations for inspection and certification not include reductions from AB 2289 requires the Bureau of Automotive Repair to direct effective 2013. Reductions shown for the improvements. See CARB Progress Report older vehicles to high performing auto technicians SmogCheck program in the 2011 Progress Report do supplement, attachment 5.

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made that are greater than the projected provide for the implementation of The requirements for the first two emissions reductions from the adopted RACM/RACT as required by CAA parts are described in the sections on measures in the State Strategy, the actual section 172(c)(1) and 40 CFR 51.1010. emissions inventories and RACM/RACT emission decreases may be counted toward Because they will strengthen the meeting ARB’s total emission reduction above and in the sections on air quality commitments.’’ California SIP, we are also proposing to modeling, PM2.5 precursors, extension approve, the District’s commitments to of attainment date, and attainment CARB Resolution 07–28 (September 27, adopt and implement specific control demonstrations that follow immediately 2007), Appendix B, p. 3. measures on the schedule identified in below. Requirements for the third and c. The Local Jurisdiction’s RACM Tables 2–5 of Appendix E in the 2011 fourth parts are described in the Analysis Progress Report, to the extent that these sections on the control strategy and the commitments have not yet been The local jurisdiction’s RACM contingency measures, respectively. fulfilled, and to achieve specific analysis was conducted by the aggregate emissions reductions of direct 2. Air Quality Modeling in the South metropolitan planning organization PM Coast 2007 AQMP (MPO) for the South Coast region, the 2.5, NOX, VOC and SOX by specific The procedures for modeling Southern California Association of years as given in Table 1 of the 2011 attainment of the PM NAAQS as part Governments (SCAG). This analysis, Progress Report (and Table 2 in today’s 2.5 of an attainment SIP are contained in which focused on transportation control proposal). We are also proposing to approve EPA’s ‘‘Guidance on the Use of Models measures (TCMs), and the results of this CARB’s commitments to propose certain and Other Analyses for Demonstrating analysis are described in Appendix IV– defined measures, as given on Table Attainment of Air Quality Goals for the C of the South Coast 2007 AQMP. The B–1 in Appendix B of the 2011 Progress 8–Hour Ozone and PM2.5 NAAQS and TCMs in the South Coast 2007 AQMP Report, and to achieve total aggregate Regional Haze.’’ (Guidance).23 A brief are derived from TCM projects in the emissions reductions necessary to attain description of the modeling used to 2006 SCAG Regional Transportation the 1997 PM standards in the South support South Coast’s attainment Improvement Program (RTIP). This 2.5 Coast nonattainment area, whether these demonstration follows. For more analysis, described beginning on page reductions are realized from the new detailed information about the 49 of Appendix IV–C of the South Coast measures, alternative control measures, modeling, please refer to the TSD 2007 AQMP, resulted in extensive local incentive programs, or other actual associated with this rulemaking, which government commitments to implement emissions decreases. See CARB can be found in the docket for today’s programs to reduce auto travel and Resolution 07–28 (September 27, 2007), action. improve traffic flow. South Coast 2007 Appendix B, p. 3. This commitment is Air quality modeling is used to AQMP page 6–6 and Appendix IV–C. to aggregate emissions reductions of 152 establish emission attainment targets, a SCAG also provided reasoned tpd of NO , 46 tpd of VOC, 9 tpd of combination of emissions of PM2.5 and justifications for any measures that it X direct PM , and 20 tpd of SO in the PM2.5 precursors that the nonattainment did not adopt. Attachment A to 2.5 X South Coast by 2014 (see page 20 of the area can accommodate without Appendix IV–C contains an extensive 2009 State Strategy Status Report). exceeding the NAAQS, and to assess list of TCMs in process and newly whether the proposed control strategy programmed TCMs. The enforceable C. Attainment Demonstration will result in attainment of the NAAQS commitment from SCAG and the 1. Requirements for Attainment by the applicable attainment date. Air transportation agencies was to fund and Demonstration quality modeling is performed for a base implement projects in the first two years year and compared to air quality CAA section 172 requires a State to of the 2006 Regional Transportation monitoring data to determine model submit a plan for each of its Improvement Program (RTIP). performance. Once the performance is nonattainment areas that demonstrates determined to be acceptable, future year 3. Proposed Actions on RACM/RACT attainment of the applicable ambient air emission inventory changes are Demonstration and Adopted Control quality standard as expeditiously as simulated to determine the relationship Strategy practicable but no later than the between emission reductions and We propose to find that there are, at specified attainment date. Under the changes in ambient air quality this time, no additional reasonably PM implementation rule, this 2.5 throughout the nonattainment area. available measures that individually or demonstration should consist of four The attainment demonstration for the collectively would advance attainment parts: South Coast nonattainment area is based of the PM NAAQS in the South Coast (1) Technical analyses that locate, 2.5 on the CAMx model using the ‘‘one nonattainment area by one year or more. identify, and quantify sources of atmosphere’’ approach comprised of the This proposal is based on our review of emissions that are contributing to carbon bond IV (CB–IV) gas phased potential RACM/RACT in the revised violations of the PM NAAQS; 2.5 chemistry and a static two-mode 2007 South Coast AQMP and the 2007 (2) Analyses of future year emissions particle size aerosol.24 State Strategy; the District’s and State’s reductions and air quality improvement CAMx annual adopted control strategies, including resulting from already-adopted national, average PM2.5 modeling simulations their commitments to adopt measures State, and local programs and from were generated for 2005 and 2014 and their progress in meeting those potential new State and local measures baseline emissions scenarios and for a commitments; and our proposed to meet the RACT, RACM, and RFP 2014 controlled emissions scenario by concurrence (discussed below in section requirements in the area; 23 The guidance is available at http:// V.C.3) with the State’s determination (3) Adopted emissions reduction www.epa.gov/ttn/scram/guidance_sip.htm and in that SOX, NOX, and VOC are, and measures with schedules for the docket for today’s action. ammonia is not, attainment plan implementation; and 24 CAMx is the Comprehensive Air Quality Model precursors per 40 CFR 51.1002(c). (4) Contingency measures required with extensions, an Eulerian photochemical under section 172(c)(9) of the CAA. dispersion model that allows for integrated ‘‘one- Therefore, we propose to find that the atmosphere’’ assessments of gaseous and particulate relevant portions of the South Coast See 40 CFR 51.1007; 72 FR 20586, at air pollution (ozone, PM2.5, PM10, air toxics) over 2007 AQMP and the 2007 State Strategy 20605. many scales ranging from sub-urban to continental.

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the District. District staff compared the nonattainment SIP. Once a proposed decreases in the projected 2014 baseline base year model output to speciated control strategy was developed, the due to both methodology changes (e.g., particulate data measured in 2005 as District then used the photochemical changes to construction equipment part of the Multiple Air Toxics III modeling to verify that the projected emissions factors) and the revised (MATES–III) program. Model emissions reductions would result in economic forecasts are 10 percent for specifications, such as boundary attainment of the 1997 PM2.5 standards NOX, 2 percent for direct PM2.5, conditions, domain size, and resolution, throughout the South Coast 2 percent for VOC, and a 30 percent 28 meet EPA criteria and are discussed in nonattainment area by the target increase for SOX. The effect of the the TSD. Model performance for total attainment date of 2014. The estimated revisions in the target year as compared mass (the sum of specific individual carrying capacities for the South Coast to the base year are about the same for species), as well as for specific nonattainment area are included in direct PM2.5, and somewhat larger for 26 27 individual species, is adequate and is Table 6. NOX. The overall effect of the inventory discussed in the TSD. revisions is thus to increase the The District’s attainment analysis TABLE 6—EMISSIONS CARRYING CA- emission reductions from base year to follows EPA’s guideline technique of PACITY ESTIMATES FOR THE SOUTH attainment year, in a relative sense. applying component-specific relative COAST NONATTAINMENT AREA FOR Likewise, the revisions would tend to response factors (RRF) to monitored PM2.5 ATTAINMENT make the relative reduction factors data throughout the South Coast (factors used to scale the modeling [Tons/day, based on planning inventory] nonattainment area. A RRF is the ratio results) lower, decreasing the projected of the model’s future to current PM2.5 concentrations in the attainment PM2.5 NOX SOX VOC (baseline) predictions at a monitor. year and effectively making the Future PM2.5 concentrations are 87 454 19 469 attainment demonstration over-estimate estimated at existing monitoring sites by the level of emissions reductions multiplying a modeled RRF at the grid We are proposing to approve the air needed to attain. Based on model cell locations of each monitor by the quality modeling demonstration in the sensitivity results provided by CARB, observation-based, monitor-specific, South Coast 2007 AQMP as meeting the EPA estimates that ambient ‘‘baseline’’ design value. A separate RRF requirements of the CAA consistent concentrations would be slightly lower is calculated for each of the PM2.5 with EPA guidance. We provide further in the attainment year due to the precursors. Future PM2.5 design values discussion in the TSD. emission inventory revisions. EPA were estimated by District staff at therefore concludes that the attainment Effect of Inventory Changes on the Air existing monitoring sites throughout the demonstration remains valid, despite Quality Modeling and Attainment South Coast nonattainment area by the emission inventory changes. Demonstrations multiplying modeled RRFs for each 3. PM monitor times the observed As discussed above in section V.A., 2.5 Precursors Addressed in the ‘‘component-specific design value.’’ The CARB has recently updated the South Coast 2007 AQMP inventories for several mobile source future PM2.5 design values were then EPA recognizes NOX, SO2, VOCs, and compared to the annual and 24-hour categories for both the base and future ammonia as the main precursor gases NAAQS to demonstrate attainment at years as well as revised the economic associated with the formation of forecasts on which the future each site. The maximum 2014 predicted secondary PM2.5 in the ambient air. μ 3 inventories were based. Ideally, new PM2.5 annual design value is 15.0 g/m These gas-phase PM2.5 precursors or lower.25 attainment demonstration modeling undergo chemical reactions in the The District also performed the would be performed to evaluate the atmosphere to form secondary recommended unmonitored area effect of these updates and revisions; particulate matter. Formation of however, remodeling is a substantial analysis and it indicated that there were secondary PM2.5 depends on numerous no additional nonattainment problems undertaking and would not necessarily factors including the concentrations of in unmonitored areas. The future PM2.5 change the basic conclusions of the precursors; the concentrations of other design values were also compared to the existing attainment demonstration gaseous reactive species; atmospheric 24-hour PM2.5 NAAQS to demonstrate analysis. conditions including solar radiation, attainment at each site. The maximum Relative to emissions in the South temperature, and relative humidity; and Coast 2007 AQMP, the decreases in the predicted 2014 24-hour PM2.5 design the interactions of precursors with value at any site is 56.6 μg/m3; this is base year 2002 emissions inventory due preexisting particles and with cloud or to the inventory updates are about lower than the 24-hour PM2.5 NAAQS of fog droplets. 72 FR 20586, at 20589. 65 μg/m3. EPA guidance also 4 percent for NOX and 5 percent for direct PM emissions. CARB Progress As discussed previously, a state must recommends the use of supplemental 2.5 submit emissions inventories for each of data analyses to support the air quality Report supplement, Attachment 1. For the 2014 attainment target year, the the four PM2.5 precursor pollutants. modeling. The District used air quality 72 FR 20586, at 20589 and 40 CFR trends and emission inventory trends as 26 ‘‘Carrying capacity’’ is defined as the maximum 51.1008(a)(1). However, the overall ‘‘weight of evidence’’ to support the air contribution of different precursors to quality modeling for the attainment level of emissions that enable the attainment and maintenance of an ambient air quality standard for PM2.5 formation and the effectiveness of demonstration. a pollutant. (see South Coast 2007 AQMP, page 5– alternative potential control measures The District used its air quality 27.) will vary by area. Thus, the precursors modeling to establish emissions 27 The CARB Staff Report for the South Coast that a state should regulate to attain the reduction targets to be used in 2007 AQMP presents a slightly different emissions PM NAAQS could also vary to some developing the control strategy for the carrying capacity which relies more heavily on 2.5 reductions of primary PM2.5 and less heavily on extent from area to area. 72 FR 20586, reductions of precursors to PM2.5. The Staff Report’s 25 at 20589. See 40 CFR part 50 Appendix N, 4.1(a). A emission carrying capacity estimates are PM2.5—86 3 predicted design value of 15.04 μg/m or lower is tons/day, NOX—460 tons/day, SOX—20 tons/day, 28 considered modeled attainment of the annual and VOC—474 tons/day (see CARB Staff Report on By 2014, SOX emissions reach the attainment standard. the South Coast AQMP, page ES–3). target due to adopted State and District rules.

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In the PM2.5 implementation rule, (‘‘primary particles’’), or formed through and feasibility of pollution control EPA did not make a finding that all atmospheric chemical reactions of measures.’’ potential PM2.5 precursors must be precursor chemicals (‘‘secondary Because the effective date of controlled in each specific particles’’). Examples of secondary designations for the 1997 PM2.5 nonattainment area. See 72 FR 20586, at particles include sulfates, nitrates, and standards was April 5, 2005 (70 FR 944), 20589. Instead, for the reasons complex carbon compounds formed the initial attainment date for PM2.5 explained in the rule’s preamble, a state from reactions of NOX, SOX, VOC, and nonattainment areas is as expeditiously must evaluate control measures for ammonia. The attainment as practicable but not later than April 5, sources of SO2 in addition to sources of demonstration for the South Coast PM2.5 2010. For any areas that are granted a direct PM2.5 in all nonattainment areas. nonattainment area addresses full five-year attainment date extension 40 CFR 51.1002(c) and (c)(1). A state ammonium nitrate and ammonium under section 172, the attainment date must also evaluate control measures for sulfate because they represent a would be no later than April 5, 2015.

sources of NOX unless the State and/or dominant fraction of PM2.5 components Section 51.1004 of the PM2.5 EPA determine that control of NOX in this area and are formed through implementation rule addresses the emissions would not significantly secondary reactions of the precursors attainment date requirement. Section 51.1004(b) requires a State to submit an reduce PM2.5 concentrations in the NOX, SOX, VOC and ammonia. The attainment demonstration justifying its specific nonattainment area. 40 CFR District’s analysis indicates that SOX 51.1002(c)(2). In contrast, EPA has reductions followed by directly-emitted proposed attainment date and provides that EPA will approve an attainment determined in the PM2.5 implementation PM2.5 and NOX reductions provide the date when we approve that rule that a state does not need to address greatest ambient PM2.5 reductions. VOC controls for sources of VOC and reductions can also contribute to demonstration. States that request an extension of the ammonia unless the state and/or EPA improving ambient PM2.5 concentrations make a technical demonstration that and will occur concurrently as a result attainment date under CAA section controls on such sources would of the District’s 8-hour ozone NAAQS 172(a)(2) must provide sufficient information to show that attainment by significantly contribute to reducing strategy.29 The PM implementation 2.5 April 5, 2010 is impracticable due to the PM2.5 concentrations in the specific rule allows States or EPA to evaluate severity of the nonattainment problem nonattainment area at issue. 40 CFR which PM precursors should be 2.5 in the area and the lack of available and 51.1002(c)(3) and (4). Such a precursors for regulatory purposes in a feasible control measures to provide for demonstration is required ‘‘if the particular nonattainment area, based on faster attainment. 40 CFR 51.1004(b). administrative record related to the facts and circumstances of such States must also demonstrate that all development of its SIP shows that the area. SCAQMD has elected to consider RACM and RACT for the area are being presumption is not technically justified VOCs as regulatory precursors for the implemented to bring about attainment for that area.’’ 40 CFR 51.1002(c)(5). purpose of this SIP, based on their of the standard by the most expeditious ‘‘Significantly contributes’’ in this modeling analysis, which considered alternative date practicable for the area. context means that a significant the sensitivity of PM formation to reduction in emissions of the precursor 2.5 72 FR 20586, at 20601. VOC emission reduction. EPA agrees For urban areas nationwide, the South from sources in the area would be that the District’s determination to projected to provide a significant Coast nonattainment area has the consider VOC as a precursor for this SIP second highest average annual mean reduction in PM2.5 concentrations in the is appropriate in this nonattainment area. 72 FR 20586 at 20590. Although PM2.5 concentration (ranking only area. EPA did not establish a quantitative test behind the San Joaquin Valley in Starting in 2011, the PM2.5 for determining what constitutes a California for the 1997 PM2.5 standards). implementation rule requires that states significant change, EPA noted that even Annual PM2.5 concentrations recorded must also address condensable relatively small reductions in PM over the last few years at the Mira Loma 2.5 particulate matter (CPM), including levels are estimated to result in monitoring site continue to exceed the estimates of CPM in emissions 30 worthwhile public health benefits. Id. 1997 PM2.5 NAAQS. The PM2.5 EPA further explained that a technical inventories, modeling, and control problem in the South Coast is complex, strategies. demonstration to reverse the caused by both direct PM2.5 and presumption for NOX, VOC, or ammonia 4. Extension of the Attainment Date secondary PM2.5, and compounded by in any area could consider the the topographical and meteorological CAA section 172(a)(2) provides that emissions inventory, speciation data, conditions for the area that are very an area’s attainment date ‘‘shall be the modeling information, or other special conducive to the formation and date by which attainment can be studies such as monitoring of additional concentration of PM2.5 particles. South compounds, receptor modeling, or achieved as expeditiously as Coast 2007 AQMP, chapter 4. special monitoring studies. 72 FR 20586 practicable, but no later than 5 years As discussed in section V.B.2. above, at 20596–20597. These factors could from the date such area was designated the District’s strategy for attaining the nonattainment * * *, except that the indicate that the emissions or ambient PM2.5 standard relies on reductions of Administrator may extend the concentration contributions of a directly-emitted PM2.5 as well as the attainment date to the extent the precursor, or the sensitivity of ambient PM2.5 precursor pollutants NOX, VOC, Administrator determines appropriate, concentrations to changes in precursor and SOX. The South Coast emissions, differs for a specific for a period no greater than 10 years nonattainment area needs significant from the date of designation as nonattainment area from the reductions in PM2.5, NOX, VOC, and nonattainment considering the severity presumption EPA established for that SOX to demonstrate attainment. Further of nonattainment and the availability precursor in the PM2.5 implementation reducing these pollutants is challenging, rule. because the State and District have In the South Coast nonattainment 29 See page 5–17 of Chapter 5 of the South Coast already adopted stringent control 2007 AQMP. We approved the South Coast RACT area, PM2.5 can be directly emitted, such SIP on December 18, 2008 (see 73 FR 76947) as measures for most as from road dust, diesel soot, complying with the relevant CAA requirements for combustion products, and other sources RACT SIPs for 8-hour ozone. 30 See footnote 2.

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sources of direct PM2.5, NOX, VOC, and Coast nonattainment area and the need for new emissions standards under the SOX emissions. Moreover, attainment in to conduct significant public outreach if State and Federal mobile source control the South Coast nonattainment area applicable control approaches are to be programs. depends on emissions reductions that effective, EPA agrees with the District EPA also expects that CARB and the offset the emissions increases associated and CARB that the South Coast 2007 District will continue to investigate with projected increases in population, AQMP reflects expeditious opportunities to accelerate progress as economic growth, and goods movement. implementation of the programs during new control opportunities arise, and The direct PM2.5 reductions are the 2008–2014 time frame. EPA also that the agencies will promptly adopt achieved primarily from open burning agrees that the implementation schedule and expeditiously implement any new and residential wood combustion for enhanced stationary source controls measures found to be feasible in the control measures. These types of control is expeditious, taking into account the future. measures present special time necessary for purchase and As discussed in section V.B.3 above, implementation challenges (e.g., the installation of the required control large number of individuals subject to we are proposing to approve the RACM/ technologies. The District’s control RACT demonstration in the South Coast regulation and the difficulty of applying strategies are discussed in greater detail conventional technological control 2007 AQMP. As discussed below in in Chapter 4 of the South Coast 2007 section V.C.6., we are also proposing to solutions). NOX reductions come largely AQMP, and in section V.B.2 above. from District rules for fuel combustion approve the attainment demonstration sources, and from the State’s mobile In addition, the State has adopted in the SIP. Based on these proposed source rules. VOC reductions come from standards for many categories of on-road approvals, EPA is proposing to grant an District rules governing the petroleum and off-road vehicles and engines, extension of the attainment date for the industry, as well as consumer products gasoline and diesel fuels, as well as 1997 PM2.5 standards in the South Coast rules at both the State and local level. improvements to California’s vehicle to April 5, 2015 pursuant to CAA SOX reductions identified in the plan inspection and maintenance program, section 172(b)(2) and 40 CFR 51.1004(b). come from District rules such as and programs requiring the retrofitting 5. Attainment Demonstration RECLAIM, and State measures related to and replacement of in-use trucks, buses, ships. and off-road equipment. The State is Table 7 below summarizes the Because of the necessity of obtaining implementing these rules and programs reductions that are relied on in the additional emissions reductions from as expeditiously as practicable, and it is South Coast 2007 AQMP to demonstrate these source categories in the South not feasible to accelerate the schedule attainment by April 5, 2015.

TABLE 7—SUMMARY OF EMISSIONS REDUCTION PROGRESS FOR SOUTH COAST’S PM2.5 ATTAINMENT DEMONSTRATION (TONS PER DAY, TPD), UPDATED APRIL 2011

NOX VOC Direct PM2.5 SOX

2002 baseline (2011 SIP Revision, p. 9 ...... 1093 844 99 53 2014 attainment targets (ARB staff Report for South Coast 2007 AQMP) * .. 460 474 86 20 2014 baseline (2011 SIP Revision, Appendix E, p. 2) ** ...... 589 518 95 61 2014 remaining emissions after ‘‘adopted controls’’ (2011 SIP Revision, Ap- pendix E, p. 2) *** ...... 530 485 87 20 Remaining emissions reduction/enforceable commitment **** ...... 70 (11%) 11 (3%) 1 (8%) 0 0% * The attainment targets have not changed from the November 22, 2010 proposal. ** The 2014 baseline is revised to reflect new estimates which take into account the impact of the economic recession on and changes in in- ventory methodologies for diesel trucks, goods movement and construction equipment. See 2011 Progress Report, Appendix E, page 2, ‘‘South Coast Air Basin 2014 Progress to Date on ARB Rules’’ table, ‘‘New 2014 Baseline’’ numbers. *** The 2014 remaining emissions number is what remains after crediting the reductions from ‘‘adopted controls.’’ By ‘‘adopted controls’’ we mean State or district control measures that EPA has approved or proposed to approve into the SIP, or state mobile source measures that are subject to a CAA section 209 waiver. See section V.B.2.b of this notice. In separate actions, EPA has recently proposed to approve several of the measures listed in the 2011 Progress Report SIP Revision, Appendix E tables (e.g., CARB’s diesel truck rules and the Ocean-going Vessels fuel rule). **** This row reflects the State’s aggregate emissions reduction commitment, including the 10 tpd NOX federal assignment. See 2011 Progress Report, p. 5.

As shown in this table, the majority the TSD. The remaining reductions a. Enforceable Commitments of the emissions reductions that the needed for attainment are to be achieved As shown above, measures already State projects are needed for PM2.5 by the District’s and CARB’s attainment in the South Coast by April commitments to reduce emissions in the adopted by the District and CARB (both 5, 2015 come from baseline reductions. South Coast nonattainment area. Since prior to and as part of the South Coast These baseline reductions include not the submittal of the South Coast 2007 2007 AQMP) provide the majority of emissions reductions the State projects only the benefit of numerous adopted AQMP and the 2007 State Strategy, are needed to demonstrate attainment. District and State measures which SCAQMD and CARB have adopted The balance of the needed reductions is generally have been approved by EPA measures (summarized in Table 8 either through the SIP process or the in the form of enforceable commitments below) that can be credited towards by the District and CARB. CAA section 209 waiver process but reducing the aggregate emissions also the effect of the recent economic reductions in the enforceable The CAA allows approval of recession and revised emission factors commitments. enforceable commitments that are and activity data on projected future limited in scope where circumstances inventories. See 2011 Progress Report, exist that warrant the use of such Appendix E and Appendices A and B of commitments in place of adopted

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measures.31 Once EPA determines that to stringent rules prior to the represent a limited portion of the total circumstances warrant consideration of development of the 2007 State Strategy emissions reductions needed to meet an enforceable commitment, EPA and the South Coast 2007 AQMP, the statutory requirement for attainment considers three factors in determining leaving fewer and more technologically in the South Coast nonattainment area whether to approve the CAA challenging opportunities to reduce and therefore satisfy the first factor. requirement that relies on the emissions. In the South Coast 2007 Overall, the level of reductions enforceable commitment: (a) Does the AQMP and the 2009 revisions to the remaining as commitments is commitment address a limited portion 2007 State Strategy, the District and approximately within the 10 percent of the CAA requirement; (b) is the state CARB identified potential control range that EPA has historically accepted capable of fulfilling its commitment; measures that could achieve the in approving attainment and (c) is the commitment for a additional emissions reductions needed demonstrations.34 reasonable and appropriate period of for attainment. However, the timeline ii. The State is Capable of Fulfilling Its time.32 needed to develop, adopt, and Commitment With respect to the South Coast 2007 implement these measures went well AQMP and 2007 State Strategy, beyond the April 5, 2008 33 CAA For the second factor, we consider circumstances warrant the consideration deadline to submit the PM2.5 plan. As whether the State and District are of enforceable commitments as part of discussed above and below, since 2007, capable of fulfilling their commitments. the attainment demonstration for the the District and State have made As discussed above, CARB has adopted South Coast nonattainment area. As progress in adopting measures to meet and submitted a 2009 State Strategy shown in Table 7 above, the majority of their commitments, but have not yet Status Report and a 2011 Progress emission reductions that are needed to completely fulfilled them. Given these Report, which update and revise the demonstrate attainment and RFP in the circumstances, the 2007 AQMP and the 2007 State Strategy. These reports show South Coast nonattainment area come 2007 State Strategy’s reliance on that CARB has made significant progress from rules and regulations that were enforceable commitments is warranted. in meeting its enforceable commitments adopted prior to the AQMP’s submittal We now consider the three factors EPA for the South Coast and several other in November 2007, i.e., they come from uses to determine whether the use of nonattainment areas in California. the baseline measures. enforceable commitments in lieu of Additional ongoing programs that As a result of these already-adopted adopted measures to meet CAA address locomotives, recreational boats, State and District measures, most planning requirements is approvable. and other measures have yet to be sources in the South Coast quantified but are expected to reduce nonattainment area were already subject i. The Commitment Represents a NOX and direct PM2.5 emissions in the Limited Portion of Required Reductions South Coast by 2014. See 2011 Progress 31 Commitments approved by EPA under section For the first factor, we look to see if 110(k)(3) of the CAA are enforceable by EPA and Report, Appendix E, page 2. citizens under, respectively, sections 113 and 304 the commitment addresses a limited The District has already exceeded its of the CAA. In the past, EPA has approved portion of a statutory requirement, such commitment for reducing VOC and SOX enforceable commitments and courts have enforced as the amount of emissions reductions emissions and is working to meet the these actions against states that failed to comply needed in a nonattainment area. with those commitments: See, e.g., American Lung commitment to reduce NOX and directly Ass’n of N.J. v. Kean, 670 F. Supp. 1285 (D.N.J. As shown in Table 7, the remaining emitted PM2.5. See Tables 2 and 3. The 1987), aff’d, 871 F.2d 319 (3rd Cir. 1989); NRDC, portion of the enforceable commitments District is also continuing to work to Inc. v. N.Y. State Dept. of Env. Cons., 668 F. Supp. in the South Coast 2007 AQMP and the identify and adopt additional measures 848 (S.D.N.Y. 1987); Citizens for a Better Env’t v. revised 2007 State Strategy are 70 tpd Deukmejian, 731 F. Supp. 1448, recon. granted in that will reduce emissions. par, 746 F. Supp. 976 (N.D. Cal. 1990); Coalition for NOX, 11 tpd VOC and 1 tpd direct PM2.5 Beyond the rules discussed above, Clean Air v. South Coast Air Quality Mgt. Dist., No. after accounting for measures that are both CARB and the District have well- CV 97–6916–HLH, (C.D. Cal. Aug. 27, 1999). either approved or proposed for funded incentive grant programs to Further, if a state fails to meet its commitments, approval and revisions to the future year EPA could make a finding of failure to implement reduce emissions from the on- and off- the SIP under CAA Section 179(a), which starts an baseline inventories resulting from road engine fleets. Reductions from 18-month period for the State to correct the non- changes to the plan’s economic forecasts several of these programs have yet to be implementation before mandatory sanctions are and other factors. When compared to quantified and/or credited in the imposed. CAA section 110(a)(2)(A) provides that each SIP ‘‘shall include enforceable emission the total reductions needed by 2014 for attainment demonstration. Finally, we limitations and other control measures, means or PM2.5 attainment in the South Coast note that the South Coast has techniques * * * as well as schedules and nonattainment area on a per-pollutant experienced significant improvements timetables for compliance, as may be necessary or basis, these remaining commitments appropriate to meet the applicable requirement of in its PM2.5 air quality in the past few the Act.’’ Section 172(c)(6) of the Act, which represent approximately 11 percent of years. applies to nonattainment SIPs, is virtually identical the NOX reductions, 3 percent of the Given the evidence of the State’s and to section 110(a)(2)(A). The language in these VOC reductions and 8 percent of the District’s efforts to date and their sections of the CAA is quite broad, allowing a SIP direct PM2.5 reductions needed to attain to contain any ‘‘means or techniques’’ that EPA continuing efforts to reduce emissions, determines are ‘‘necessary or appropriate’’ to meet the 1997 PM2.5 standards in the South we find that the State and District are CAA requirements, such that the area will attain as Coast nonattainment area. capable of meeting their enforceable expeditiously as practicable, but no later than the We find that the reductions remaining commitments to achieve the necessary designated date. Furthermore, the express as enforceable commitments in the 2007 allowance for ‘‘schedules and timetables’’ reductions needed to attain the 1997 demonstrates that Congress understood that all AQMP and the 2007 State Strategy PM2.5 standards in the South Coast required controls might not have to be in place nonattainment area by its proposed before a SIP could be fully approved. 33 The 2007 State Strategy and the South Coast attainment date of April 5, 2015. 32 The U.S. Court of Appeals for the Fifth Circuit 2007 AQMP were developed to address both the upheld EPA’s interpretation of CAA sections 1997 PM2.5 NAAQS and the 1997 8-hour ozone 34 110(a)(2)(A) and 172(c)(6) and the Agency’s use and NAAQS. The 8-hour ozone SIPs were due in See, for example, our approval of the SJV PM10 application of the three factor test in approving November 2007, and the development and adoption Plan at 69 FR 30005 (May 26, 2004), the SJV 1-hour enforceable commitments in the 1-hour ozone SIP of these plans was timed to coordinate with this ozone plan at 75 FR 10420 (March 8, 2010), and the for Houston-Galveston. BCCA Appeal Group et al. submittal date. 2007 State Strategy, p. 1, and South Houston-Galveston 1-hour ozone plan at 66 FR v. EPA et al., 355 F.3d 817 (5th Cir. 2003). Coast 2007 AQMP, p. ES–3. 57160 (November 14, 2001).

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iii. The Commitment is for a Reasonable First, we must find that the and feasibility of control measures and, and Appropriate Period of Time demonstration’s technical bases, therefore, to grant the State’s request to For the third and final factor, we including the emissions inventories and extend the attainment date in the South consider whether the commitment is for air quality modeling, are adequate. As Coast nonattainment area to April 5, a reasonable and appropriate period of discussed above in section V.A and 2015. For the foregoing reasons, we are V.C.2, we are proposing to approve both time. proposing to approve the attainment the emissions inventories and the air In order to meet the commitments to demonstration in the South Coast 2007 quality modeling on which the South reduce emissions to the levels needed to AQMP. Coast 2007 AQMP’s attainment attain the 1997 PM standards in the 2.5 demonstration and other provisions are D. Reasonable Further Progress South Coast nonattainment area, the based. Demonstration South Coast 2007 AQMP and the 2007 Second, we must find that the SIP State Strategy included ambitious rule 1. Requirements for Reasonable Further submittal provides for expeditious Progress development, adoption, and attainment through the implementation implementation schedules, which both of all RACM and RACT. As discussed CAA Section 172(c)(2) requires that the District and CARB have above in section V.B, we are proposing plans for nonattainment areas shall substantially met. See 2011 Progress to approve the RACM/RACT provide for reasonable further progress Report, p. 9. EPA considers these demonstration in the South Coast 2007 (RFP). RFP is defined in section 171(1) schedules to provide sufficient time to AQMP. as ‘‘such annual incremental reductions achieve by 2014 the few remaining Third, EPA must find that the in emissions of the relevant air pollutant reductions needed to attain by the emissions reductions that are relied on as are required by this part or may proposed attainment date of April 5, for attainment are creditable. As reasonably be required by the 2015. We, therefore, conclude that the discussed in section V.C.5, the South Administrator for the purpose of third factor is satisfied. Coast 2007 AQMP relies principally on ensuring attainment of the applicable [NAAQS] by the applicable date.’’ b. Federal Reductions adopted and approved/waived rules to achieve the emissions reductions The PM2.5 implementation rule As discussed in our November 2010 needed to attain the 1997 PM2.5 requires submittal of an RFP plan at the proposal and as shown in Table 7, the standards in the South Coast same time as the attainment South Coast 2007 AQMP assigns 10 tons nonattainment area by April 5, 2015. demonstration for any area for which per day of NOX reductions to the The balance of the reductions is the State seeks an extension of the Federal government. However, because currently in the form of enforceable attainment date beyond 2010. For areas the CAA does not authorize a State to commitments that account for 11% of for which the state requests an assign responsibility to the Federal the NOX, 8% of the direct PM2.5, and 3% attainment date extension to 2015, such government for meeting SIP of the VOC emission reductions needed as the South Coast nonattainment area, requirements, we cannot accept the 10 from 2002 levels for attainment. See the RFP plan must demonstrate that in tpd NOX emissions reductions Table 7. the applicable milestone years of 2009 emissions reductions the District and EPA has previously accepted and 2012, emissions in the area will be State assigned to the Federal enforceable commitments in lieu of at a level consistent with generally government in the South Coast 2007 adopted control measures in attainment linear progress in reducing emissions AQMP. demonstrations when circumstances between the base year and the The District has further addressed the warrant it and the commitments meet attainment year. 40 CFR 51.1009(d). federal assignment by committing to an three criteria. As discussed above in States may demonstrate this by showing additional reduction of 1 tpd NOX (see section V.C.5, we find that that emissions for each milestone year 2011 Progress Report, Appendix F, p. 5 circumstances here warrant the are roughly equivalent to benchmark and SCAQMD Governing Board consideration of enforceable emission levels for direct PM2.5 Resolution 11–9, March 4, 2011). In commitments and that the three criteria emissions and each PM2.5 attainment addition, CARB has committed to are met: (1) Both the State and the plan precursor addressed in the achieve the remaining portion of the District have demonstrated their attainment plan. The steps for federal assignment in the 2011 Progress capability to meet their commitments, determining the benchmark emissions Report and includes it in the remaining (2) the commitments constitute a levels to demonstrate generally linear commitment of 70 tpd of NOX. (See limited portion of the required progress are given in the PM2.5 2011 Progress Report, p. 5, and CARB emissions reductions, and (3) the implementation rule in 40 CFR Executive Order S–11–010.) As we commitments are for an appropriate 51.1009(f). stated in our November 2010 proposal, timeframe. Based on these conclusions, The RFP plan must describe the we are not accepting the 10 tpd NOX we propose to allow the State to rely on control measures that provide for federal assignment as the CAA does not these limited enforceable commitments meeting the reasonable further progress allow for such assignment. We are in its attainment demonstration. milestones for the area, the timing of proposing, however, to approve the Finally, for a PM2.5 nonattainment implementation of those measures, and State’s and District’s commitments to area that cannot attain within five years the expected reductions in emissions of achieve the emissions reductions of its designation as nonattainment, EPA direct PM2.5 and PM2.5 attainment plan previously attributed to the federal must grant an extension of the precursors. 40 CFR 51.1009(c). government. attainment date in order to approve the attainment demonstration for the area. 2. Reasonable Further Progress 6. Proposed Action on the Attainment As discussed above in section V.C.4, we Demonstration in the South Coast 2007 Demonstration propose to determine that a five-year AQMP In order to approve a SIP’s attainment extension of the attainment date is CARB provided an updated and demonstration, EPA must make several appropriate given the nonattainment revised RFP demonstration for the findings and approve the plan’s problem in the South Coast South Coast nonattainment area in proposed attainment date. nonattainment area and the availability Appendix C of the 2011 Progress Report.

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The demonstration addresses direct Coast PM2.5 RFP demonstration is effective, followed by direct PM2.5, and PM2.5, NOX, VOC and SOX and uses the summarized Table 8 below. then NOX and VOC. Therefore, the 2002 annual average day inventory as As discussed above, the District’s District’s proposed control strategy the base year inventory and 2014 as the modeling demonstration indicated that maximizes reductions of direct PM2.5

attainment year. The revised South for attainment of the 1997 PM2.5 and SOX to the extent possible. NAAQS, SOX reductions are the most

TABLE 8—REVISED RFP CALCULATIONS [Tons per average annual day]

NOX VOC Direct PM2.5 SOX

2002 baseline inventory (tpd) ...... 1093 844 99 53 Annual percentage change needed to show linear progress (%) ...... 4.87 3.7 1.01 5.35 Annual emissions reduction representing 1 year’s worth of RFP ...... 52.8 30.8 1.1 2.8

2009

Benchmark emissions level (tpd) ...... 724 628 91 34 Revised projected controlled level (tpd) ...... 677 563 89 43 Emissions above/below benchmark emissions level (tpd)a ...... ¥47 ¥65 ¥2 9 Percent above/below benchmark emissions level ...... ¥6% ¥10% ¥2% +26%

2012

Benchmark emissions level (tpd) ...... 566 534 88 26 Revised projected controlled emissions level (tpd) ...... 582 514 89 26 Emissions above/below benchmark emissions level (tpd) ...... 16 ¥20 1 0 Percent above/below benchmark emissions level (%) ...... +2.8% ¥4% +1% 0% Source: 2011 Progress Report, Appendix C, Table C–2. a A ‘‘-’’ value in the ‘‘projected shortfall’’ cell means the target has been exceeded. A bold italicized value indicates a shortfall.

3. Proposed Action on the RFP section 172(c)(2) and 40 CFR 51.1009 RFP. Finally, the SIP should contain Demonstration and that the South Coast nonattainment trigger mechanisms for the contingency area has met its 2009 RFP measures and specify a schedule for EPA has reviewed the revised RFP benchmarks.35 their implementation. 72 FR 20586, p. demonstration in the 2011 Progress 20642. Report and has determined that it was E. Contingency Measures Contingency measures can include prepared consistent with applicable 1. Requirements for Contingency Federal measures and local measures EPA regulations and policies. See Measures already scheduled for implementation Section II.H of the TSD. As can be seen that provide emissions reductions in from Table 8 above, controlled Under CAA section 172(c)(9), all PM attainment plans must include excess of those needed to provide for emissions levels for NOX, direct PM2.5 2.5 RFP or expeditious attainment. EPA has and VOC were below the benchmarks contingency measures to be implemented if an area fails to meet RFP approved numerous SIPs under this for 2009, demonstrating that the South interpretation. See, for example, 62 FR Coast nonattainment area met its RFP (RFP contingency measures) and contingency measures to be 15844 (April 3, 1997) direct final rule targets for that year for those pollutants. approving Indiana ozone SIP revision; The table shows that the area has a implemented if an area fails to attain the PM NAAQS by the applicable 62 FR 66279 (December 18, 1997), final shortfall of 9 tpd of SOX in 2009. For 2.5 rule approving Illinois ozone SIP 2012, the projected controlled emissions attainment date (attainment contingency measures). These contingency measures revision; 66 FR 30811 (June 8, 2001), levels for direct PM2.5 and NOX are only must be fully adopted rules or control direct final rule approving Rhode Island slightly above the benchmark (by about ozone SIP revision; 66 FR 586 (January 1%) and the projected controlled levels measures that are ready to be implemented quickly without 3, 2001), final rule approving District of for VOC and SOX are below or at the Columbia, Maryland, and Virginia benchmarks. We find that, overall, these significant additional action by the State. 40 CFR 51.1012. They must also ozone SIP revisions; and 66 FR 634 projected controlled emissions levels (January 3, 2001), final rule approving represent generally linear progress for be measures not relied on in the plan to demonstrate RFP or attainment and Connecticut ozone SIP revision. The 2012. State may use the same measures for Based on our evaluation, which is should provide SIP-creditable emissions reductions equivalent to one year of both RFP and attainment contingency if summarized above and discussed in the measures will provide reductions in detail in section II.H. of the TSD, and 35 As discussed above in section V.A., CARB has the relevant years; however, should our proposed concurrence (discussed recently updated the inventories for several mobile measures be triggered for failure to make above in Section V.C.3) with the State’s source categories and estimates that these updates RFP, the State would need to submit would reduce, if incorporated into those determination that NOX, VOC, and SOX replacement contingency measures for inventories, the Plan’s 2002 base year NOX are attainment plan precursors and inventory by approximately 4 percent and the direct attainment purposes. ammonia is not an attainment plan PM2.5 inventory by approximately 5 percent. CARB precursor per 40 CFR 51.1002(c), we Progress Report Supplement, Attachment 1. EPA 2. Contingency Measures in the South propose to find that the South Coast evaluated the potential impact of revising the 2002 Coast 2007 AQMP base year inventories on the RFP demonstration and 2007 AQMP provides for reasonable found that the Plan would continue to show the The attainment plan for the South further progress as required by CAA RFP. See Section II.H. of the TSD. Coast nonattainment area includes

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contingency measures to be addition, the reductions are not CTY–04—Request CARB to accelerate implemented if the area fails to attain by quantified, and may be zero, because the State measure implementation—This its attainment date or fails to meet RFP proposed measure may only reduce proposed contingency measure (which requirements. The contingency future emissions increases rather than could function as both an RFP and an measures for the South Coast provide net reductions. The measure is attainment contingency measure), nonattainment area are described in not triggered by failure to meet RFP or requires the District’s Governing Board Chapter 9 of the South Coast 2007 attainment and there is no defined to adopt a resolution requesting CARB AQMP and discussed in more detail in implementation schedule. For these to accelerate the adoption and/or Appendix IV–A, section 2 of the AQMP. reasons, this proposed measure does not implementation of any remaining They are described below. meet CAA requirements for contingency control measures that have not yet been The South Coast 2007 AQMP measures. adopted or fully implemented by one describes the contingency measures in CTY–02—Clean Air Act emission fees year. South Coast 2007 AQMP, page the following way: ‘‘Although for major stationary sources—This 9–3. implementation of these measures is proposed contingency measure would Under CAA section 172(c)(9) and expected to reduce emissions, there are use fees generated from the District’s EPA’s policies interpreting this section, issues that limit the viability of these Rule 317, Clean Air Act Nonattainment contingency measures must require measures as AQMP control measures at Fees, to achieve emissions reductions. minimal additional rulemaking by the this time. Issues surrounding these The implementation of Rule 317 is State and take effect within a few measures include, but are not limited to triggered by a failure of the South Coast months of a failure to make RFP or to availability of District resources to to attain the 1-hour standard by its attain.36 implement and enforce the measure, applicable attainment date (which This proposed contingency cost-effectiveness of the measure, occurred on November 15, 2010) and measure would require additional potential adverse environmental not by any failure to make RFP or to rulemaking at the District level and impacts, potential economic impacts, potentially substantial and lengthy attain the PM2.5 NAAQS, a requirement effectiveness of emissions reductions, additional rulemaking at the State level for contingency measures for PM2.5 SIPs. and availability of methods to quantify South Coast Rule 317 (a fee equivalency to be implemented. There is no trigger emissions reductions.’’ South Coast program and demonstration) was mechanism or implementation schedule 2007 AQMP, page 9–1. adopted on February 4, 2011 and provided, and the AQMP does not The South Coast 2007 AQMP does not submitted to EPA for approval on April quantify the reductions associated with calculate the emissions reductions that 22, 2011. There is no implementation this measure. For these reasons, this are equivalent to one year’s worth of schedule provided for this contingency proposed measure does not meet CAA RFP. Based on information in the plan, measure, and the AQMP does not requirements for contingency measures. we have calculated one year’s worth of quantify the reductions associated with Post-Attainment Year Emissions RFP to be 1.1 tpd of direct PM , 52.8 2.5 this measure. For these reasons, this Reductions. Excess reductions from tpd of NO , 30.8 tpd of VOC, and 2.8 X proposed measure does not meet CAA CARB mobile source measures in 2015/ tpd of SOX. See Section II.I of the TSD. The 2011 Progress Report adds requirements for contingency measures. 2016 do not fully address the language indicating that the trigger for CTY–03—Banning pre-Tier 3 off-road contingency measure requirement for implementation of the contingency diesel engines on High Pollution the PM2.5 attainment year. There is no Advisory (HPA) days—This proposed calculation of the emissions reductions measures is nonattainment of the PM2.5 standard by April 5, 2015. (See 2011 contingency measure would equivalent of one year’s work of RFP in Progress Report, Appendix F, page (5)) complement a CARB rule which the South Coast 2007 AQMP. Additional information provided by proposed to establish declining fleet CARB’s 2011 Progress Report CARB indicates some reductions are average emissions levels for off-road included calculations for the reductions available for attainment contingency equipment over 25 horsepower (hp). associated with the existing CARB measures. See CARB Progress Report The District proposed a complementary mobile source control program for 24 measure, SC–OFFRD–1, that would ban Supplement, Attachment 2, dated May tpd of NOX and 13 tpd of VOC in the 18, 2011, in the docket for today’s the use of pre-Tier 3 off-road diesel year after attainment. However, CARB’s action. engines after 2023 on HPA days should mobile source measures do not provide The South Coast 2007 AQMP and the the South Coast nonattainment area fail sufficient reductions to meet one year’s 2011 Progress Report contained the to meet the 8-hour ozone standard. This worth of RFP, based on the information following contingency measures. proposed contingency measure would provided in the 2011 Progress Report require additional rulemaking at the CTY–01—Offsetting potential (see 2011 Progress Report, Appendix F, District level, as it is not currently emissions increase due to change in p. 3, and CARB Progress Report adopted. It also would be implemented natural gas specifications—This supplement, Attachment 2; therefore, too late in time to provide for RFP or proposed contingency measure requires post-attainment-year emissions RECLAIM facilities that use natural gas contingency reductions for PM2.5 RFP or reductions do not meet the CAA of a quality that creates more emissions attainment. In addition, the AQMP does contingency measure requirement. to offset these emissions for all not quantify the reductions associated pollutants. The measure is listed as a with this measure. For these reasons, 36 See ‘‘State Implementation Plans; General ‘‘Remaining 2003 AQMP Revision this proposed measure does not meet Preamble for the Implementation of Title I of the Control Measure’’ and thus was relied CAA requirements for contingency Clean Air Act Amendments of 1990,’’) 57 FR 13498, on in the 2003 AQMP for attainment. In measures. at 13512 (April 16, 1992).

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TABLE 9—SUMMARY OF REDUCTIONS FROM CONTINGENCY MEASURES [Tons per average annual day]

PM2.5 NOX VOC SOX

Excess reductions in the RFP demonstration that are available to meet the 2012 RFP contingency requirements (excess reduction in the 2012 RFP demonstration) ...... 0 0 0 0 New 2015 reductions available to meet the attainment contingency requirement ...... 0 24 13 0 Reductions equivalent to 1-year’s worth of RFP ...... 1 .1 52 .8 30 .8 2 .8 Source: 2011 Progress Report (see 2011 Progress Report, Appendix F, p. 3.

3. Proposed Action on the Contingency worth of RFP when considered on a per- the budgets until EPA had made an Measures pollutant basis. affirmative adequacy finding based on a Based on this evaluation and for the preliminary review of the SIP. MPOs We are not evaluating the provisions reasons stated above, we are proposing must use budgets in a submitted but not in the South Coast 2007 AQMP that to disapprove the District’s contingency yet approved SIP, after EPA has address contingency measures for measure provisions for the 2012 RFP determined that the budgets are failure to meet the 2009 RFP year and the attainment year in the adequate. In order for us to find these benchmarks. Information in the 2011 South Coast 2007 AQMP for PM2.5 as emissions levels or ‘‘budgets’’ adequate Progress Report shows that South Coast not meeting the requirements of CAA and/or approvable, the submittal must met its 2009 benchmarks for direct section 172(c)(9) and 40 CFR 51.1012. meet the conformity adequacy PM2.5, NOX, and VOC. See 2011 Progress provisions of 40 CFR 93.118(e)(4) and F. Motor Vehicle Emissions Budgets for Report, Appendix C, Table C–2. SOX (5). Additionally, motor vehicle emissions were higher than the linear Transportation Conformity emissions budgets cannot be approved benchmark, but were corrected by the 1. Requirements for Transportation until EPA completes a detailed review 2012 linear benchmark. See 2011 Conformity of the entire SIP and determines that the Progress report, Table C–2, and section SIP and the budgets will achieve their Transportation conformity is required II.H of the TSD. Therefore, contingency intended purpose (i.e., RFP, attainment by section 176(c) of the CAA. Actions measures for failure to meet the 2009 or maintenance). For more information RFP benchmark no longer have any involving Federal Highway on the transportation conformity meaning or effect under the CAA and Administration (FHWA) or Federal requirement and applicable policies on therefore do not require any review or Transit Administration (FTA) funding budgets, please visit our transportation action by EPA. In addition, as noted or approval are subject to the EPA’s conformity Web site at: http:// above, the purpose of RFP contingency transportation conformity rule, codified www.epa.gov/otaq/stateresources/ measures is to provide continued at 40 CFR part 93, subpart A. Our transconf/index.htm. transportation conformity rule requires progress while the SIP is being revised PM2.5 attainment and RFP plans that transportation plans, programs, and to meet a missed RFP milestone. Failure should identify budgets for direct PM2.5 projects developed by Metropolitan to meet the 2009 benchmark would have and PM2.5 attainment plan precursors. Planning Organizations (MPOs) in required California to revise the South Direct PM2.5 budgets should include nonattainment and maintenance areas Coast 2007 AQMP to assure that the PM2.5 motor vehicle emissions from next milestone was met and that the conform to SIPs and establishes the tailpipe, brake wear, and tire wear. plan still provided for attainment. criteria and procedures for determining States must also consider whether re- California has already prepared and whether or not they do so. Conformity entrained paved and unpaved road dust submitted a revision to the South Coast to the SIP means that transportation or highway and transit construction 2007 AQMP that shows that the SIP activities will not cause or contribute to dust are significant contributors and continues to provide for RFP and for new air quality violations, worsen should be included in the direct PM2.5 attainment by April 5, 2015. This existing violations, or delay timely budget. (See 40 CFR 93.102(b) and revision is the 2011 Progress Report, attainment of the national ambient air 93.122(f) and the conformity rule which is one of the submittals that EPA quality standards or any interim preamble at 69 FR 40004, 40031–40036 is proposing action on in this notice. milestone. (July 1, 2004)). The applicability of Control strategy SIP submittals (such emission trading between conformity The South Coast 2007 AQMP includes as RFP and attainment SIP submittals) budgets for conformity purposes is suggestions for several contingency must specify the maximum emissions of described in 40 CFR 93.124(c). measures that do not meet the CAA’s transportation-related emissions from minimum requirements. The measures existing and planned highway and 2. Budgets in the South Coast 2007 proposed by the District are not transit systems allowed in the AQMP and Additional 2008 Submittal adopted, and does not quantify the appropriate years, i.e., the motor vehicle As submitted on November 28, 2007, expected emissions reductions in order emissions budgets (‘‘budgets’’). The the 2007 South Coast AQMP included a to gauge whether they provide submittal must also demonstrate that set of PM2.5 budgets for direct PM2.5, and reductions equivalent to one year’s these transportation-related emissions the PM2.5 precursors NOX and VOC for worth of RFP. levels, when considered with emissions RFP years 2009 and 2012, the The continuing implementation of the from all other sources, are consistent attainment year 2014, and 2023 and State’s mobile source program will with RFP or attainment of the NAAQS, 2030. The direct PM2.5 budgets include reduce emissions substantially in 2015 whichever is applicable. MPOs cannot tailpipe, brake wear, tire wear, and (the year after the 2014 attainment year). use the budgets and DOT cannot paved road, unpaved road, and However, as shown in Table 9, these approve a Regional Transportation Plan construction dust. See CARB Resolution reductions do not provide emissions (RTP) or Transportation Improvement 07–05, which revised the budgets in the reductions equivalent to one year’s Program (TIP) conformity analysis using 2007 South Coast AQMP as adopted by

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the District, and which was included in EPA’s adequacy Web page on February no applicable conformity analysis years the November 28, 2007 submittal. We 12, 2008 and the availability of the prior to 2012. refer herein to these budgets as the replacement (then available in draft The submittal also includes a ‘‘original’’ budgets. On April 30, 2008, form) was announced for public proposed trading mechanism for CARB submitted a SIP revision that comment on March 27, 2008. EPA transportation conformity analyses that replaced the original set of PM2.5 received comments from the public in would allow future decreases in NOX budgets with two new sets of budgets response to both postings. emissions from on-road mobile sources On May 6, 2008, we found the ‘‘SIP- (herein, ‘‘replacement’’ budgets). One to offset any on-road increases in PM2.5, based’’ PM2.5 budgets for the 2007 South set of the replacement budgets is using a NOX to PM2.5 ratio of 10 to 1. referred to as ‘‘SIP-based’’ budgets, and Coast AQMP, as revised on April 30, Transportation conformity trading the other set is referred to as ‘‘baseline’’ 2008, to be inadequate for transportation mechanisms are allowed under 40 CFR budgets. In its April 30, 2008 submittal, conformity purposes. See the letter and 93.124. The basis for the trading CARB requested that EPA give primary enclosures dated May 6, 2008 from mechanism is the SIP attainment consideration to the ‘‘SIP-based’’ Deborah Jordan, Director, Air Division, modeling which established the relative budgets and only find the ‘‘baseline’’ EPA Region 9 to James Goldstene, contribution of each PM2.5 precursor budgets to be adequate if EPA cannot Executive Officer, CARB (a copy of pollutant. find the ‘‘SIP-based’’ budgets adequate which has been placed in the docket for As proposed in the 2011 Progress in their entirety. this rulemaking). However, in our May The replacement budgets submitted 2008 adequacy determination, we found Report, this trading mechanism would only be used, if needed, for conformity on April 30, 2008 differ from the the ‘‘baseline’’ PM2.5 budgets for RFP original budgets in that they reflect the years 2009 and 2012 to be adequate. analyses for years after 2014. To ensure EPA-approved EMFAC2007 motor Generally, we found the ‘‘SIP-based’’ that the trading mechanism does not vehicle emissions factor model (see 73 budgets to be inadequate because they impact the ability of the South Coast FR 3464, January 18, 2008) rather than reflected control measures not yet nonattainment area to meet the NOX District’s CEPA emission factor model, adopted in regulatory form and thus not budget, the NOX emission reductions which had been used for the original adequately quantified or supported by available to supplement the PM2.5 budgets. The ‘‘SIP-based’’ budgets the plan. In contrast, we found the budget would only be those remaining after the 2014 NOX budget has been met. reflect emissions reductions from rules ‘‘baseline’’ PM2.5 budgets to be adopted by October 2006 and also from consistent with the plan’s RFP Clear documentation of the calculations control measures CARB expected to demonstration and to be based on used in the trading would be included adopt in regulatory form in the future. adopted mobile source regulations that in the conformity analysis. See 2011 The ‘‘baseline’’ budgets differ from the have already been implemented. Our Progress Report, Appendix D, footnote ‘‘SIP-based’’ budgets by excluding notice of adequacy/inadequacy of the to Table D–1. emission reductions from control budgets was published on May 15, 2008 On June 20, 2011, CARB posted on its measures in the 2007 State Strategy that at 73 FR 28110 (corrected on June 18, Web site technical revisions to the had not been adopted in regulatory form 2008 at 73 FR 34837), and was effective updated MVEB in the 2011 Progress by October 2006.37 Moreover, the on May 30, 2008. More information on Report that were referenced in a June ‘‘baseline’’ budgets are only established this finding can be found in the TSD for 3rd letter to EPA.38 See CARB, for RFP years 2009 and 2012 whereas today’s action. ‘‘Proposed 8–Hour Ozone State the ‘‘SIP-based’’ budgets are established Implementation Plan Revisions and 4. Updated Motor Vehicle Emissions for the RFP years, the attainment year, Technical Revisions to the PM2.5 State Budgets in the 2011 Progress Report and and 2023 and 2030. Implementation Plan Transportation Additional Revisions Conformity Budgets for the South Coast 3. EPA’s 2008 Adequacy/Inadequacy CARB’s 2011 Progress Report and San Joaquin Valley Air Basins,’’ Finding contained updated budgets for the Appendix C, June 20, 2011, posted at EPA generally first conducts a South Coast nonattainment area and http://www.arb.ca.gov/planning/sip/ preliminary review of budgets their documentation in Appendices D 2007sip/2007sip.htm. These revised submitted with an attainment, RFP, or and A, respectively, of the 2011 Progress updated budgets are shown in Table 10 maintenance plan for adequacy, prior to Report. The updated budgets were for below. The technical revisions correct taking action on the plan itself, and did direct PM2.5, VOC and NOX for the RFP data entry errors in the budget so with respect to the replacement PM2.5 year of 2012 and the attainment year of calculations and remove the emission budgets in the 2007 South Coast AQMP. 2014. No updated budgets were reductions attributed to AB923 (the The availability of the original budgets included in the 2011 Progress Report for South Coast District’s light and medium was announced for public comment on the RFP year of 2009 because there are duty high emitter program).

TABLE 10—REVISED UPDATED RFP AND ATTAINMENT YEAR BUDGETS FOR THE SOUTH COAST PM2.5 NONATTAINMENT AREA

Pollutant Year VOC NOX Direct PM2.5

2012 ...... 154 326 37

37 38 With respect to the ‘‘SIP-based’’ budget for RFP October 2006. Thus, the ‘‘SIP-based’’ PM2.5 budget See letter, James M. Goldstene, Executive year 2009, however, CARB did exclude the for 2009 is the same as the ‘‘baseline’’ PM2.5 budget Officer, CARB, to Deborah Jordan, Air Division emissions reductions from measures not adopted by for that year. Director, EPA Region 9, June 3, 2011.

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TABLE 10—REVISED UPDATED RFP AND ATTAINMENT YEAR BUDGETS FOR THE SOUTH COAST PM2.5 NONATTAINMENT AREA—Continued

Pollutant Year VOC NOX Direct PM2.5

2014 ...... 132 290 35

Source: Proposed 8-Hour Ozone State Implementation Plan Revisions and Technical Revisions to the PM2.5 State Implementation Plan Trans- portation Conformity Budgets for the South Coast and San Joaquin Valley Air Basins, Appendix C, June 20, 2011.

5. Proposed Action on the Revised disapprove the budgets, a conformity for the 1997 PM2.5 NAAQS. The method Updated Budgets in the 2011 Progress freeze would take effect upon the for determining the NOX Equivalent Report effective date of the disapproval Factors is documented in CARB’s Staff EPA has evaluated the revised (usually 30 days after publication of the Report on Proposed 2007 State updated budgets against our adequacy final action in the Federal Register). A Implementation Plan for the South criteria in 40 CFR 93.118(e)(4) and (5) as conformity freeze means that only Coast Air Basin—PM2.5 Annual Average part of our review of the approvability projects in the first four years of the and 8–Hour Ozone National Ambient of the budgets. The results of this review most recent conforming RTP and TIP Air Quality Standards, September 21, are documented in Section II.J of the can proceed. During a freeze, no new 2007, Appendix C. The method TSD. We are also posting a notice of RTPs, TIPs or RTP/TIP amendments can discussed in this documentation availability on our transportation be found to conform. See 40 CFR appears to be adequate for purposes of adequacy Web site at http:// 93.120. assessing the effect of area-wide www.epa.gov/otaq/stateresources/ emissions changes, such as are used in 6. Proposed Action on the Trading conformity budgets. See Section V.D.2 transconf/currsips.htm. EPA is not Mechanism required under its Transportation above and II.B.4 of the TSD. Conformity rules to find budgets As noted above, CARB included a EPA believes that South Coast 2007 adequate prior to proposing approval of trading mechanism to be used in AQMP as revised by the 2011 Progress them. We will ultimately complete the transportation conformity analyses that Report includes an approvable trading adequacy review of these budgets, use the proposed budgets as allowed mechanism for determining which could occur when we take a final under 40 CFR 93.124. This trading transportation conformity after 2014. action on this SIP, or at an earlier date. mechanism would allow future EPA is proposing to approve the trading As discussed in sections V.C. and decreases in NOX emissions from on- mechanism and all of the criteria V.D., we have completed our detailed road mobile sources to offset any on- included in the footnote to Table D–1 as review of the South Coast 2007 AQMP road increases in PM2.5, using a enforceable components of the and supplemental submittals, including NOX:PM2.5 ratio of 10:1. To ensure that transportation conformity program for the 2011 Progress Report. Based on this the trading mechanism does not impact the South Coast nonattainment area for thorough review of these submittals, we the ability of SCAG to meet the NOX the 1997 PM2.5 NAAQS. EPA is also are proposing to approve the attainment budget, the NOX emission reductions proposing to approve the use of this and RFP demonstrations in the South available to supplement the PM2.5 ratio in transportation conformity Coast 2007 AQMP. As discussed above, budget would only be those reductions determinations for the 2006 24-hour CARB has recently posted revisions to remaining after the 2014 NOX budget PM2.5 NAAQS, but only until EPA finds the updated budgets that were has been met. The trading mechanism adequate or approves budgets developed

submitted in the 2011 Progress Report will be implemented with the following specifically for the 2006 24-hour PM2.5 standard. Until that time, conformity and intends to present these budgets for criteria. The trading applies only to: • will be determined using the budgets for adoption as a SIP revision at its July 21, Analysis years after the 2014 the 1997 annual PM NAAQS. EPA is 2011 Board meeting. After reviewing attainment year. 2.5 • not proposing, at this time, to approve these revised updated MVEBs, we are On-road mobile emission sources. • Trades using vehicle NOX emission the use of this ratio in plans for future proposing to find them to be consistent reductions in excess of those needed to PM standards or in the District’s new with the approvable attainment and RFP meet the NOX budget. source review (NSR) permitting demonstrations and to find that they • Trades in one direction from NOX program. meet all other applicable statutory and to direct PM . regulatory requirements including the 2.5 VI. EPA’s Proposed Actions and • A trading ratio of 10 tpd NOX to adequacy criteria in 40 CFR 93.118(e)(4) Consequences 1 tpd PM2.5. and (5). Therefore, EPA proposes to Clear documentation of the A. EPA’s Proposed Approvals and approve the revised updated budgets calculations used in the trading would Disapprovals based on our assumption that we will be included in the conformity analysis. For the reasons discussed above, EPA receive the revised budgets as a See 2011 Progress Report, Appendix D, proposes to approve, with the exception complete SIP revision from the State footnote to Table D–1. prior to our final action on the South EPA has reviewed the 10:1 NO :PM of the contingency measures, X 2.5 California’s SIP for attaining the 1997 Coast 2007 AQMP. If CARB is unable to ratio and finds it is an appropriate ratio PM adopt and submit the revised budgets, for trading between NO and direct 2.5 NAAQS in the South Coast X nonattainment area and to grant the then EPA intends to find inadequate PM for transportation conformity 2.5 State’s request for an extension of the and disapprove the budgets contained purposes in the South Coast Air Basin in the 2011 Progress Report.39 If we attainment date. This SIP is composed because they include uncreditable reductions from of the relevant portions of the South 39 EPA cannot approve or find adequate the AB923 and because of the technical error in the Coast 2007 AQMP as revised in 2011 budgets included in the 2011 Progress Report budget calculations. and the South Coast-specific portions of

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CARB’s 2007 State Strategy as revised in measures in the South Coast 2007 42 U.S.C. 7410(k); 40 CFR 52.02(a). 2009 and 2011. AQMP for failing to meet the Thus, in reviewing SIP submittals, Specifically, EPA proposes to approve requirements of CAA section 172(c)(9) EPA’s role is to approve state choices, under CAA section 110(k)(3) the and 40 CFR 51.1012. provided that they meet the criteria of following elements of the South Coast the CAA. Accordingly, this action B. CAA Consequences of a Final PM2.5 attainment SIP: merely proposes to partially approve Disapproval (1) The 2002 base year emissions and partially disapprove state law as inventories as meeting the requirements EPA is committed to working with the meeting Federal requirements and does of CAA section 172(c)(3) and 40 CFR District, CARB and SCAG to resolve the not impose additional requirements 51.1008; remaining issues with the SIP that make beyond those imposed by state law. (2) the reasonably available control the current PM2.5 attainment SIP for the measures/reasonably available control South Coast nonattainment area not A. Executive Order 12866, Regulatory technology demonstration as meeting fully approvable under the CAA and the Planning and Review the requirements of CAA sections PM2.5 implementation rule. However, This action is not a ‘‘significant 172(c)(1) and 40 CFR 51.1010; should we finalize the proposed regulatory action’’ under the terms of (3) the reasonable further progress disapproval of the contingency measure Executive Order (EO) 12866 (58 FR demonstration as meeting the provisions in the South Coast 2007 51735, October 4, 1993) and is therefore requirements of CAA section 172(c)(2) AQMP or finalize a disapproval of the not subject to review under the EO. transportation conformity emissions and 40 CFR 51.1009; B. Paperwork Reduction Act (4) the attainment demonstration as budgets, the offset sanction in CAA meeting the requirements of CAA section 179(b)(2) would apply in the This action does not impose an section 172(c)(1) and(6) and 40 CFR South Coast PM2.5 nonattainment area information collection burden under the 51.1007; 18 months after the effective date of a provisions of the Paperwork Reduction (5) the air quality modeling as final disapproval. The highway funding Act, 44 U.S.C. 3501 et seq, because this meeting the requirements of the CAA sanctions in CAA section 179(b)(1) proposed SIP partial approval and and EPA guidance; would apply in the area six months after partial disapproval under CAA section (6) the revised updated 2012 RFP and the offset sanction is imposed. Neither 110 and subchapter I, part D will not in- 2014 attainment year motor vehicle sanction will be imposed under the and-of itself create any new information emissions budgets as posted by CARB CAA if California submits and we collection burdens but simply approves on June 20, 2011 contingent upon our approve prior to the implementation of certain State requirements for inclusion receipt of a SIP revision, because they sanctions, SIP revisions that correct the into the SIP and disapproves others. are derived from the approvable RFP deficiencies identified in our proposed Burden is defined at 5 CFR 1320.3(b). and attainment demonstrations and action. In addition to the sanctions, C. Regulatory Flexibility Act meet the requirements of CAA section CAA section 110(c)(1) provides that 176(c) and of 40 CFR 93, subpart A; and EPA must promulgate a federal The Regulatory Flexibility Act (RFA) CARB’s trading mechanism to be used implementation plan addressing the generally requires an agency to conduct in transportation conformity analyses as deficient elements in the PM2.5 SIP for a regulatory flexibility analysis of any allowed under 40 CFR 93.124; the South Coast nonattainment area two rule subject to notice and comment (7) SCAQMD’s commitments to the years after the effective date of any rulemaking requirements unless the adoption and implementation schedule disapproval, should we not approve a agency certifies that the rule will not for specific control measures listed in SIP revision correcting the deficiencies have a significant economic impact on Tables 2 through 5 in Appendix F of the within the two years. a substantial number of small entities. 2011 Progress Report to the extent that Because we are proposing to approve Small entities include small businesses, these commitments have not yet been the RFP and attainment demonstrations small not-for-profit enterprises, and fulfilled; and and the motor vehicle emission budgets, small governmental jurisdictions. For (8) CARB’s commitments to propose we are proposing to issue a protective purposes of assessing the impacts of certain defined measures, as listed in finding under 40 CFR 93.120(a)(3) to the today’s rule on small entities, small Table B–1 on page 1 of Appendix B of disapproval of the contingency entity is defined as: (1) A small business the 2011 Progress Report and to achieve measures. Without a protective finding, as defined by the Small Business aggregate emission reductions by 2014 final disapproval would result in a Administration’s (SBA) regulations at 13 sufficient to provide for attainment of conformity freeze under which only CFR 121.201; (2) a small governmental the 1997 PM2.5 NAAQS as described in projects in the first four years of the jurisdiction that is a government of a CARB Resolution 07–28, Attachment B. most recent conforming RTP and TIP city, county, town, school district or EPA also proposes to concur with the can proceed. During a freeze, no new special district with a population of less State’s determination under 40 CFR RTPs, TIPs or RTP/TIP amendments can than 50,000; and (3) a small 51.1002(c) that NOX, SOX, and VOC are be found to conform. See 40 CFR organization that is any not-for-profit attainment plan precursors and 93.120(a)(2). Under a protective finding, enterprise which is independently ammonia is not an attainment plan however, final disapproval of the owned and operated and is not precursor for attainment of the 1997 contingency measures would not result dominant in its field. PM2.5 NAAQS in the South Coast in a transportation conformity freeze in After considering the economic nonattainment area. the South Coast PM2.5 nonattainment impacts of today’s proposed rule on EPA proposes to grant, pursuant to area. small entities, I certify that this action CAA section 172(a)(2)(A) and 40 CFR will not have a significant impact on a 51.1004(a), California’s request to VII. Statutory and Executive Order substantial number of small entities. extend the attainment date for the South Reviews This rule does not impose any Coast PM2.5 nonattainment area to April Under the CAA, the Administrator is requirements or create impacts on small 5, 2015. required to approve a SIP submission entities. This proposed partial approval EPA proposes to disapprove under that complies with the provisions of the and partial disapproval of the SIP under CAA section 110(k)(3) the contingency Act and applicable Federal regulations. CAA section 110 and subchapter I, part

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D will not in-and-of itself create any responsibilities among the various standards are technical standards (e.g., new requirements but simply approves levels of government, as specified in materials specifications, test methods, certain State requirements for inclusion Executive Order 13132, because it sampling procedures, and business into the SIP and disapproves others. merely proposed to partially approve practices) that are developed or adopted Accordingly, it affords no opportunity and partially disapprove certain State by voluntary consensus standards for EPA to fashion for small entities less requirements for inclusion into the SIP bodies. NTTAA directs EPA to provide burdensome compliance or reporting and does not alter the relationship or Congress, through OMB, explanations requirements or timetables or the distribution of power and when the Agency decides not to use exemptions from all or part of the rule. responsibilities established in the Clean available and applicable voluntary The fact that the CAA prescribes that Air Act. Thus, Executive Order 13132 consensus standards. various consequences (e.g., higher offset does not apply to this action. EPA believes that this action is not requirements) may or will flow from subject to requirements of Section 12(d) this disapproval does not mean that F. Executive Order 13175, Coordination With Indian Tribal Governments of NTTAA because application of those EPA either can or must conduct a requirements would be inconsistent This action does not have tribal regulatory flexibility analysis for this with the Clean Air Act. action. Therefore, this action will not implications, as specified in Executive have a significant economic impact on Order 13175 (65 FR 67249, November 9, J. Executive Order 12898: Federal a substantial number of small entities. 2000), because the SIP EPA is proposing Actions To Address Environmental We continue to be interested in the to partially approve and partially Justice in Minority Populations and potential impacts of this proposed rule disapprove would not apply in Indian Low-Income Populations on small entities and welcome country located in the state, and EPA comments on issues related to such notes that it will not impose substantial Executive Order (EO) 12898 (59 FR impacts. direct costs on tribal governments or 7629 (Feb. 16, 1994)) establishes federal executive policy on environmental D. Unfunded Mandates Reform Act preempt tribal law. Thus, Executive Order 13175 does not apply to this justice. Its main provision directs This action contains no Federal action. federal agencies, to the greatest extent mandates under the provisions of Title practicable and permitted by law, to II of the Unfunded Mandates Reform G. Executive Order 13045, Protection of make environmental justice part of their Act of 1995 (UMRA), 2 U.S.C. 1531– Children From Environmental Health mission by identifying and addressing, 1538 for State, local, or tribal Risks and Safety Risks as appropriate, disproportionately high governments or the private sector.’’ EPA EPA interprets E.O. 13045 (62 FR and adverse human health or has determined that the proposed 19885, April 23, 1997) as applying only environmental effects of their programs, approval and disapproval action does to those regulatory actions that concern policies, and activities on minority not include a Federal mandate that may health or safety risks, such that the populations and low-income result in estimated costs of $100 million analysis required under section 5–501 of populations in the United States. or more to either State, local, or tribal the E.O. has the potential to influence EPA lacks the discretionary authority governments in the aggregate, or to the the regulation. This action is not subject to address environmental justice in this private sector. This action proposes to to E.O. 13045 because it because it is not proposed action. In reviewing SIP partially approve and partially an economically significant regulatory submissions, EPA’s role is to approve or disapprove pre-existing requirements action based on health or safety risks disapprove state choices, based on the under State or local law, and imposes subject to Executive Order 13045 (62 FR criteria of the Clean Air Act. no new requirements. Accordingly, no 19885, April 23, 1997). This proposed Accordingly, this action merely additional costs to State, local, or tribal partial approval and partial disapproval proposes to approve certain State governments, or to the private sector, of the SIP under CAA section 110 and requirements for inclusion into the SIP result from this action. subchapter I, part D will not in-and-of under CAA section 110 and subchapter E. Executive Order 13132, Federalism itself create any new regulations but I, part D and to disapprove others will simply disapproves certain State not in-and-of itself create any new Executive Order 13132, entitled requirements for inclusion into the SIP. ‘‘Federalism’’ (64 FR 43255, August 10, requirements. Accordingly, it does not 1999), requires EPA to develop an H. Executive Order 13211, Actions That provide EPA with the discretionary accountable process to ensure Significantly Affect Energy Supply, authority to address, as appropriate, ‘‘meaningful and timely input by State Distribution, or Use disproportionate human health or environmental effects, using practicable and local officials in the development of This proposed rule is not subject to and legally permissible methods, under regulatory policies that have federalism Executive Order 13211 (66 FR 28355, Executive Order 12898. implications.’’ ‘‘Policies that have May 22, 2001) because it is not a federalism implications’’ is defined in significant regulatory action under List of Subjects in 40 CFR Part 52 the Executive Order to include Executive Order 12866. regulations that have ‘‘substantial direct Environmental protection, Air effects on the States, on the relationship I. National Technology Transfer and pollution control, Nitrogen dioxide, between the national government and Advancement Act Particulate matter, Reporting and the States, or on the distribution of Section 12(d) of the National recordkeeping requirements, Sulfur power and responsibilities among the Technology Transfer and Advancement oxides, Volatile organic compounds. various levels of government.’’ Act of 1995 (‘‘NTTAA’’), Public Law Authority: 42 U.S.C. 7401 et seq. This action does not have federalism 104–113, 12(d) (15 U.S.C. 272 note) implications. It will not have substantial directs EPA to use voluntary consensus Dated: June 29, 2011. direct effects on the States, on the standards in its regulatory activities Jared Blumenfeld, relationship between the national unless to do so would be inconsistent Regional Administrator, EPA Region 9. government and the States, or on the with applicable law or otherwise [FR Doc. 2011–17229 Filed 7–13–11; 8:45 am] distribution of power and impractical. Voluntary consensus BILLING CODE 6560–50–P

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Part III

The President

Executive Order 13579—Regulation and Independent Regulatory Agencies

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Federal Register Presidential Documents Vol. 76, No. 135

Thursday, July 14, 2011

Title 3— Executive Order 13579 of July 11, 2011

The President Regulation and Independent Regulatory Agencies

By the authority vested in me as President by the Constitution and the laws of the United States of America, and in order to improve regulation and regulatory review, it is hereby ordered as follows: Section 1. Policy. (a) Wise regulatory decisions depend on public participa- tion and on careful analysis of the likely consequences of regulation. Such decisions are informed and improved by allowing interested members of the public to have a meaningful opportunity to participate in rulemaking. To the extent permitted by law, such decisions should be made only after consideration of their costs and benefits (both quantitative and qualitative). (b) Executive Order 13563 of January 18, 2011, ‘‘Improving Regulation and Regulatory Review,’’ directed to executive agencies, was meant to produce a regulatory system that protects ‘‘public health, welfare, safety, and our environment while promoting economic growth, innovation, com- petitiveness, and job creation.’’ Independent regulatory agencies, no less than executive agencies, should promote that goal. (c) Executive Order 13563 set out general requirements directed to execu- tive agencies concerning public participation, integration and innovation, flexible approaches, and science. To the extent permitted by law, independent regulatory agencies should comply with these provisions as well. Sec. 2. Retrospective Analyses of Existing Rules. (a) To facilitate the periodic review of existing significant regulations, independent regulatory agencies should consider how best to promote retrospective analysis of rules that may be outmoded, ineffective, insufficient, or excessively burdensome, and to modify, streamline, expand, or repeal them in accordance with what has been learned. Such retrospective analyses, including supporting data and evaluations, should be released online whenever possible. (b) Within 120 days of the date of this order, each independent regulatory agency should develop and release to the public a plan, consistent with law and reflecting its resources and regulatory priorities and processes, under which the agency will periodically review its existing significant regulations to determine whether any such regulations should be modified, streamlined, expanded, or repealed so as to make the agency’s regulatory program more effective or less burdensome in achieving the regulatory objec- tives. Sec. 3. General Provisions. (a) For purposes of this order, ‘‘executive agency’’ shall have the meaning set forth for the term ‘‘agency’’ in section 3(b) of Executive Order 12866 of September 30, 1993, and ‘‘independent regu- latory agency’’ shall have the meaning set forth in 44 U.S.C. 3502(5). (b) Nothing in this order shall be construed to impair or otherwise affect: (i) authority granted by law to a department or agency, or the head thereof; or (ii) functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals. (c) This order shall be implemented consistent with applicable law and subject to the availability of appropriations.

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(d) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.

THE WHITE HOUSE, July 11, 2011.

[FR Doc. 2011–17953 Filed 7–13–11; 11:15 am] Billing code 3195–W1–P

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Reader Aids Federal Register Vol. 76, No. 135 Thursday, July 14, 2011

CUSTOMER SERVICE AND INFORMATION CFR PARTS AFFECTED DURING JULY

Federal Register/Code of Federal Regulations At the end of each month the Office of the Federal Register General Information, indexes and other finding 202–741–6000 publishes separately a List of CFR Sections Affected (LSA), which aids lists parts and sections affected by documents published since Laws 741–6000 the revision date of each title. 121...... 40798 Presidential Documents 2 CFR Proposed Rules: Executive orders and proclamations 741–6000 Proposed Rules: 25...... 41142 The United States Government Manual 741–6000 Ch. XIV ...... 40645 33...... 39795 Other Services 3 CFR 39 ...... 39033, 39035, 40286, 40288, 40291, 41144, 41430, Electronic and on-line services (voice) 741–6020 Proclamations: 41432 Privacy Act Compilation 741–6064 8691...... 40215 71 ...... 38580, 38581, 38582, Public Laws Update Service (numbers, dates, etc.) 741–6043 Executive Orders: 38584, 38585, 39038, 40293, TTY for the deaf-and-hard-of-hearing 741–6086 13578...... 40591 40295, 41145, 41147 13579...... 41587 139...... 40648 ELECTRONIC RESEARCH 5 CFR 15 CFR World Wide Web 2634...... 38547 4...... 39769 Full text of the daily Federal Register, CFR and other publications 2635...... 38547 730...... 40602 is located at: www.fdsys.gov. Proposed Rules: 738...... 41046 Federal Register information and research tools, including Public Ch. XXI ...... 39315 740...... 41046 Inspection List, indexes, and links to GPO Access are located at: 748...... 40602, 40804 www.ofr.gov. 6 CFR 754...... 40602 E-mail 5...... 39245 806...... 39260 Proposed Rules: Proposed Rules: FEDREGTOC-L (Federal Register Table of Contents LISTSERV) is 5...... 39315 713...... 41366 an open e-mail service that provides subscribers with a digital 714...... 41372 form of the Federal Register Table of Contents. The digital form 7 CFR 716...... 41366 of the Federal Register Table of Contents includes HTML and 3430...... 38548, 40593 PDF links to the full text of each document. 16 CFR To join or leave, go to http://listserv.access.gpo.gov and select 10 CFR Proposed Rules: Online mailing list archives, FEDREGTOC-L, Join or leave the list 50...... 40777 Ch. 1 ...... 41150 (or change settings); then follow the instructions. 430...... 39245 423...... 41148 835...... 38550 PENS (Public Law Electronic Notification Service) is an e-mail 17 CFR service that notifies subscribers of recently enacted laws. Proposed Rules: 30...... 40282 1...... 41048 To subscribe, go to http://listserv.gsa.gov/archives/publaws-l.html 150...... 40282 180...... 41398 and select Join or leave the list (or change settings); then follow Ch. II ...... 40646 200...... 39769 the instructions. 430...... 40285 230...... 40223, 40605 FEDREGTOC-L and PENS are mailing lists only. We cannot Ch. III ...... 40646 240 ...... 40223, 40605, 41056 respond to specific inquiries. Ch. X...... 40646 249...... 41056 260...... 40223, 40605 Reference questions. Send questions and comments about the 12 CFR 275...... 39646 Federal Register system to: [email protected] Ch. I ...... 39246 Proposed Rules: The Federal Register staff cannot interpret specific documents or Ch. III ...... 39246 Ch. IV...... 39315 regulations. 48...... 41375 18 CFR Reminders. Effective January 1, 2009, the Reminders, including 329...... 41392 Rules Going Into Effect and Comments Due Next Week, no longer 330...... 41392 1301...... 39261 appear in the Reader Aids section of the Federal Register. This 349...... 40779 Proposed Rules: information can be found online at http://www.regulations.gov. Proposed Rules: 806...... 41154 Ch. I ...... 39315 CFR Checklist. Effective January 1, 2009, the CFR Checklist no 19 CFR longer appears in the Federal Register. This information can be Ch. V...... 39315 found online at http://bookstore.gpo.gov/. Ch. XV ...... 39315 351...... 39263, 39770 Ch. XVIII ...... 38577, 39315 Proposed Rules: Ch. I ...... 39315 FEDERAL REGISTER PAGES AND DATE, JULY 14 CFR 201...... 39750 38547–38960...... 1 25 ...... 38550, 39763, 41041, 206...... 39750 38961–39244...... 5 41045 207...... 39750 210...... 39750 39245–39762...... 6 33...... 40594 39 ...... 39248, 39251, 39254, 39763–40214...... 7 39256, 40217, 40219, 40222, 20 CFR 40215–40590...... 8 40596, 41395 418...... 38552 40591–40776...... 11 71 ...... 39259, 40597, 40598, 40777–41040...... 12 40797, 41397 21 CFR 41041–41374...... 13 91...... 39259 16...... 38961 41375–41588...... 14 97...... 40598, 40600 201...... 38975

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510...... 39278, 40612 Ch. I ...... 39315 52 ...... 38572, 38977, 38997, 15...... 40263 520 ...... 38554, 40229, 40808 Ch. II ...... 39315 39303, 39775, 39777, 40237, 76...... 40263 1107...... 38961 Ch. IV...... 39315 40242, 40246, 40248, 40258, Ch. V...... 39315 40262, 40619, 40624, 41075, Proposed Rules: 48 CFR 16...... 41557 Ch. VI...... 39315 41086, 41088, 41100, 41111, 118...... 41557 Ch. VII...... 39315 41123, 41424 Ch. I...... 39241, 39243 Ch. II ...... 40552 Ch. VIII...... 39315 85...... 39478 1...... 39233 203...... 41434 Ch. IX...... 39315 86...... 39478 4...... 39234 1301...... 39318 Ch. X...... 39315 180 ...... 40628, 40811, 40849, 9...... 39236 1308...... 39039 41135 16...... 39238 32 CFR 1309...... 39318 600...... 39478 22...... 39233 199...... 41063 Proposed Rules: 23...... 39240 22 CFR 706...... 40233 Ch. 1 ...... 41178 52 ...... 39233, 39236, 39240, Proposed Rules: Proposed Rules: 52 ...... 38589, 39357, 39797, 39242 123...... 41438, 41440 199...... 39043 40303, 40652, 40660, 40662, 1509...... 39015 41158, 41338, 41444, 41562 1542...... 39015 24 CFR 33 CFR 60...... 38590 1552...... 39015 3500...... 40612 100 ...... 39289, 39292, 39771 63...... 38590, 38591 1834...... 40280 Proposed Rules: 117 ...... 39298, 39773, 39774, 80...... 38844 9901...... 40817 81...... 39798 17...... 39222 39775, 40234, 40237, 40616, 9903...... 40817 97...... 40662 200...... 41441 40617 Proposed Rules: 165 ...... 38568, 38570, 38975, 131...... 38592 25 CFR 180...... 39358 2...... 41179 39292, 40617, 40808, 41065, 11...... 41179 41073 721...... 40850 Proposed Rules: 23...... 41179 Ch. I ...... 40645 Proposed Rules: 41 CFR 52...... 41179 Ch. II ...... 40645 165...... 38586 Ch. 10 ...... 39315 Ch. III ...... 40645 Proposed Rules: Ch. 114 ...... 40645 Ch. 14 ...... 40645 Ch. V...... 40645 34 CFR Ch. VI...... 40645 Proposed Rules: 42 CFR Ch. VII...... 40645 49 CFR Subtitle A ...... 39343 88...... 38914 Subtitle B ...... 39343 26 CFR 422...... 39006 190...... 40820 Ch. I ...... 39343 480...... 39006 383...... 39018 1...... 39278 Ch. II ...... 39343 Proposed Rules: 384...... 39018 48...... 39278 Ch. III ...... 39343 5...... 39062 544...... 41138 Proposed Rules: Ch. IV...... 39343 88...... 38938 575...... 39478 Ch. I ...... 39315 Ch. V...... 39343 409...... 40988 1002...... 39788 1...... 39341, 39343 Ch. VI...... 39343 412...... 41178 Ch. VII...... 39343 Proposed Rules: 27 CFR 413...... 40498, 41178 Ch. II ...... 40320 Ch. XI...... 39343 414...... 40498 Proposed Rules: 382...... 40306 36 CFR 424...... 40988 383...... 38597 Ch. I ...... 39315 440...... 41032 Proposed Rules: 390...... 38597 28 CFR 476...... 41178 391...... 40306 Ch. I ...... 40645 484...... 40988 549...... 40229 7...... 39048, 39350 571...... 40860, 41181 1260...... 40296 43 CFR 29 CFR 10...... 39007 50 CFR 2205...... 39283 37 CFR Proposed Rules: 17...... 38575 Proposed Rules: 251...... 41075 Subtitle A ...... 40645 1910...... 39041 Proposed Rules: 224...... 40822 Ch. I ...... 40645 622...... 41141 Ch. I ...... 39796 Ch. II ...... 40645 30 CFR 2...... 40839 635...... 39019 250...... 38555 7...... 40839 44 CFR 648...... 39313 660...... 40836 948...... 41411 64...... 39782 38 CFR 1204...... 38555 65...... 39009, 40815 679 ...... 39789, 39790, 39791, 1206...... 38555 Proposed Rules: 67...... 39011, 39305 39792, 39793, 39794, 40628, 40836, 40837, 40838 1218...... 38555 3...... 39062 Proposed Rules: 1241...... 38555 4...... 39160 67 ...... 39063, 39800, 40670 Proposed Rules: 1290...... 38555 14...... 39062 Ch. I ...... 40645 Proposed Rules: 20...... 39062 45 CFR 17 ...... 39804, 39807, 40868 Ch. II ...... 40649 160...... 40458 21...... 39367, 39368 39 CFR Ch. IV...... 40649 162...... 40458 32...... 39186 Ch. VII...... 40649 111...... 39299, 41411 Proposed Rules: 217...... 39706 914...... 40649 241...... 41413 2510...... 39361 Ch. IV...... 40645 Ch. XII...... 40649 Proposed Rules: 2540...... 39361 226...... 41446 111...... 40844 2551...... 39361 300...... 39808 31 CFR 2552...... 39361 635...... 38598 570...... 38562 40 CFR 648...... 39369, 39374 Proposed Rules: 49...... 38748 47 CFR 665...... 40674 Subtitle A ...... 39315 51...... 38748 1...... 40817 679...... 40674

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Superintendent of Documents, the ‘‘Marine Sgt. Jeremy E. U.S. Government Printing Murray Post Office’’. (June 29, LIST OF PUBLIC LAWS Office, Washington, DC 20402 2011; 125 Stat. 236) Public Laws Electronic (phone, 202–512–1808). The Notification Service This is a continuing list of text will also be made S. 655/P.L. 112–23 (PENS) public bills from the current available on the Internet from session of Congress which GPO’s Federal Digital System To designate the facility of the have become Federal laws. It (FDsys) at http://www.gpo.gov/ United States Postal Service PENS is a free electronic mail may be used in conjunction notification service of newly fdsys. Some laws may not yet located at 95 Dogwood Street with ‘‘P L U S’’ (Public Laws be available. enacted public laws. To Update Service) on 202–741– in Cary, Mississippi, as the subscribe, go to http:// 6043. This list is also H.R. 2279/P.L. 112–21 ‘‘Spencer Byrd Powers, Jr. listserv.gsa.gov/archives/ available online at http:// Airport and Airway Extension Post Office’’. (June 29, 2011; publaws-l.html www.archives.gov/federal- Act of 2011, Part III (June 29, 125 Stat. 237) Note: This service is strictly register/laws. 2011; 125 Stat. 233) Last List June 28, 2011 for E-mail notification of new The text of laws is not S. 349/P.L. 112–22 laws. The text of laws is not published in the Federal To designate the facility of the available through this service. Register but may be ordered United States Postal Service PENS cannot respond to in ‘‘slip law’’ (individual located at 4865 Tallmadge specific inquiries sent to this pamphlet) form from the Road in Rootstown, Ohio, as address.

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